The Florida Bar

November 7, 1966

An attorney who represented a testator in the drafting of two earlier wills, both of which named the same executor, and who now represents the executor in probate proceedings, may permit his partner to file pleadings on behalf of the executor in connection with a will contest and to represent such interests as the executor may have as a disinterested party, even though the attorney may be called upon to testify as to other than formal matters at the trial of the will contest.

Canon: 19
Opinions: 64-39, ABA 220

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar presents for our consideration the continually recurring question of the responsibility of a lawyer under Canon 19.

Canon 19 provides as follows:

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.

The inquiring attorney represented a testator in the drafting of a will in 1960, and the drafting of a subsequent will in 1963, having the effect of revoking the earlier will. The same executor was named in both wills, and the inquirer has now been retained to represent this executor. The 1963 will omitted certain legatees who had been named in the earlier will. Predictably a will contest has ensued.

The inquiring attorney was not an attesting witness, but is of the belief that during the trial of the will contest he may be called upon to testify, and that this testimony might extend beyond formal matters. It is his belief that he will be requested by the executor to act regardless of which will is ultimately admitted to probate.

We are asked whether it would be permissible for a partner of the inquirer to file formal pleadings on behalf of the executor, and to represent such interests as it may have in the proceedings. It is clear that the executor is essentially disinterested between the competing legatees. Moreover, it is clear that the size of the estate (which might in the future be utilized by the county judge as one standard to be utilized in computation of a fee for the attorneys for the executor) will not be significantly affected by this will contest.

This Committee had substantially the same problem before it in Opinion 64-39, and we there held that the attorney for the executor need not withdraw from the representation of the estate. Indeed, it was pointed out that if Canon 19 was interpreted to require such withdrawal, a contestant to a will would be put in a position of being able to disqualify the attorney for the executor, and thus indirectly defeat the desires of the testator.

In this instance, the inquirer actually proposed to leave the handling of the representation of the executor, at least during the pendency of the will contest, to one of his partners. The American Bar Association Committee on Professional Ethics in its Opinion 220 has made it clear that Canon 19 should not be interpreted to automatically disqualify not only the lawyer, but his partners from the conducting of such a proceeding. We need not speculate as to the extent to which we would adhere to Opinion 220, because, as noted, in our Opinion 64-39 we have previously approved counsel continuing to represent the executor, with the knowledge that he might be called upon to testify by a contestant, so long as the executor was otherwise disinterested. Hence, the present course of the inquirer in utilizing his partner, which we regard as a wise and appropriate precaution, only reinforces our opinion that his proposed course of conduct is proper and that neither he nor his firm need withdraw from the handling of the estate for the executor.

[Revised: 08-24-2011]