Editor's Note: Refer to Rule 3.7.
DUAL ROLES- Acting As Lawyer and Witness.
The following question has been proposed to the Committee for its consideration:
Attorney "A" has been employed to admit to probate and record a will that was executed many years ago. Both witnesses to the will are long since deceased. The attorney is unable to find anyone who can identify signatures of the Testator or the witnesses, except himself. He is unaware of any contest to be made to the will. May the attorney act as a witness to prove the genuineness of these signatures by his own testimony?
Canon 5 recites: "A lawyer should exercise independent professional judgment on behalf of a client." There are occasions when a lawyer must decide whether he will be a witness or an advocate. When he is a potential witness, he may also act as an advocate if it is unlikely he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. This is further supported by DR 5-101(B) (1) where an attorney is allowed to undertake employment if his testimony will relate solely to an uncontested matter.
In view of the fact that Attorney "A" does not expect a contest as to the genuineness of the signatures of the Testator and the witnesses, it is the opinion of Committee that he should be allowed to prove the genuineness of the signatures on the will, and his involvement in the probate of the will would not be questionable so long as the subject of his testimony is on the uncontested matters herein discussed.