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                                             99 N.J.L.J. 715
                                             August 12, 1976


Appointed by the New Jersey Supreme Court


Attorney's Fee as Will Witness

    An inquiry has been made by a member of the Judiciary regarding the propriety of an attorney charging a "sizable fee" for appearing before a surrogate's probate clerk to testify as a witness to a will. Reference is made to the fact that these are cases in which the lawyer or an associate drafted the will and acted as a witness to it, but in which the executor has decided to employ counsel other than the scrivener. The inquirer asks for an expression of the Committee's view as to the propriety of such a fee. The inquirer further states that in his opinion the practice is deplorable and, secondly, indicates that he is of the opinion that "a professional fee is not involved since the lawyer is acting simply as a fact witness," and suggests that when a lawyer acts as a witness to a will the good manners and the good name of the profession required him to be readily available to testify without charge as a witness to the will.
    We agree with the inquirer's statement that "a professional fee is not involved since the lawyer is acting simply as a fact witness." No attorney is entitled to charge a legal fee for appearing before a surrogate or probate clerk to give evidence.     The factual situation referred to in this inquiry does not come within the purview of DR 2-106. This Committee cannot render an opinion as to an amount, if any, which would constitute a reasonable allowance for attendance, since it is beyond our jurisdiction to do so.

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