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AN ATTORNEY WHO IS REPRESENTING THE EXECUTOR IN THE PROBATE OF AN
ESTATE AND WHO DREW AND WITNESSED THE WILL BEING PROBATED NEED NOT
WITHDRAW FROM THE PROBATE PROCEEDINGS WHEN IT BECOMES APPARENT THAT
HE WILL BE A WITNESS IN AN ACTION TO CONSTRUE THE WILL BROUGHT BY
THE EXECUTOR BUT USING OTHER COUNSEL.
FACTS:
The
question posed states that the attorney will be a witness in will
construction case concerning matters which are substantial, which
may be contested and which go to the merits of the controversy concerning
construction of the will. The attorney properly declined to bring
the suit for construction of the will because of DR 5-101 (b) and
thus other counsel was engaged to bring this separate action in
district court. The Probate proceedings are wholly separate and
distinct from the suit for construction of the will. The probate
proceedings will merely execute the court's final order in the construction
suit.
DISCUSSION:
The
reasons for DR 5-101 and DR 5-102 (which forbid an attorney from
trying a case in which he is to be a material witness) are set forth
in the Ethical Considerations: EC 5-9, which states that:
"If
a lawyer is both counsel and witness, he becomes more easily impeachable
for interest and thus may be a less effective witness. Conversely,
the opposing counsel may be handicapped in challenging the credibility
of the lawyer when the lawyer also appears as an advocate in the
case. An advocate who becomes a witness is in the unseemly and ineffective
position of arguing his own credibility."
None
of these underlying reasons for the Disciplinary Rules will come
into play in this case by the mere continued representation of the
executor in the probate proceedings.
For
the above reasons, we conclude that there is no objection to the
lawyer continuing to represent the estate in the probate proceedings.
74-9, October 9, 1974
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