Can a Massachusetts lawyer draft a client's estate plan that leaves a gift to a charity where the lawyer is an officer or board member?

Plain-English summary

An estate-planning lawyer who is the president of a small non-profit was asked by a client to draft a document making a substantial testamentary gift to that non-profit. The opinion concludes that the lawyer's leadership role creates a concurrent conflict of interest under Rule 1.7(a)(2): because the non-profit has limited means and the gift is substantial, there is a significant risk that the lawyer's personal interest in the charity's success will materially limit the representation.

The opinion treats the conflict as consentable. The lawyer has an attorney-client relationship with the donor but not with the non-profit, so the lawyer must fully inform the client of the potential conflict and obtain the client's informed consent, confirmed in writing, under Rule 1.7(b)(4). The opinion adopts the same conclusion the Oregon bar reached in its Formal Opinion 2005-116 on materially similar facts.

The opinion adds that, even with consent, the lawyer should proceed cautiously because a gift drafted by one of the charity's own officers can create the appearance of undue influence, a ground on which heirs or prior devisees may contest a will. Citing In re Estate of Edel, the opinion notes that a will contest on that theory may reach trial even where no presumption of undue influence applies. Per the opinion, the lawyer should point out to the client that the client's testamentary wishes would be less open to challenge if an independent lawyer prepared the will.

In practice

Under this opinion, conduct in which a lawyer who is an officer or board member of a charity drafts a client's gift to that charity is permitted only if the lawyer discloses the personal-interest conflict and obtains the client's informed consent confirmed in writing under Rule 1.7(b)(4). The opinion identifies the charity's limited means and the size of the gift as the factors that make the conflict significant.

The opinion also states that the disclosure should include the point that an independently drafted will is less susceptible to an undue-influence challenge. The committee frames this as information the client should receive, not as a directive that the client must use independent counsel.

Common questions

Q: Is the conflict waivable, or must the lawyer decline the work?

A: The opinion concludes the conflict is consentable. The lawyer may proceed if the client gives informed consent confirmed in writing under Rule 1.7(b)(4); the committee does not treat the situation as a non-consentable conflict.

Q: Does it matter that the charity is not the lawyer's client?

A: Yes. The opinion notes the lawyer has an attorney-client relationship only with the donor, so the consent required is the donor-client's. The conflict arises from the lawyer's personal interest as a charity officer, analyzed under Rule 1.7(a)(2), not from dual representation.

Q: What should the lawyer tell the client about will contests?

A: Per the opinion, the lawyer should explain that a gift drafted by one of the charity's officers can create an appearance of undue influence and that the client's wishes would be less vulnerable to challenge if drafted by an independent lawyer.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.7 (concurrent conflicts of interest), which tracks ABA Model Rule 1.7. Rule 1.7(a)(2) finds a conflict where there is a significant risk that a representation will be materially limited by the lawyer's own personal interest; Rule 1.7(b) allows the lawyer to proceed if the lawyer reasonably believes competent representation is possible and each affected client gives informed consent confirmed in writing. The opinion relies on Rule 1.0(g) (the Massachusetts numbering for the definition of informed consent) and Rule 1.7, Comment 8.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Mass. R. Prof. C. 1.7 (concurrent conflicts of interest)
• MR 1.0(e) / Mass. R. Prof. C. 1.0(g) (informed consent)

Cases:

• In re Estate of Edel, 700 N.Y.S.2d 664 (1999), undue-influence will contest involving a charity-affiliated drafter

Other opinions cited:

• Oregon Formal Op. 2005-116: lawyer-board-member drafting a donor's bequest; permissible with informed consent

See also

• ABA Ethics Op. 02-428: drafting a will for a beneficiary-client's referral
• ABA Ethics Op. 05-434: drafting a will disinheriting a client

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2024-opinion-24-1/opinion-24-1