Can a lawyer draft a client's will that names the lawyer as personal representative or trustee?

Plain-English summary

The committee was asked whether an attorney who is frequently asked to serve as primary or successor trustee or personal representative in clients' wills would violate the Rules of Professional Conduct, specifically Rule 1.8, by doing so. It answered no.

The committee explained that Rule 1.8(c) bars a lawyer from preparing an instrument giving the lawyer (or a parent, child, sibling, or spouse) any substantial gift from a client, including a testamentary gift, except where the client is related to the donee, the concern being the drafter's position to exert undue influence. It observed that the rule reaches only drafting a will in which the lawyer is an unrelated, substantial beneficiary, and neither the rule nor its commentary supports a broader prohibition, beyond the Model Code's EC 5-6 caution against consciously influencing a client to name the lawyer as executor, trustee, or counsel. It therefore concluded it is appropriate for an attorney, on the client's request, to draft a will naming the attorney as personal representative or trustee.

The committee noted that potential conflicts could arise on other facts, for example serving as trustee while representing one of two heirs with conflicting interests (citing Virginia State Bar Opinion 1590), but those facts were not before it. The question was only the general one, which the committee answered in the affirmative.

Currency note

This opinion was issued in 1995, before the State Bar of Montana's adoption of the 2004 revisions to the 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 Treat this page as historical context, not current guidance.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 name himself trustee or personal representative in a will he drafts for a client?

A: The opinion concludes yes, on the client's request, because Rule 1.8(c) does not prohibit it.

Q: What does Rule 1.8(c) actually prohibit?

A: The opinion explains it bars drafting an instrument giving the lawyer or a close relative a substantial gift, including a testamentary gift, unless the client is related to the donee.

Q: Could a conflict still arise from serving as trustee?

A: The opinion notes a conflict could arise on other facts, such as serving as trustee while representing one of two heirs with conflicting interests, but did not decide such a case.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.8(c) (prohibited transactions; substantial gifts; Model Rule 1.8), noting the Model Code's EC 5-6 caution and a Virginia State Bar opinion on later conflicts.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.8(c) (substantial gifts) / Model Rule 1.8
• ABA Model Code EC 5-6 (influence to be named executor, trustee, or counsel)

Other opinions cited:

• Virginia State Bar Op. 1590 (1994): conflict serving as trustee while representing an heir

See also

• State Bar of Montana Ethics Op. 910529: Lawyer Serving as Collection Trustee
• State Bar of Montana Ethics Op. 960731: Spouses Retaining a Lawyer for Estate Planning

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/951231.pdf

Original opinion text

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

FACTS/QUESTIONS PRESENTED: Attorney is frequently asked by clients to serve as either primary or successor trustee and/or personal representative in their wills. If Attorney were to serve in any of these capacities would he violate the Rules of Professional Conduct, specifically Rule 1.8?

SHORT ANSWER: No.

DISCUSSION: Rule 1.8, Conflict of Interest: Prohibited Transactions, applies to the question presented here. The Rule provides, in pertinent part:

(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

Rule 1.8 (c) establishes a general prohibition against a lawyer's drafting an instrument giving her or him or a close relative a substantial gift from a client. The primary concern is that the attorney drafting the instrument is well positioned to exert undue influence.

Notably, the rule only prohibits an attorney from drafting a will in which he or she is an unrelated or substantial beneficiary. Neither the rule itself nor any applicable commentary admits of a broader prohibition, except that EC 5-6, contained in the Model Code of Professional Responsibility, cautions attorneys to avoid "consciously influenc[ing] a client to name him as executor, trustee, or lawyer in an instrument." Thus, it is appropriate for an attorney, upon the client's request, to draft a will in which the attorney is named personal representative or trustee.

Of course, potential conflicts could arise; for example, if an attorney served as trustee of an estate and at the same time represented one of two heirs of the estate, where the heirs' interests were in conflict. See Opinion 1590 of the Virginia State Bar (April 11, 1994). However, such facts - or any others creating a potential conflict - are not before us. We have only been asked if, in general, an attorney may abide by his client's request to serve as personal representative or trustee in a will which the attorney drafts for that client. We answer in the affirmative.

THIS OPINION IS ADVISORY ONLY