When drafting a client's will or trust, can the lawyer suggest being named as the personal representative or trustee, and as the estate's lawyer?

Plain-English summary

A probate and estate-planning lawyer noted that some clients seeking wills or trusts have no individual or institution they wish to name as personal representative or trustee. The lawyer asked four related questions: whether the lawyer may suggest being named in the instrument as personal representative or trustee (to serve without bond for a reasonable fee); whether the lawyer may accept such a nomination if the client independently asks; whether the lawyer may draft the instrument naming the lawyer as the lawyer for the estate or trust; and whether the lawyer must then advise the client that the fiduciary ultimately chooses counsel.

The opinion concluded the lawyer may not suggest the nomination, because a lawyer's suggestion that the lawyer be appointed personal representative or trustee constitutes solicitation prohibited by MRPC 7.3(a). The lawyer may, however, accept the nomination if asked independently by the client, subject to the conflict and business-transaction rules: MRPC 1.7(b) requires full disclosure of the pros and cons of the lawyer serving, and MRPC 1.8(a) requires giving the client a reasonable opportunity to seek the advice of independent counsel. The opinion noted the first scenario amounts to the lawyer securing additional, favorable engagement, raising the question whether the terms are reasonable to the estate and client.

The opinion concluded no rule prohibits the lawyer from drafting the instrument to name the lawyer as the lawyer for the estate or trust, provided there were no improper suggestions or solicitation, since that is presumably why the client consulted the lawyer. But the lawyer must notify the client at drafting that, despite the nomination, the personal representative or trustee may choose whomever they wish as counsel, consistent with MRPC 1.7(b)(2), to avoid later conflict-of-interest claims.

Currency note

This opinion was issued in 1997, before later amendments to the Michigan 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 Treat this page as historical context, not current guidance.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: Can a lawyer suggest naming themselves as personal representative or trustee?

A: No. The opinion concluded that such a suggestion constitutes solicitation prohibited by MRPC 7.3(a).

Q: Can the lawyer accept the role if the client asks first?

A: Yes. The opinion concluded the lawyer may accept the nomination if the client independently asks, provided the lawyer fully discloses the pros and cons (MRPC 1.7(b)) and gives the client a chance to seek independent counsel (MRPC 1.8(a)).

Q: Can the lawyer draft the instrument naming themselves as the estate's lawyer?

A: The opinion concluded no rule prohibits this, provided there was no improper suggestion or solicitation.

Q: Must the lawyer tell the client the fiduciary picks counsel?

A: Yes. The opinion concluded the lawyer must advise the client that, despite the nomination, the personal representative or trustee ultimately chooses who serves as counsel for the estate or trust.

Background and rules framework

The opinion interpreted MRPC 7.3(a) (Model Rule 7.3) on solicitation for pecuniary gain, MRPC 1.8(a) and (c) (Model Rule 1.8) on business transactions with and gifts from clients, and MRPC 1.7(b) (Model Rule 1.7) on representations materially limited by the lawyer's own interests. It quoted the Comment-style disinterested-lawyer standard and cited Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988), within the text of MRPC 7.3(a).

Citations and references

Rules of Professional Conduct:

• MR 7.3 / MRPC 7.3(a) (solicitation for pecuniary gain)
• MR 1.8 / MRPC 1.8(a), (c) (business transactions with clients; gifts)
• MR 1.7 / MRPC 1.7(b) (material limitation by the lawyer's own interests)

Cases:

• Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988), targeted-mail solicitation

See also

• Mich Ethics Op. RI-275: lawyer-owned ADR business serving related lawyers' clients
• Mich Ethics Op. RI-213: guardian/conservator may not also be the ward's counsel
• Mich Ethics Op. RI-244: direct-mail circular touting affordable fees

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1161&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-291

April 23, 1997

SYLLABUS

Where a lawyer has been asked by a client to draw up a testamentary device or trust, the lawyer may not suggest that the lawyer be named as the Personal Representative or Trustee to serve without bond for a reasonable fee. However, the lawyer may accept the nomination if asked independently by the client, provided the lawyer makes the appropriate disclosures to the client.

References: MRPC 1.8(a) and (c), 1.7(b), 7.3(a).

TEXT

The inquirer is a lawyer practicing in the field of Probate and Estate planning who finds that some clients seek testamentary devises or trusts, but do not have any individual or institution that they wish to nominate as personal representative or trustee.

The inquirer poses four related questions: (1) The lawyer asks about the propriety of suggesting that the lawyer (inquirer) be named in the instrument as personal representative or trustee, to serve without bond and for a reasonable fee; (2) In the event the lawyer cannot suggest such a nomination, may the lawyer properly agree to the nomination if the client independently asks the lawyer to serve; (3) The inquirer asks about the propriety of the lawyer (inquirer) drafting the instrument to name the lawyer as the lawyer for the estate or trust, regardless of who is nominated as personal representative or trustee; and (4) If such nomination is proper, must the lawyer subsequently advise the client, that despite the nomination, the personal representative or the trustee has the ultimate choice relating to who will actually serve as counsel for the estate or the trust.

There are a number of Rules of Professional Conduct which provide guidance in answering these questions.

MRPC 7.3 states:

"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term "solicit" include "sending truthful and nondeceptive letters to potential clients known to face particular legal problems" as elucidated in Shapero v. Kentucky Bar Ass'n, 486 US 466; 108 S Ct. 1916; 100 L Ed 2d 475 (1988)."

Clearly, a suggestion by the lawyer that the lawyer be appointed to serve as the personal representative or trustee would constitute solicitation, and is therefore prohibited by the Rules of Professional Conduct.

MRPC 1.8(a) and (c) state:

"(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:

"(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;

"(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and

"(3) the client consents in writing thereto."

Providing further insight is the general rule relating to conflict of interest, MRPC 1.7(b) which states:

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:

"(1) the lawyer reasonably believes the representation will not be adversely affected; and

"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." Emphasis added.

Here, clearly in the first question the inquirer seeks to secure multiple representation as it relates to the client on very favorable terms including serving without a bond and for a fee that the lawyer feels is reasonable, but the real question would be whether or not that is reasonable to the estate and to the client under all of the circumstances.

There appears to be no prohibition against the attorney accepting the nomination if independently asked by the client, however, counsel must consider Michigan Rule of Professional Conduct 1.7(b)(2) - Conflict of General Interest, which provides that the lawyer must provide complete disclosure to the client, detailing both the pros and cons of the lawyer serving as the personal representative of the estate. Counsel must also comply with MRPC 1.8(a)(2), which requires the lawyer to give the client a reasonable opportunity to seek the advice of independent counsel in the transaction.

It appears that no rule of professional conduct prohibits the lawyer from drafting the instrument to name the lawyer as the lawyer for the estate or the trust provided there have been no improper suggestions or solicitation, as presumably that is the very reason for the client visiting and consulting with the lawyer to begin with. However, the lawyer does have the responsibility of notifying the client at the time of drafting the instrument that notwithstanding the nomination of personal representative or trustee, the fiduciaries may choose whomever they wish to act as counsel for the estate or the trust, in line with the requirements of MRPC 1.7(b)(2).

In conclusion, it appears that the lawyer may not suggest that the lawyer be named as the personal representative or trustee to serve without bond for a reasonable fee, however, the lawyer may accept the nomination if asked independently by the client, provided the lawyer makes the appropriate disclosures to the client.

Moreover, the lawyer may draft the instrument naming the lawyer as the lawyer for the estate or the trust, however, the lawyer should advise the client that despite that nomination the personal representative or the trustee will ultimately have the choice of counsel, thus avoiding any potential claims of conflict of interest at a later point.