81-F-10 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.


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