New California Rule of Professional Conduct 3.7 – Lawyer as Witness – As Applied to Estate Planning and Trust and Estate Administration Lawyers

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 (lawyer as witness). The prior rule (Rule 5-210) applied only to a lawyer as a witness at trial in jury trial proceedings. New Rule 3.7 does not make that distinction – new Rule 3.7 applies to both jury trial and bench or judge trial proceedings.

As probate court proceedings are bench or judge proceedings, for which, with limited exceptions, jury trials usually are not available, it is now important to consider the possible applicability of new Rule 3.7 in all probate court proceedings including those proceedings which have not yet reached the trial stage. New Rule 3.7 has already has been a potential issue in some of my cases – in some probate court proceedings Rule 3.7 will or may apply, whereas in other proceedings it will not.

Every probate court proceeding and case is different – whether or not Rule 3.7 applies will need to be evaluated on a proceeding by proceeding and case by case basis and might need to be considered at various different times in the course of a proceeding or case as the situation could be fluid and changing.

Note that I am differentiating between a probate court proceeding and a probate court case although the two might be considered the same – many probate court proceedings are never formally scheduled for trial or evidentiary hearing – nevertheless, even when a trial or evidentiary hearing has not been formally scheduled, a reading of Rule 3.7 suggests that the possible applicability of the Rule should still be considered to determine whether the lawyer is or might become an advocate at a trial or evidentiary hearing and whether the lawyer is or might likely be a witness.

You will note that Rule 3.7 also can bring into consideration the possibility of conflict waiver, which raises a host of other issues to consider including, for example, the possible timing of a discussion about that possibility (such as possible discussion in an engagement letter), whether an actual conflict waiver should be considered and the timing of such, and, if a conflict waiver is required or desired, whether such a waiver is actually allowable under the circumstances of the proceeding or case, and, equally important, whether such a waiver is the best or most prudent course of action compared to other possible options such as disengagement.

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 comments, and the cited case, provided under Rule 3.7 to understand and to get a feel for whether the Rule 3.7 applies in your proceeding or case, and, if so, how to approach the possible client written consent option under the facts of your proceeding or case, and possible other options, including disengagement and 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 can 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 or might be or become acting as “an advocate” representative, and whether the lawyer is or might become “likely to be a witness.” These questions should be carefully evaluated on a proceeding by proceeding or case by case basis. Depending on your evaluation of these issues, next carefully evaluate on a proceeding by proceeding or case by case basis: (1) does the lawyer’s testimony relate to a contested or possibly contested matter or to an uncontested matter; (2) does the lawyer’s testimony relate (solely relate?) to the nature and value of legal services rendered in the case; and (3) has or will or should the client provide written consent (see also the discussion above). 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? Rule 3.7 needs to be considered on a proceeding by proceeding and case by case basis. New Rule 3.7 already is or could be applicable in many probate court proceedings and cases. The overall impact will need to be determined over time, and on a county by county and probate judge by probate judge basis. However, in probate court proceedings or cases in which the lawyer is likely or could become likely to be a witness (for example, such as in will and trust contests or possible contests, and possibly in other proceedings or cases in which there is an objection or opposition, or possibly a likely objection or opposition) Rule 3.7 might apply or should at least be considered as possibly applying including the options available.

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 will be writing subsequent posts on these issues as they can be important to estate planning and administration attorneys, and in proceedings and cases, and these are and will continue to be developing areas. Please also note that I will also be discussing other rules, cases, decisions, and issues, including possible client duties, that can or might apply in a particular situation, including, for example, Rules 1.6, 1.7, 1.9, and 1.10, which pertain to client confidential information, possible conflicts between current clients, possible conflicts between a former client and a current client, and new Rule 1.10 pursuant to which conflicts can be imputed between different attorneys in the same law firm.

Best to you, David Tate, Esq. (and inactive California CPA)

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

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