Can a lawyer who is a director of and attorney for a bank insist that an estate-planning client name that bank as fiduciary?

Plain-English summary

A lawyer who served as a director of a bank, and represented the bank as its attorney, advised a client on an estate plan and insisted that the client appoint that bank as fiduciary. The client had no current relationship with the bank and no intention of forming one; he had consulted another bank he did business with on fiduciary matters and had some interest in using it. The lawyer disclosed his relationship with his bank but persisted in pressing for it as fiduciary.

The committee applied Rule 1.2(a) (the lawyer abides by the client's decisions on the objectives of representation), Rule 1.4(b) (the lawyer explains a matter enough for the client to make informed decisions), and Rule 1.7(b) (no representation materially limited by the lawyer's own interests absent reasonable belief of no adverse effect and client consent after disclosure). It reviewed earlier opinions allowing lawyer-bank arrangements only where the client stays free to choose counsel and a different trust company (Opinions 135 and 346) and reiterated, citing Opinion 830 and former Rule 5-107, that a lawyer's judgment must serve the client free of the interests or desires of third persons.

On the facts, the committee found the lawyer had properly disclosed his relationship, but the selection of the fiduciary was the client's prerogative. A lawyer may recommend a specific fiduciary after full disclosure, but lacking the client's consent he should accede to the client's decision or withdraw. To persist in having his bank client named as fiduciary was, under these circumstances, professionally improper.

Currency note

This opinion was issued in November 1990, under the 1990 Illinois Rules of Professional Conduct and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.2(a), 1.4(b), and 1.7), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer recommend a fiduciary in which the lawyer has an interest?

A: The opinion concluded a lawyer may recommend a specific fiduciary after fully disclosing his relationship with it, but the choice belongs to the client.

Q: What must the lawyer do if the client does not consent to the lawyer's preferred fiduciary?

A: Per the opinion, lacking the client's consent the lawyer should accede to the client's decision or withdraw; insisting on his own bank was professionally improper.

Q: Was the lawyer's disclosure of his bank relationship enough?

A: The opinion found the disclosure proper but not sufficient to justify insisting on the fiduciary; selecting the fiduciary remained the client's prerogative under Rule 1.2(a).

Background and rules framework

The opinion applied the 1990 Illinois Rules of Professional Conduct: Rule 1.2(a) (abiding by the client's objectives), Rule 1.4(b) (communication sufficient for informed decisions), and Rule 1.7(b) (conflicts arising from the lawyer's own interests), and drew on former Rule 5-107's principle of undivided loyalty free of third-party influence. These correspond to ABA Model Rules 1.2, 1.4, and 1.7. The Board's 2010 affirmation maps the analysis to current Illinois Rules 1.2(a), 1.4(b), and 1.7.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.2(a), 1.4(b), 1.7(b) (1990 Rules, applied in the opinion)
• MR 1.2 (scope of representation), MR 1.4 (communication), MR 1.7 (conflicts of interest)

Other opinions cited:

• ISBA Advisory Opinion No. 135 (1955): lawyer-bank trust-department office arrangement permissible only if the client stays free to choose counsel and trust company
• ISBA Advisory Opinion No. 346 (1970): lawyer may act as a bank trust officer under limits separating legal and trust work
• ISBA Advisory Opinion No. 830 (1983): a lawyer's judgment must serve the client free of third-party influence (former Rule 5-107)

See also

• ISBA Ethics Op. 89-14: Lawyer Who Is Also an Insurance Agent
• ISBA Ethics Op. 89-17: Who Is the Client When an Insurer's Staff Lawyer Defends the Insured

Source

• Landing page: https://www.isba.org/ethics/opinions/9002