87 N.J.L.J. 369
June 11. 1964
Partner - Witness to Contested Will
Inquiry is made as to the propriety of one member of a law
firm acting as trial counsel for the executor of a decedent's
estate where the competency of the decedent to make his will,
witnessed by another member of the firm, is challenged and it will
be necessary for the member of the firm acting as a witness to the
will to be called as a witness to support the competency of the decedent to make his will.
Canons of Professional Ethics, 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 American Bar Association Committee has held, modifying its former opinions, and following the ruling of the Philadelphia Bar Association Committee on Professional Guidance, that this canon does not preclude a lawyer, with full disclosure to opposing counsel and to the court, from being a witness on behalf of a client represented by the lawyer's partner, where his testimony relates to matters occurring in the course of his professional duties and is in support of the client's position, and where the lawyer's long and intimate familiarity with the details of the matter in litigation makes it important to the client to have the benefit both of the lawyer's testimony and of the professional services of his firm. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 220 (1941); Philadelphia Bar Association, Committee on Professional Guidance, Opinion 8 (1941); Drinker, Legal Ethics 158 (1953). With that conclusion, we agree.
We do not construe the words "other counsel" in Canon 19 as necessarily excluding a partner of the lawyer who must become a witness. Each case must depend on its own facts. Like many other problems arising in the course of professional employment, this involves questions of good taste as well as of ethics, its solution depending largely on the surrounding circumstances, in the light of which each case must be resolved, within the limits above outlined, by the lawyer, with, of course, full disclosure to opposing counsel and to the tribunal.