Can a lawyer draft a will disinheriting someone the lawyer represents on other, unrelated matters?

Plain-English summary

The opinion addresses whether a lawyer faces a concurrent conflict under Rule 1.7 when a testator (or a grantor amending a revocable trust) retains the lawyer to disinherit or reduce the interest of a beneficiary whom the lawyer separately represents on unrelated matters. The committee analyzes both prongs of Rule 1.7(a): direct adversity and material limitation.

On direct adversity, the committee concludes there ordinarily is none. Direct adverseness "requires a conflict as to the legal rights and duties of the clients, not merely conflicting economic interests," and a potential beneficiary "has no legal right to that bequest but has, instead, merely an expectancy." Because a testator is generally free to dispose of the estate as the testator chooses, no conflict of legal rights arises, except where the testator is bound by a legal obligation to the beneficiary, such as a contract to make a will or a forced-heirship statute (the opinion cites Louisiana's limits on disinheriting a young or disabled child). In those situations the clients are directly adverse and the lawyer cannot prepare an instrument derogating the other client's legal rights.

On material limitation, the committee finds that drafting a disinheriting instrument "ordinarily is a simple, straightforward, almost ministerial task," so the lawyer's duties to the other client usually pose no significant risk of limiting the representation. The risk rises, however, when the testator asks the lawyer to advise on "whether, rather than how, to disinherit," because that shifts the engagement from ministerial to discretionary and creates a heightened risk that the lawyer might, even unconsciously, steer the testator toward the other client's interest. The opinion also notes that a lawyer who finds the assignment repugnant or doubts her ability to exercise independent judgment may decline or withdraw under Rule 1.16, and that family estate-planning engagements may create responsibilities to other family-member clients that the lawyer must weigh.

In practice

Under this opinion, and under the Model Rules as they stood at the time, the dividing line is whether the testator owes the beneficiary a legal obligation and whether the task stays ministerial. Drafting an instrument that carries out the testator's settled intent is ordinarily permissible even though it disinherits another client, because the other client has only an expectancy. The opinion treats advice on "whether" to disinherit, forced-heirship or contractual duties, and prior family-planning commitments as the circumstances that can turn an ordinary engagement into a disqualifying conflict or a basis to decline under Rule 1.16.

Common questions

Q: A client of mine wants me to write a will cutting out their adult child, who is also my client on a separate matter. Is that a conflict?

A: Ordinarily not. The opinion concludes "there ordinarily is no conflict of interest when a lawyer undertakes an engagement by a testator to disinherit a beneficiary whom the lawyer represents on unrelated matters."

Q: Why isn't disinheriting my other client "directly adverse" to them?

A: Because they have no legal right to the inheritance. The opinion explains a potential beneficiary "has no legal right to that bequest but has, instead, merely an expectancy," and direct adversity requires a conflict of legal rights, not economic interests.

Q: When does this become a real conflict?

A: When the testator owes the beneficiary a legal duty (such as a contract to make a will or a forced-heirship statute), or when advising on whether to disinherit creates a significant risk the lawyer's duties to the beneficiary will materially limit the representation.

Q: What if I'm uncomfortable taking the engagement against my other client?

A: The opinion notes the lawyer may decline. Under Rule 1.16 a lawyer may withdraw from or refuse a representation the lawyer finds repugnant or where she has good-faith doubts about exercising independent judgment.

Background and rules framework

The opinion interprets Model Rule 1.7(a)(1) (direct adversity) and 1.7(a)(2) (material limitation), with Comment [6] distinguishing legal-rights conflicts from economic ones, and Rule 1.7(b) for any consentable conflict. It also relies on Rule 1.16(a)(1) and 1.16(b)(4) (mandatory and permissive withdrawal), Rule 2.1 Comment [5] (offering unrequested advice in the client's interest), and Rule 1.2(a) (abiding by the client's decisions on objectives). It is based on the Model Rules as amended in August 2003.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7(a)(1), (a)(2), (b) and Comment [6] (concurrent conflicts)
• ABA Model Rule 1.16(a)(1), (b)(4) (withdrawal)
• ABA Model Rule 2.1 Comment [5] (unrequested advice)
• ABA Model Rule 1.2(a) (objectives of representation)

Statutes:

• La. Civ. Code arts. 1493, 1621 (forced heirship; limits on disinheriting young or disabled children)

Cases:

• Moore v. Anderson Zeigler Disharoon Gallagher & Gray, 135 Cal. Rptr. 2d 888 (Cal. Ct. App. 2003)
• Trask v. Butler, 872 P.2d 1080 (Wash. 1994)

Other opinions cited:

• ABA Formal Op. 02-428 (2002): drafting a will on the recommendation of a beneficiary who is also a client

See also

• ABA Formal Op. 05-435: Suing the Insured of a Client Insurer
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• ABA Formal Op. 494: Conflicts From a Personal Relationship With Opposing Counsel

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 05-434.pdf