The 1404 exam is often described by legal commentators as a classic fishing expedition. There is no doubt that the law affords a lot of latitude in favor of the examining party to allow a thorough and probing examination of the drafting attorney. A drafting attorney facing such an examination under oath in the courtroom and ordinarily, with the Surrogate Judge presiding should take the examination seriously.
Consider Retaining Counsel
The first consideration should be whether or not to engage estate litigation counsel. Most attorneys who are examined are excellent estate planners, who do wonderful work and see to it that the decedent’s intentions and instructions are carried out by a well drafted instrument. They are often highly skilled and knowledgeable about tax consequences, asset distribution, beneficiary rights and obligations of fiduciaries relating to planning an estate. However, ordinarily they do not possess litigation skills or experience. Many drafting attorneys work hard to ward off and avoid litigation, but in some instances it is simply unavoidable or known to be associated with some persons involved in the estate plan.
Drafting attorneys caught up in estate litigation must consider Rule 1.1 requiring competency. The rule prohibits a lawyer from handling a matter which he knows he is not competent to handle. Further, the rule requires that lawyer to become associated with a lawyer who is competent to handle the matter. The rules are clear and leave no ambiguity. Estate planning and drafting attorneys are ordinarily highly competent to plan and draft estate instruments but not experienced or familiar with how to litigate the estate.
Format of Testimony
In considering whether to engage litigation counsel, the drafting attorney must immediately consider how to present the testimony and that of the subscribing witnesses in the absence of counsel handling the litigation. For example, while the law in New York allows the drafter to be sworn on the stand and to testify in a narrative fashion, often even experienced counsel will unintentionally miss required elements necessary for proving the will’s validity or the elements required to prove capacity in court.
The delivery of testimony in a narrative format can be effective in a simple case, but where the attorney client relationship was more extensive or multiple documents or wills are involved the narrative approach generally is not effective and can become a messy trap for the unwary.
Often the attorney who tries to do it all simply cannot handle the sheer volume of all the detailed required tasks associated with both testifying as a witness and handling the litigation. For instance, that attorney would be required to examine the subscribing witness, redirect examine that witness, testify in a narrative, be cross examined and then keep straight what points from the cross examination to cover on a redirect narrative. It is very difficult for any attorney to function as both an advocate and a witness in a client’s case.
The cost of litigation is an expense of the estate. It is not an expense of the attorney draftsperson. Experienced litigation attorneys will often readily agree to handle the litigation portion of the estate only. This benefits the client greatly. It allows the attorney who drafted the instrument to handle administration of the estate. This can keep costs down for the estate and permit an efficiency in the administration. It is often consistent with the decedent’s intention that his/her attorney handle the decedent’s estate.
Fending off the Attacks
In many cases the hearing and the potential objections can develop into an aggressive attack on the attorney’s written work product, professional skills, knowledge and efforts as a draftsperson responsible for proper execution of the will.
It is difficult for many attorneys to confront these intense challenges and attempt to withstand an attack as both a witness and advocate. In many of those cases the testimony, particularly the cross examination, can become very hostile. Some attorneys visibly react by coming across as a defensive or quarrelsome witness or worse, as an obstructionist hiding facts.
Some attorneys that represent objectants routinely move to disqualify the attorney drafter from the case, by asserting that the advocate witness rule (Rule 3.7) prohibits counsel from handling the testimony while remaining a witness in the case. Defending against a motion of this nature can chill the attorney client relationship between the drafting attorney and the will’s proponent/fiduciary.