The Florida Bar

July 9, 1964

An attorney need not withdraw from representation of a client simply because he expects to be called to testify by his adversary.

Canon: 19

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar states that he acts as attorney for a bank in its capacity as executor of a decedent's estate. He prepared the will in question, but did not act as witness. A will contest has now developed wherein the contestant seeks to revoke the will on the ground that the testator was mentally incompetent. It has been suggested that the lawyer should withdraw from representation of the estate because he drafted the will and may possibly be called to testify in the litigation by the contestant.

It is the opinion of this Committee that he need not withdraw under the circumstances unless he desires to do so. Canon 19 states that a lawyer should avoid testifying in court on behalf of his client. Drinker, Legal Ethics, observes at page 159, however, that the attorney need not withdraw if he expects to be called by his adversary. One member of the Committee points out that if an attorney is required to withdraw under the circumstances described, then the contestant in effect is placed in the position of being able to disqualify the executor's attorney when such action might well defeat the desires of the testator.

One member of the Committee believes that the lawyer should withdraw from the case in the event that it appears he will be called upon to present important testimony on a material issue. The Committeeman holds that view despite the comment of Drinker, above mentioned. This Committeeman feels, however, that if he anticipates being called merely on technical matters, then there is no ethical demand for the resignation.

[Revised: 08-24-2011]