Ethics Opinion

Summary: The Disciplinary Rules do not forbid per se an attorney from drafting a will in which the attorney is named a beneficiary for his parent, at his parent's request, provided that the attorney makes full disclosure of the possible effect of the disposition on his independent professional judgment.

Facts: An attorney has been asked to prepare a will for his mother that bequeaths her property to her children equally. He asks whether he may perform the service without violating the Disciplinary Rules.

Discussion: The apparent simplicity and equality of the proposed distribution conceal a potential ethical issue. Conventional as the mother's intentions may appear, a choice is nonetheless being made. For example her children may have widely disparate needs which counsel should call to her attention; and he may find it appropriate to make recommendations as to what will happen to a share of a child who predeceases the mother with or without issue, what is to be done with the shares of minors, who is to be executor, guardian, etc.
DR 5-101(A) provides:
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
The Ethical Considerations, which were "not adopted as a rule of this court" by the Supreme judicial Court but which were declared to "form a body of principles upon which the Canons of Ethics and Disciplinary Rules ... are to be interpreted," add some specificity to DR 5-101(A).
EC 5-2 states that "A lawyer should not accept proffered employment if his personal interests ... will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client." EC 5-5 applies this principle to the receipt of a gift from a client.
A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or over-reached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client.
It is apparent that the thrust of these ethical considerations is somewhat different from that of the disciplinary rule, which focuses on disclosure and consent. The ethical considerations suggest that there are additional safeguards that a lawyer should ordinarily take in this situation. But these ethical considerations were not adopted as rules and serve only as guiding principles to interpretation of the rules. To the extent that there may seem to be conflict between the Disciplinary Rules and the Ethical Considerations or that the Ethical Considerations impose different conditions on a lawyer's actions from those imposed by the Disciplinary Rules, the Disciplinary Rules state the mandatory requirements and are controlling.
In responding to the present inquiry therefore we believe that there is no ethical prohibition per se against a lawyer's preparing a will for a parent, at the parent's request, provided that the lawyer makes disclosure of the potential effect of his interest on his independent professional judgment. Of course there may be situations where the effect on the lawyer's interest would be such that the lawyer would not be able to render competent advice and in such circumstances DR 6-101(A) would forbid the representation. In addition, such a transaction as the one contemplated will ordinarily be subject to careful judicial scrutiny upon a charge of undue influence, see Wood v. McDonald, 332 Mass. 220 (1955) and cases cited therein, and courts sometimes do look at the considerations mentioned in the Ethical Considerations in addition to, or perhaps as bearing upon, the adequacy of disclosure and consent. But issues of disclosure, consent and undue influence turn on the facts of particular situations and it will often be possible for a lawyer to perform the requested service for a parent without violating the rules. We note that the current draft of the Kutak Commission's proposed Model Rules of Professional Conduct would permit the lawyer to draw a will when he is a donee so long as the client is a relative. See Rule 1.8(c). Presumably disclosure, called "consultation" in the proposed Model Rules, is also required. See Rule 1.7(b). See also ABA Informal Opinion 1145 (1970) detailing the circumstances under which it is permissible for an attorney-beneficiary to draw a will for a spouse.