Can a lawyer draft a will for someone referred by an existing client who stands to inherit under that will?

Plain-English summary

The opinion considers a lawyer who provides estate-planning services to a niece (a current client) and is asked by her to draft a will for her widowed uncle, whom the lawyer has not met, where the niece is a potential beneficiary and offers to pay any part of the fee the uncle does not. The committee's premise is that "the Model Rules do not prohibit multiple representation of family legal interests as long as the lawyer's independent professional judgment is maintained, the lawyer complies with the rules on client confidences, and any conflicts of interest are resolved under the applicable rules."

The analysis turns on who pays. If the niece pays or assures the uncle's fee, Rule 1.8(f) applies: the lawyer must not let her interfere with his independent judgment for the uncle and must obtain the uncle's informed consent. If the niece merely recommends the lawyer without paying, "Rule 1.8(f) does not apply," and instead Rule 5.4(c) simply requires that the lawyer not permit her to direct his professional judgment. The committee suggests the lawyer may prefer that the uncle pay if able, which avoids the need for the uncle's 1.8(f) consent and removes a factor that could support a later undue-influence claim.

The committee then resolves the conflict and confidentiality questions. Because the lawyer already represents the niece in estate planning, he must consider Rule 1.7, but on these facts there is no significant risk that either representation will be materially limited by the other, so "Rule 1.7 does not apply to the simultaneous representation of the niece and her uncle." Under Rules 1.6(a) and 1.8(b), the lawyer must not reveal or use the niece's information to her disadvantage without her informed consent, so he must obtain clear guidance from her about what may be shared with the uncle, and under Rule 1.4(b) should ensure the uncle is aware of the concurrent representation so he can make informed decisions, particularly where a will contest could later arise.

In practice

Under this opinion, and under the Model Rules as they stood at the time, the controlling questions are independence and disclosure. The opinion treats the referral itself as permissible so long as the recommending client does not direct the lawyer's judgment (Rule 5.4(c)), and treats third-party payment as the trigger for the testator's informed consent under Rule 1.8(f). It frames the concurrent representation as not materially limiting on these facts, and routes the beneficiary-client's confidential information through her informed consent before any use for the testator.

Common questions

Q: A client asked me to draft a will for her relative, and she'd be a beneficiary. Can I do it?

A: Yes, with conditions. The opinion permits it "provided Rule 5.4(c) is satisfied and any informed consents required by other rules are obtained."

Q: Does it matter whether the referring client pays the testator's fee?

A: Yes. If she pays, Rule 1.8(f) applies and the testator's informed consent is required. The opinion notes that "if... the niece does not undertake to pay the lawyer's fee, but merely recommends... Rule 1.8(f) does not apply."

Q: Isn't representing both the beneficiary and the testator a conflict?

A: Not on these facts. The opinion concludes "Rule 1.7 does not apply to the simultaneous representation," because there is no significant risk either representation will be materially limited by the other.

Q: Can I use what I know from the beneficiary-client to help the testator?

A: Only with her guidance. The opinion says the lawyer "must obtain clear guidance from her as to the extent to which he may use or reveal that person's protected information in representing the testator."

Background and rules framework

The opinion interprets Model Rule 5.4(c) (no direction of professional judgment by a recommender or payor), Rule 1.8(f) (third-party compensation and the client's informed consent), Rule 1.7 (concurrent conflicts), Rule 1.6(a) and 1.8(b) (confidentiality and use of client information), Rule 1.4(a) and (b) (communication), Rule 2.1 (independent judgment and candid advice), and Rule 1.0(e) (informed consent). It is based on the Model Rules as amended in August 2002.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 5.4(c) (independence from recommender)
• ABA Model Rule 1.8(f) (third-party payment; testator's informed consent)
• ABA Model Rule 1.7 (concurrent conflicts; held not to apply)
• ABA Model Rules 1.6(a), 1.8(b) (confidentiality; use of client information)
• ABA Model Rules 1.4(a)(1), 1.4(b), 2.1, 1.0(e) (communication; independent judgment; informed consent)

Cases:

• Haynes v. First Nat'l State Bank of N.J., 432 A.2d 890 (N.J. 1981)
• In re Estate of Koch, 849 P.2d 977 (Kan. Ct. App. 1993)

Other opinions cited:

• ACTEC Commentaries on the Model Rules of Professional Conduct (3d ed. 1999)

See also

• ABA Formal Op. 05-434: Disinheriting a Beneficiary Who Is the Lawyer's Client
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• ABA Formal Op. 05-435: Suing the Insured of a Client Insurer

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 02-428.pdf