The Oklahoma Bar Journal December 2022

As noted trusts and estates professor William M. McGovern Jr. opined, lawyers should not have to “decide, at their peril, whether a client is … under undue influence. Nonetheless, a lawyer who has reason to suspect this should not ignore the problem.” 70

The importance of the draft ing attorney’s testimony in undue influence cases can lead to a serious ethical problem. Under Rule 3.7, attorneys are prohibited from serving as an advocate at a trial in which they are likely to be a nec essary witness. 62 It is common for a decedent’s family, when looking for advice concerning probate, to engage the attorney who prepared their loved one’s estate plan. That is fine for ordinary administrations. In contested proceedings, however, combining the two roles, advocate and witness, can “prejudice the tri bunal and the opposing party and can also involve a conflict of interest between the lawyer and client.” 63 Rule 3.7 contains a few excep tions to this general bar. A lawyer may accept representation if their testimony “relates to an uncon tested issue” or “relates to the nature and value of legal services rendered in the case.” 64 Serving as both counsel and witness in these situations does not risk the same prejudice since there is “less dependence on the adver sary process to test the credibility of the testimony.” 65 The third and

final caveat is that a lawyer whose testimony will be needed may act as advocate if “disqualification … would work substantial hardship on the client.” 66 This last excep tion is unlikely to apply to most probates. A diligent attorney should be able to determine early on whether someone might contest the proceedings. Even if the challenge is a surprise, a will contest usually occurs at the beginning of the pro bate process when another attorney can easily step in. Under such cir cumstances, the client does not suf fer “substantial hardship” by having to find replacement counsel. 67 As long as the case falls within one of the permissible exceptions, an attorney may serve as counsel in a probate matter despite the need for their testimony. But the issues being contested can easily change as a case evolves, poten tially undermining the facts used to justify your representation. If there is any chance the will might be challenged, the safer course of action would be to refer the case to another attorney. As the OBA Legal Ethics Committee (predecessor to the Legal Ethics

probate process. Attorneys regu larly attest to the wills they draft, making them necessary witnesses in will contests, 59 and can offer key testimony in proving the terms of a lost will. 60 But perhaps nowhere is the estate planner’s role more crucial than when an estate plan is challenged on the grounds of undue influence. Because influencers frequently work to isolate their victims from family and friends, evidence of the statements and desires of the testatrix during the will-making process often come from only two sources: the lawyer and the influencer. The reliability of the influencer is suspect. It is in their best interest to testify in a way that minimizes the role of their influence. That leaves the drafter’s testimony. An attorney who “took careful steps to ensure that the drafted document reflected only [the testatrix’s] desires” can save a will. 61 On the other hand, an attorney who failed to advise the testatrix “privately … impartially and confidentially” can be the final nail in the coffin, leading to a find ing of undue influence.

DECEMBER 2022 | 21

THE OKLAHOMA BAR JOURNAL