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ALTHOUGH
IT IS PROPER FOR A LAWYER WHEN REQUESTED TO DO SO BY THE TESTATOR,
TO WITNESS HIS WILL OR, AFTER HIS DEATH, TO TESTIFY AS A SUBSCRIBING
WITNESS THERETO, IT IS ETHICALLY IMPROPER FOR HIM, HOWEVER, TO
REPRESENT, IN LITIGATION, A PARTY EITHER AS A PROPONENT OF SUCH
WILL OR IN A CONTEST INVOLVING THIS OR ANY OTHER WILL PURPORTEDLY
EXECUTED BY THE IDENTICAL TESTATOR.
CANONS
INTERPRETED (Professional Ethics)
Canon 19: When a lawyer is a witness for
his client, except as to merely formal matters, such as the attestation
or custody of an instrument and the like, he should leave the trial
of the case to other counsel. Except when essential to the ends
of justice, a lawyer should avoid testifying in Court in behalf
of his client.
A lawyer, who witnessed a will and codicil for a testatrix, seeks
an opinion from the Advisory Committee of the Nebraska State Bar
Association as to the ethical propriety of his representing the
executrix and legatee named therein, who has filed objections to
the probate of a later will.
The
Advisory Committee is of the opinion that it would be ethically
improper for him to do so.
Canon 19 provides that "when a lawyer is a witness for his
client, except as to merely formal matters, such as the attestation
or custody of an instrument and the like, he should leave the trial
of the case to other counsel. Except when essential to the ends
of justice, a lawyer should avoid testifying in Court in behalf
of his client".
Informal
Opinion No. 738 of the Standing Committee on Professional Ethics
of the American Bar Association, issued on December 27, 1963, states,
in effect, that an attorney may, with propriety, act as an attesting
witness to the execution of a will he has drawn, when requested
to do so by the client. Our Court has held that an attorney who
has drafted a will, and was present at the time of its execution,
is competent to testify as to factual matters concerning its execution,
such matters not being privileged communications. In re Coons' Estate,
154 Neb. 690, 48 N.W. (2nd) 778. Therefore, this attorney properly
witnessed the will which he had prepared and further, he is a competent
witness to testify regarding its execution and the circumstances
attendant thereto. In fact, he would become a necessary witness
for this purpose in this particular situation.
Since
the subsequently drawn will is being contested, this inevitably
draws into litigation the will which this attorney witnessed. Where
there is a contest, all available subscribing witnesses must be
made available to testify, if possible. Only where there is no contest,
may the will be probated on the basis of the testimony of but one
of the subscribing witnesses thereto. Section 30-218 of the Revised
Statutes of Nebraska. Therefore, it is evident that the testimony
of the attorney, who witnessed this will and codicil, will be required
in this litigation.
Canon
19 was adopted in 1908 and has never been amended. Formal Opinion
No. 50, which was the first to interpret it, stated, in effect,
that an attorney may not represent a party in a case when he knows
that he or his partner will be called to testify as a material witness
in the case. Informal Opinion No. 396, issued August 2, 1961, states
that it would be improper for a law firm, whose partners drafted
and witnessed a will, to represent the proponent in a will contest,
if the firm knows, or has reason to believe from the nature of the
contest, that the testimony of any of the partners will be of a
material nature in sustaining the will; but it would not be improper
if the testimony related simply to formal matters or to matters,
not involved in the contest. The concluding language of this Opinion
is as follows: "The Canon itself is merely crystallization
of recognized views of the bar prevailing for many years".
Certainly, what holds true for a law partnership would, a fortiori,
be even more true as to an individual practitioner, who had witnessed
the will. Drinker, in his Legal Ethics, stated that "Canon
19 does not apply to a mere formal witnessing of a will, with no
conflict. If the latter develops, he must retire as soon as his
client's interest permits".
The
contestant here is a woman, named as an executrix and as a specific
and residuary legatee under the will, witnessed by this attorney.
She, therefore, derives all of her right and authority to contest
the subsequently drawn will, from the will witnessed by this attorney
and, as to the probate of which, he becomes an indispensable witness
under our practice, where a contest in connection therewith has
arisen.
Accordingly,
it is readily apparent that it would be ethically improper for this
attorney, in this set of circumstances, to represent, in litigation,
this party, either as a proponent of this will or in a will contest
involving this or any other will purportedly executed by the identical
testator.
69-2
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