Can a lawyer draft a client's will that names the lawyer as executor and then hire herself as counsel to the estate?

Plain-English summary

A lawyer asked whether she may draft a client's will naming her as executrix, and whether as executrix she may then retain herself as counsel to the estate. The committee concludes there is no per se prohibition, but the lawyer must work through the conflict rules. Under Mass. R. Prof. C. 2.1, a lawyer advising an estate-planning client on the selection of a fiduciary and the fiduciary's counsel must exercise independent professional judgment and render candid advice.

The opinion identifies the core conflict under Rule 1.7(b): the lawyer's interest in being named, and in earning fees as executrix and as counsel, are personal interests that may, depending on the lawyer's qualifications, not be in the client's best interest. The committee points to the Supreme Judicial Court's holding that there is no per se bar to a lawyer qualifying as executor under a will he drafted (McInerny v. Lally), while stressing that the lawyer must consider with the client whether alternative fiduciaries might be better equipped to handle the estate, given the nature of the assets and the lawyer's own experience.

The committee draws on Georgia Formal Advisory Opinion #91-1, which prescribes a detailed written consent form (the decision must originate with the client, alternatives must be listed, conflicts disclosed, and total fees in both capacities must be reasonable). Massachusetts has no equivalent requirement, but the opinion concludes the same concerns are present and require the lawyer to proceed in the client's best interest. The committee notes that while Rule 1.8(a) is not directly applicable, Comment 8 to Model Rule 1.8 (added in 2002 and not yet adopted in Massachusetts) provides relevant guidance on disclosing the lawyer's financial interest and the availability of alternative candidates.

In practice

Under this opinion, conduct in which a lawyer drafts a will naming herself as executor and counsel is permitted only where the lawyer has exercised the independent judgment Rule 2.1 requires and the arrangement serves the client's best interest. Per the opinion, the lawyer should discuss whether alternative fiduciaries are better suited, the methods of calculating fees in both capacities, and the fact that the probate court reviews total fees for reasonableness. Where the lawyer also represents family members who may benefit from the estate, the opinion states the lawyer should discuss this with the testator, and in some circumstances may have to refrain from acting as executrix or counsel.

Common questions

Q: Can a Massachusetts lawyer draft a will that names herself as executor?

A: Yes. The opinion concludes there is no per se bar, citing McInerny v. Lally, but the appointment must be handled under the conflict rules and serve the client's interest.

Q: What conflict rule applies?

A: Rule 1.7(b). The lawyer's interest in the fiduciary appointment and the related fees is a personal interest that may materially limit her independent judgment, so the client's informed consent after consultation is required.

Q: Can the lawyer-executor then hire herself as the estate's counsel?

A: The opinion does not prohibit it, but the lawyer must exercise independent judgment under Rule 2.1, weigh whether alternatives are better suited, and ensure that total fees in both roles are reasonable and subject to probate-court review.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 2.1 (independent professional judgment and candid advice) and Rule 1.7(b) (the general conflict rule, barring representation materially limited by the lawyer's own interests absent the lawyer's reasonable belief and the client's consent after consultation). It compares Rule 1.8(a) (business transactions with a client) without applying it directly, and references Model Rule 1.8 Comment 8 (not adopted in Massachusetts as of the opinion).

Citations and references

Rules of Professional Conduct:

• Model Rule 2.1 / Mass. R. Prof. C. 2.1 (advisor; independent professional judgment)
• Model Rule 1.7 / Mass. R. Prof. C. 1.7(b) (conflict from the lawyer's own interests)
• Model Rule 1.8 / Mass. R. Prof. C. 1.8(a) (business transactions; compared, not applied)

Cases:

• McInerny v. Lally, 384 Mass. 810 (1981) (no per se bar to a lawyer qualifying as executor under a will he drafted)
• Cleary v. Cleary, 427 Mass. 286 (1998) (burden on a fiduciary who benefits from a transaction with a beneficiary)

Other opinions cited:

• Georgia Formal Advisory Opinion #91-1 (prescribed written-consent form for naming the drafting lawyer as fiduciary)

See also

• MA Bar Ethics Op. 06-03: Buyer's job offer to the seller's lawyer
• MA Bar Ethics Op. 09-01: GAL reviewing the lawyer's own prior fees
• MA Bar Ethics Op. 11-04: Disclosing estate information to beneficiaries

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2006-opinion-06-01/opinion-06-01