On May 13, 1981, Chief Disciplinary Counsel issued an Advisory Ethics Opinion and the Board of Professional Responsibility, pursuant to Section 26 of Rule 9 of the Rules of the Supreme Court of Tennessee adopted January 28, 1981, has been asked to issue a formal opinion based on the following factual situation.
Some two years ago, a client requested the attorney to prepare a will for her, but after consultation with her, both the attorney and his secretary determined that the client was not competent to make a will at that time. The client was accompanied by a friend who desired to be named as conservator for the client. The client apparently then went to another attorney who prepared a will for her, leaving part of her estate to the friend who had accompanied her to the attorney's office. Following the client's death, her son requested the attorney to represent him in challenging the will, and the question raised was as to the propriety of the attorney accepting such employment.
Obviously, both the attorney and his secretary will be material witnesses in the will contest case in which the issue of mental competence and testamentary capacity of the client will be of prime importance. Rule 8 of the Rules of the Supreme Court of Tennessee is the Code of Professional Responsibility. Disciplinary Rule 5-101(B) provides that:
A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter;
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony ....
Ethical Consideration 5-9 provides:
Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. 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. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
The lawyer should thus decline the representation if it is contemplated that either he or his secretary would appear as a witness.
This 25th day of June, 1981.
Joseph G. Cummings
F. Evans Harvill
John R. Rucker
APPROVED AND ADOPTED BY THE BOARD