On November 1, 2018, California enacted new rules of professional conduct for lawyers. The new rules make many changes, one of which is Rule 3.7. The prior rule (Rule 5-210) pertained only to a lawyer as a witness at trial in jury trial proceedings. The new rule does not make that distinction, and applies to both jury trial and bench or judge trial proceedings. As probate court trials are bench or judge trials, and with limited exceptions, jury trials are not available in probate court proceedings, the new rule (being applicable to both jury and non-jury proceedings) can be important in probate court proceedings in appropriate circumstances. In two of my probate court cases new Rule 3.7 already has been a possible issue – in one case the rule is not applicable, but in the other case the rule definitely is applicable. Every probate court case is different – whether or not Rule 3.7 applies will need to be evaluated on a case by case basis.
New Rule of Professional Conduct 3.7 states as follows:
Rule 3.7 Lawyer as Witness
(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:
(1) the lawyer’s testimony relates to an uncontested issue or matter;
(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or
(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.
You should also read the discussions, and the cited case, provided under Rule 3.7 to understand and to get a feel for whether the rule applies in your case, and, if so, how to approach the possible client written consent option under the facts of your case, and possible court discretionary authority to disqualify an attorney even if written consent is obtained (see, e.g., Lyle v. Superior Court).
It is not uncommon for the estate planning attorney or firm to also be involved in the post-death administration which also can be or become a probate court proceeding. Thus, if the proceeding is a probate court proceeding, pursuant to new Rule 3.7, you must first evaluate whether the lawyer is acting “as an advocate” representative, and whether the lawyer “is likely to be a witness.” Both of those questions need to be carefully evaluated on a case by case basis.
If the answer to both of those questions is “yes” (i.e., the lawyer is serving or proposes to serve as an advocate representative, and is likely to be a witness), next carefully evaluate on a case by case basis: (1) does the lawyer’s testimony relate to a contested matter or to an uncontested matter; (2) does the lawyer’s testimony relate or not relate to the nature and value of legal services rendered in the case; or (3) has or will the client provide written consent. And, if client written consent is an option, you will also need to consider the wording of the (informed) written consent.
Will the effect of new Rule 3.7 be earthshaking? The rule needs to be considered on a case by case basis. The new rule still might not apply in most probate court cases. However, in probate court cases in which the lawyer is likely to be a witness (for example, such as in will and trust contests, and possibly in other cases in which there is an objection or opposition) Rule 3.7 might apply or should at least be considered as possibly applying – as a result, in those cases, on a case by case basis, the lawyer either will or will not be disqualified, or, in some cases, the lawyer might voluntarily decide to not represent a party simply so as to avoid the possible disqualification situation.
In appropriate cases you should also consider Rule 3.7(b) which states “A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm* is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.”
I am sure that I will be writing subsequent posts about Rule 3.7 as probate courts rule on its applicability or possible applicability, on a case by case basis.
Best to you, David Tate, Esq. (California)