Bar Exam prep question - see description

Question

An attorney who had represented a client for many years pre-pared the client’s will and acted as one of the two subscribing witnesses to its execution. The will gave 10% of the client’s estate to the client’s housekeeper, 10% to the client’s son and sole heir, and the residue to charity. Upon the client’s death one year later, the executor named in the will asked the attorney to represent him in probating the will and admin-istering the estate. At that time, the executor informed the attorney that the son had notified him that he would contest the probate of the will on the grounds that the client lacked the required mental capacity at the time the will was executed. The attorney believes that the client was fully competent at all times and will so testify, if called as a witness. The other subscribing witness to the client’s will predeceased the client. Is it proper for the attorney to represent the executor in the probate of the will?

Answer 1

There are a multitude of issues here. First and foremost, this question is testing professional responsibility.

If this were in a General Bar Exam (not a state specific portion) we would be referencing the Professional Rules of Conduct.

I would love to explore this issue in depth with you; however, for the purposes of this answer I will point out that it is not proper for an attorney to represent a party in litigation that the attorney is likely to be a material witness in. Here, the question states the attorney believes that the client was fully competent at all times and will so testify, if called as a witness. Additionally, the attorney was a witness to the will.

As such, the issue to be discussed would be the attorney's likelihood of becoming a material witness in the case as a conflict to representing a party in probate litigation.