Can a lawyer accept a substantial gift in a client's will if the lawyer does not prepare the will, and refer the client to another lawyer to draft it?

Plain-English summary

A lawyer previously prepared estate-planning documents for a client who is 45 years older, a next-door neighbor, and a close personal friend, and the lawyer was named contingent agent in the client's health-care power of attorney. After the client's longtime partner (the former beneficiary) died, the childless client now wants new documents naming friends, including the lawyer, as beneficiaries. The lawyer asks whether he may accept the gift if he does not prepare the documents, whether he may refer the client to a new lawyer, and whether the friendship raises issues.

The opinion applies Rule 1.8(c), which bars a lawyer from soliciting a substantial gift from a client (including a testamentary gift) or preparing an instrument giving the lawyer a substantial gift, unless the lawyer is related to the client; "related" includes individuals with whom the lawyer or client maintains a close, familial relationship. So long as the lawyer does not solicit the gift or prepare the document making it, he may accept it. The opinion adds that, given the longstanding close friendship, the 1.8(c) prohibition might not apply at all if the relationship is "close" and "familial" (a category not limited to traditional family, citing In re Peeples), but it stresses this inquiry is highly fact-specific and the safer course is to avoid soliciting the gift or preparing the documents.

On referral, the opinion concludes no rule bars a lawyer from referring a client to another lawyer to prepare documents the first lawyer cannot prepare, whether or not the relationship includes a close friendship, provided the two lawyers are unaffiliated (Rule 1.8(k)) and the second lawyer actually advises the client rather than just drafting at the first lawyer's direction. It notes, outside the ethics rules, that a testamentary gift to a lawyer may raise a presumption of undue influence even where the lawyer did not draft the documents (citing DeHart v. DeHart), and that the drafting lawyer should consider precautions, but it treats that as beyond the scope of the opinion.

In practice

Under this opinion, a lawyer may accept a substantial gift in an unrelated client's estate plan if he neither solicits it nor prepares the instrument, and may refer the client to an unaffiliated lawyer who independently advises the client and drafts the documents. The opinion holds that a sufficiently close, familial relationship could place the arrangement outside Rule 1.8(c) entirely, but that this is fact-specific and the safer course is to avoid soliciting or drafting. It notes, as a non-ethics matter, that such a gift may give rise to a presumption of undue influence even absent drafting, and that the drafting lawyer should consider protective precautions.

Common questions

Q: Can I be left a gift in my client's will?

A: Yes, if you do not solicit it or prepare the will. The opinion concludes Rule 1.8(c) permits accepting a substantial testamentary gift from an unrelated client so long as the lawyer neither solicits the gift nor prepares the instrument.

Q: Can I refer the client to another lawyer to draft the will that benefits me?

A: Yes. The opinion concludes no rule bars the referral, provided the two lawyers are unaffiliated (Rule 1.8(k)) and the second lawyer actually advises the client rather than drafting at your direction.

Q: Does a close friendship with the client change the analysis?

A: The opinion says a close, familial relationship could take the gift outside Rule 1.8(c) entirely, but the inquiry is highly fact-specific and the safer course is to avoid soliciting the gift or preparing the documents.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.8(c) (soliciting or preparing instruments for substantial gifts, and the related-persons exception) and Rule 1.8(k) (imputation of the 1.8 conflicts among affiliated lawyers). These correspond to Model Rule 1.8.

Citations and references

Rules:

• Illinois RPC 1.8(c) (MR 1.8): soliciting or preparing instruments for substantial client gifts
• Illinois RPC 1.8(k) (MR 1.8): imputation among affiliated lawyers

Cases:

• In re Peeples, 297 S.C. 36 (1988), "close, familial relationship" beyond traditional family
• DeHart v. DeHart, 2013 IL 114137, presumption of undue influence in testamentary gifts

See also

• NY State Bar Op. 610: Attorney-Draftsman as Executor and Beneficiary
• ABA Formal Op. 05-434: Disinheriting a Beneficiary Who Is a Client
• ISBA Ethics Op. 21-02: A Lawyer's Disclosure of Client Estate-Planning Documents

Source

• Landing page: https://www.isba.org/ethics/opinions/1804