Can a lawyer who drafts a client's living trust and pour-over will also serve as the trustee and personal representative?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A client asked the inquiring lawyer to draft a revocable living trust with a pour-over will and to be named both personal representative of the will and successor trustee. The lawyer had urged the client to name a family member, trusted friend, or corporate fiduciary instead; the client rejected a corporate fiduciary, and the only family member the client trusted had declined. The lawyer asked whether it was ethical for the drafter to be named, and to serve, in those fiduciary roles.
The Committee analyzed ER 1.8(c), which bars a lawyer from preparing an instrument giving the lawyer a substantial gift, including a testamentary gift. Citing South Carolina Opinion 91-07 and Georgia Formal Advisory Opinion 91-1, it agreed that a lawyer who drafts a will or trust may be named executor or trustee, and that such an appointment does not constitute a gift under ER 1.8(c). The opinion echoed the Georgia opinion's disclosure points: the lawyer should disclose other potential fiduciary choices and their relative abilities and fees, the lawyer's dual role as fiduciary and counsel and the associated fees, the possibility that the lawyer's firm might represent the estate or trust, and the desirability of independent counsel for the client in making the decision.
The Committee added two limits. The fees received as successor trustee may not be in addition to legal fees charged for the same work. And under ER 2.1, which requires a lawyer to exercise independent professional judgment and render candid advice, the lawyer must decide in each circumstance whether independent judgment is possible while acting both as fiduciary and as lawyer for the trust or estate, remaining alert to possible conflicts if litigation ensues.
Currency note
This opinion was issued in 1996, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Is naming the drafting lawyer as trustee a prohibited gift under ER 1.8(c)?
A: No. The opinion concluded that ER 1.8(c) does not prohibit an attorney from writing a will or trust naming the attorney as successor trustee, executor, or even initial trustee, and that such an appointment would not constitute a gift.
Q: Can the lawyer charge both a trustee fee and a legal fee for the same work?
A: No. The opinion stated the fees received as successor trustee may not be in addition to legal fees charged for the same work.
Q: What should the lawyer disclose before accepting the fiduciary role?
A: Following the Georgia opinion it cited, the opinion identified disclosure of other potential fiduciaries and their abilities and fees, the lawyer's dual role and fees, the possibility the lawyer's firm represents the estate, and the desirability of the client seeking independent counsel.
Background and rules framework
The opinion construed ER 1.8(c) (a lawyer may not prepare an instrument giving the lawyer a substantial gift, including a testamentary gift, unless related to the donee) and ER 2.1 (the advisor's duty of independent professional judgment and candid advice). It relied on out-of-state authority from South Carolina and Georgia interpreting the same prohibition.
Citations and references
Rules of Professional Conduct:
- MR 1.8 (conflict of interest: prohibited transactions; ER 1.8(c) gifts)
- MR 2.1 (advisor)
Other opinions cited:
- South Carolina Op. 91-07 (1991): lawyer drafting a will or trust may be named personal representative or trustee
- Georgia Formal Advisory Op. 91-1: lawyer may be named executor or trustee with consent, disclosure, and a reasonable fee
See also
- No other sibling opinions yet indexed.
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
An attorney may draft a revocable living trust with a pour-over will for a client and be named as trustee and/or personal representative. Such an arrangement does not constitute a gift under ER 1.8, but the lawyer may not recover trustee fees in addition to legal fees for the same work. The lawyer must be able to exercise independent professional judgment when acting as both trustee and counsel to the estate. [ERs 1.8, 2.1]
The inquiring attorney represents a client who has requested that the attorney draft a revocable living trust with a will that pours over into the trust. The client has requested that the attorney be named as the personal representative of the will and as successor trustee under the trust. The attorney has advised the client that the attorney would prefer that the client name a family member, a trusted friend or a corporate fiduciary such as a bank as personal representative and successor trustee. The client has rejected the option of a corporate fiduciary and the only family member the client would trust to serve in such a capacity has declined.
QUESTION PRESENTED
Is it ethically proper for an attorney who drafts a revocable living trust with a pour-over will on behalf of a client who is both the trustor and testator (testatrix) to be named as a successor trustee and personal representative in such documents and ultimately to serve in such capacity?
RELEVANT ETHICAL RULES
ER 1.8 Conflict of Interest: Prohibited Transactions
ER 2.1 Advisor
OPINION
ER 1.8(c) provides:
A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse, a substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
This provision was considered in South Carolina in Opinion 91-07 (4/91) and it was held that a lawyer could draft a will or trust agreement naming himself as personal representative or trustee at the client's request. Similarly, in Opinion 91-1, the Formal Advisory Opinion Board of the State Bar of Georgia held that a lawyer who drafts a will or trust instrument for a client may also be named as executor or trustee provided that the lawyer does not promote himself or exert undue influence over the client's choice of executor or trustee, the lawyer obtains the client's consent in writing and the lawyer charges a reasonable fee for his services. Although this opinion was decided under the Model Code rather than the Model Rules, the standard set forth in the Georgia decision will remain equally applicable. This decision stated that the lawyer should disclose at a minimum the following: 1) other potential choices for executor and trustee and their relative abilities and fees; 2) the role of the lawyer as fiduciary and as counsel and his fees; 3) the possibility, if permitted under local law, that the lawyer may retain his own firm to represent the estate or trust an the fee anticipated for this representation; and 4) the lawyer should advise the client concerning the desirability of independent counsel for the client in making this decision.
The Committee agrees with the South Carolina and Georgia opinions and is of the opinion that ER 1.8(c) does not prohibit an attorney from writing a will or trust naming the attorney as successor trustee, executor, or even initial trustee. Moreover, such appointments would not constitute a gift under ER 1.8(c). The Committee notes, however, that the fees received as successor trustee may not be in addition to legal fees charged for the same work. Attorneys serving in such capacities should be cognizant of the possible conflicts in such a position if litigation ensues.
Another ethical rule involved is ER 2.1, which requires that a lawyer "exercise independent, professional judgment and render candid advice." The lawyer must decide in each circumstance whether the lawyer could exercise her independent, professional judgment and render candid advice if the lawyer or her law firm was acting both as executor/trustee and lawyer for the trust or estate.
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