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Ethics Opinion

Opinion 2024-1

March 2024

Summary: When a Client asks a Lawyer to draft an estate plan that includes a testamentary gift to a non-profit organization for which the Lawyer serves as an officer or board member, the Lawyer’s relationship with the non-profit creates a conflict of interest necessitating the Client’s informed consent, confirmed in writing, before the Lawyer may proceed.  In obtaining the Client’s informed consent, the Lawyer should advise the Client of the enhanced risk that an undue influence claim based on the Lawyer’s relationship with the non-profit may be asserted.

Facts An estate planning Lawyer is the President of a small non-profit social service agency with limited financial means.  The non-profit is not a client of the Lawyer or of the Lawyer’s firm.  One of the Lawyer’s clients asked the Lawyer to draft an estate planning document that includes a substantial testamentary gift to the non-profit.

Discussion: Rule 1.7 of the Massachusetts Rules of Professional Conduct provides as follows:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a

lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and

diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against

another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The Lawyer’s role as President of a non-profit organization creates a conflict of interest when working with a Client who wishes to make or alter testamentary gifts to the non-profit.  As President, the Lawyer has a personal interest in the non-profit’s success, which is at least partially dependent on charitable gifts to the non-profit.   Since the non-profit has limited means and the proposed gift is substantial, there is a significant risk that the Lawyer’s personal interest will influence the Lawyer’s advice regarding the Client’s estate plan. See Mass.R.Prof.C. 1.7(a)(2) and Rule 1.7, comment 8.

In Oregon Formal Opinion 2005-116, a lawyer who represented a charitable organization and sat on its board was asked to draft a will by a client leaving a bequest to that organization.  The Oregon Bar concluded that, while “there is a significant risk that Lawyer’s representation of Donor would materially limited by Lawyer’s obligations to Charity, the representation is permissible with informed consent of all clients, confirmed in writing.”  We agree.

In this case, the Lawyer has an attorney-client relationship with the Client who intends to make a gift, but not with the non-profit.  Accordingly, before going forward with drafting the estate planning document, the Lawyer should fully inform the Client of the potential conflict of interest and obtain the Client’s informed consent confirmed in writing as required by Rule 1.7(b)(4).  See Rule 1.0(g) for a definition of informed consent.

Even though the Committee believes that the conflict is consentable, the Lawyer should proceed cautiously.  The preparation of an instrument benefitting the non-profit by one of its officers or board members could create the appearance of undue influence, which is one of the grounds on which a will may be contested by a decedent’s heirs or the devisees under a prior will.  In In Re Estate of Edel, 700 N.Y.S.2d 664 (1999), the partner of a lawyer who served the board of a hospital drafted a will leaving a substantial amount to the hospital, which their law firm also represented.  The decedent’s family contested the will alleging that the gift was the product of undue influence.  The family further argued that a presumption of undue influence existed because of the absence of a written conflict of interest waiver signed by the decedent.  Although the court rejected the claim that there was a presumption of undue influence, it nevertheless allowed the case to go to trial on the undue influence issue.

Accordingly, in seeking the Client’s informed consent, the Lawyer should point out to the Client that the Client’s testamentary wishes would be less susceptible to a challenge if the Client’s will were prepared by an independent lawyer.

The Committee wishes to acknowledge the assistance of its former Chair, Professor Andrew Kaufman, who participated in the preparation of this opinion prior to his retirement.

This advice is that of a committee without governmental authority.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on March 21, 2024.