Can a Mississippi lawyer drafting a will let the existing client name the lawyer in the will as attorney for the client's estate?

Plain-English summary

The Committee addressed a lawyer drafting a will for a client, "T," where the client asked the lawyer to name himself in the will as the attorney for T's estate. The lawyer was not a beneficiary under the will. The question was whether the lawyer could ethically draft himself into the will as the attorney for the estate.

The opinion answered yes. It reasoned that because the lawyer had been requested by a client to perform additional duties on behalf of the client, no ethical provisions came into play, and there were no questions of conflict of interest, solicitation, or attorney-client relationship where the additional services involved an existing client.

The opinion added two limits on its scope. It stated the opinion should not be construed to mean that a lawyer is not obligated to act with professionalism in obtaining future services, citing Ethics Opinion 39. And it stated the opinion did not address whether the executor is bound to hire the attorney named in the will, citing Ethics Opinion 46.

Currency note

This opinion was issued in 1987, under the Mississippi rules of professional conduct as they stood before the adoption of the current Mississippi Rules of Professional Conduct effective June 22, 1994 (amended February 5, 1999). The opinion cited no numbered rule. Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, and 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 Treat this page as historical context, not current guidance.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 drafting a will name himself in it as attorney for the estate?

A: The opinion concluded yes, where the existing client asks the lawyer to do so and the lawyer is not a beneficiary. It found no conflict, solicitation, or attorney-client problem in performing the additional service for an existing client.

Q: Does naming the lawyer in the will count as improper solicitation?

A: Per the opinion, no. Because the request came from an existing client for an additional service, the opinion concluded no question of solicitation arose.

Q: Does this mean the executor must hire the lawyer named in the will?

A: The opinion expressly did not decide that question, pointing the reader to Ethics Opinion 46 instead.

Background and rules framework

The opinion was rendered in 1987 under the Mississippi rules then in force, before the current Rules of Professional Conduct took effect in 1994. The opinion analyzed the request in terms of conflict of interest and solicitation (concerns reflected today in Model Rules 1.7 and 7.3 and their Mississippi counterparts) but cited no numbered rule, resting instead on the fact that the additional service was requested by an existing client.

Citations and references

Rules of Professional Conduct:

• The opinion cited no numbered rule. It analyzed the question in terms of conflict of interest and solicitation (concepts now reflected in Model Rules 1.7 and 7.3).

Other opinions cited:

• Mississippi Ethics Opinion 39: professionalism in obtaining future services.
• Mississippi Ethics Opinion 46: whether an executor is bound to hire the attorney named in a will.

See also

• MS Bar Ethics Op. 195: Lawyer as Witness in a Will Contest
• MS Bar Ethics Op. 180: Firms 'Of Counsel' to Each Other

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/173/
• Original PDF: https://www.msbar.org/media/1444/35a_et_op_173.pdf

Original opinion text

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

ETHICS OPINION NO. 173

OF THE MISSISSIPPI BAR

RENDERED June 22, 1987

CONFLICT OF INTEREST- An attorney may allow a client to name him in the client's last will and testament as attorney for the client's (testator's) estate.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion in the following facts:

Attorney is drafting a will for client, "T". Client T requests attorney to name himself in T's will as the attorney for T's estate. Attorney is not a beneficiary under the will. Can Attorney ethically draft himself into T's will as the attorney for T's estate?

ANSWER: Yes. Since the Attorney has been requested by a client to perform additional duties on behalf of the client, no ethical provisions come into play. There are no questions of conflict of interest, solicitation or attorney client relationship where the additional services involve an existing client.

This opinion should not be construed to mean that an attorney is not under an obligation to act with professionalism in obtaining future services. See,Ethics Opinion 39. Nor does this opinion deal with whether or not the executor is bound to hire the attorney named in the will as his attorney.See, Ethics Opinion 46.