FLORIDA BAR ETHICS OPINION
November 7, 1966
Advisory ethics opinions are not binding.
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
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
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.