ETH 69-2.

• Court: Nebraska

Nebraska Ethics Opinion 1969. ETH 69-2. 1969OPINION NO. 69-2Ethics Opinions -- NSBAALTHOUGH IT IS PROPER FOR A LAWYER WHEN REQUESTED TO DO SO BY THE TESTATOR, TO WITNESS HIS WILL OR, AFTER HIS DEATH, TO TESTIFY AS A SUBSCRIBING WITNESS THERETO, IT IS ETHICALLY IMPROPER FOR HIM, HOWEVER, TO REPRESENT, IN LITIGATION, A PARTY EITHER AS A PROPONENT OF SUCH WILL OR IN A CONTEST INVOLVING THIS OR ANY OTHER WILL PURPORTEDLY EXECUTED BY THE IDENTICAL TESTATOR.CANONS INTERPRETED (Professional Ethics) Canon 19: 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. A lawyer, who witnessed a will and codicil for a testatrix, seeks an opinion from the Advisory Committee of the Nebraska State Bar Association as to the ethical propriety of his representing the executrix and legatee named therein, who has filed objections to the probate of a later will. The Advisory Committee is of the opinion that it would be ethically improper for him to do so. Canon 19 provides that "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". Informal Opinion No. 738 of the Standing Committee on Professional Ethics of the American Bar Association, issued on December 27, 1963, states, in effect, that an attorney may, with propriety, act as an attesting witness to the execution of a will he has drawn, when requested to do so by the client. Our Court has held that an attorney who has drafted a will, and was present at the time of its execution, is competent to testify as to factual matters concerning its execution, such matters not being privileged communications. In re Coons' Estate, 154 Neb. 690, 48 N.W. (2nd) 778. Therefore, this attorney properly witnessed the will which he had prepared and further, he is a competent witness to testify regarding its execution and the circumstances attendant thereto. In fact, he would become a necessary witness for this...