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Trust and estates lawyers often find themselves advising clients in anticipation of future litigation. Be it in the context of a will that disinherits family members or a trustee receiving a letter from counsel representing disgruntled trust beneficiaries, one issue that needs to be thought about at the very beginning is: will separate trial counsel be needed?

Case Study

Eccles v. Nelson, 2006 WL 192633 (Fla. 5th DCA Jan 27, 2006)

This 5th DCA opinion is a prime example of how these issues can come back to bite you if you’re not anticipating them. Here opposing parties sought to probate conflicting wills, one signed in 2001 and the other in 2004. The validity of the 2004 will was challenged on grounds of undue influence, the decedent’s lack of requisite mental capacity, and the genuiness of the decedent’s signature. The attorney who drafted the 2004 will and also acted as a witness when the decedent purportedly signed the 2004 will was engaged by the party attempting to probate the 2004 will to be her trial counsel.

On a motion to disqualify, Seminole County Judge Gene R. Stephenson entered an order disqualifying the 2004-will-drafting attorney. It is important to note that the trial court did not disqualify him from representing his client either pre-trial or post-trial. The trial court’s ruling was apparently based on Florida Bar Code of Professional Responsibility Rule 4-3.7. The following excerpts from the official “Comment” to Rule 4-3.7 sum up the prejudice/conflict-of-interest concerns underlying the rule:

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

On appeal the 5th DCA upheld the trial court’s ruling on the following two grounds. First, Rule 4-3.7 supports disqualification. And second, disqualification of the 2004-will-drafting attorney did not violate his client’s constitutional First Amendment right to association because Florida courts have a substantial and legitimate governmental interest in protecting the integrity of the litigation process. So saith the 5th DCA:

The trial court determined that Mr. Salter’s knowledge and involvement with the 2004 will would concern crucial issues to be determined at trial, and entered an order disqualifying him from representation of the petitioner at trial. The court did not disqualify him from representing the petitioner either pre-trial or post-trial, however. We find no departure from the essential requirements of law, and deny the petition for certiorari because Florida Bar Code of Professional Responsibility Rule 4-3.7 supports the disqualification.

Rule 4-3.7 reads in pertinent part, as follows:

(a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client except where:

(1) the testimony relates to an uncontested issue;

(2) 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;

(3) the testimony relates to the nature and value of legal services rendered in the case; or

(4) disqualification of the lawyer would work substantial hardship on the client.

In the present case the issues of mental incapacity, undue influence and genuineness of the signature are obviously contested matters of substance, and Mr. Salter’s testimony is well beyond a mere formality. The trial court’s application of the rule to these facts appears to be within its authority, and is supported by Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). There, as here, the disqualification of the attorney for a personal representative by the trial court was approved where the attorney prepared the will and supervised its execution, and where the issues before the trial court concerned the testamentary capacity of the decedent and undue influence.

The petitioner next argues that Rule 4-3.7 is unconstitutional because it violates the First Amendment right to association. We do not agree.

Lesson Learned?

The last thing a client wants to hear is that large sums of money have been paid to an attorney in preparation for a trial that he or she is now disqualified from. It may make economic sense to engage the drafting attorney as pre-trial or post-trial counsel and hire a second lawyer to act as trial counsel. The point is that clients and their attorneys need to anticipate this issue and plan accordingly – not have it thrust upon them on the eve of trial.