May the lawyer who drafts a will name himself as the estate's attorney, executor, or a beneficiary, and does it matter whether the client asked for it?

Plain-English summary

The inquirer asked about four situations arising when a lawyer drafts a client's will: (1) the scrivener, absent any request from the testator, inserts a direction that the executor retain the scrivener or his firm as attorney for the estate; (2) the testator specifically directs the scrivener to include such a provision; (3) the testator directs the scrivener to appoint himself executor or trustee; and (4) the testator directs the scrivener to include a legacy for himself.

On the first situation, the Committee was direct: inserting such a designation as a matter of form, without a request from the client, violates DR 2-103(A), whose thrust is that professional employment must be initiated by the client. The Committee cited State v. Gulbankian and In re Honig, 10 N.J. 75 (1952), for the principle that a lawyer should refrain from any action by which, for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client, and concluded the conduct was unethical.

On the remaining situations, where the testator directs the designation, legacy, or fiduciary appointment, the Committee described a more vexing problem and drew on Drinker's Legal Ethics and New Jersey decisions warning that a lawyer named as beneficiary, executor, or estate counsel should avoid even the suspicion of abusing the confidential relationship. The Committee concluded that the prudent practice under these circumstances was to have the legacy created by independent counsel in a codicil, or to have independent counsel prepare the entire will.

Currency note

This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The rules it applied (DR 2-103(A) on initiating employment, and the canons on a lawyer's gain at a client's expense) now correspond broadly to RPC 7.3 and RPC 1.8(c), the current rule on lawyer-drafted instruments giving the lawyer a substantial gift. Treat this page as historical context, not current guidance.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: May a will drafter name himself as estate counsel without the client asking?

A: No. The opinion concluded that inserting a retention designation as a matter of form, without a request from the testator, violates DR 2-103(A) and is unethical because employment must be initiated by the client.

Q: What if the testator specifically directs that the drafter be retained, named executor, or given a legacy?

A: The opinion treated this as a more difficult question and concluded the prudent practice was to have independent counsel prepare the will, or create the legacy through a codicil drawn by another lawyer, to avoid the suspicion of abusing the confidential relationship.

Q: Did the opinion say a directed retention clause binds the executor?

A: The opinion quoted Drinker's observation that a direction to employ the drafter as estate counsel is not binding on the executor, who remains free to choose counsel, and said this should be explained to the testator.

Background and rules framework

The opinion applied DR 2-103(A), which required that professional employment be initiated by the client, and the older canon principle (Canon 11) that a lawyer must not, for personal benefit, take advantage of the client's confidence. In current New Jersey terms, the self-initiated retention clause implicates RPC 7.3 (solicitation of employment), and the testator-directed legacy or fiduciary appointment implicates RPC 1.8(c), which restricts a lawyer from preparing an instrument giving the lawyer a substantial gift. The opinion's recourse to independent counsel tracks the concern that a lawyer-drafter avoid even the appearance of overreaching.

Citations and references

Rules of Professional Conduct:

• MR 1.8 / NJ RPC 1.8(c) (lawyer-prepared instruments and gifts); decided under former Canon 11
• MR 7.3 / NJ RPC 7.3 (solicitation); decided under former DR 2-103(A)

Cases:

• In re Honig, 10 N.J. 75 (1952) (lawyer must not abuse the client's confidence for personal gain)
• State v. Gulbankian, 54 Wis. 2d 605, 196 N.W.2d 733 (1972) (systematic self-designation as estate counsel is unethical)

Other references:

• Henry S. Drinker, Legal Ethics 94 (1953)
• ABA Comm. on Professional Ethics, Opinion 602 (1963)

See also

• NJ ACPE Op. 683: Attorney-Scrivener Serving as Fiduciary for a Client
• NJ ACPE Op. 696: Attorney-Executor Referral to a Spouse's Real-Estate Agency

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp487-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

108 N.J.L.J. 501, December 3, 1981

OPINION 487

Attorney's Including Personal Gain in Client's Will

The inquirer requests us to provide the ethical considerations surrounding the preparation and execution of a client's last will and testament under the following circumstances: (1) Where the scrivener, absent a request from the testator, includes a direction that the executor retain the services of the scrivener or his firm as attorney for the estate. (2) Where the scrivener is specifically directed by the testator to include such a provision. (3) Where the testator directs the scrivener to appoint himself as executor or trustee under his last will and testament. (4) Where the testator directs the scrivener to include a provision for a legacy for himself.

Inquiry 1. The suggested practice would clearly violate DR 2-103(A). The thrust of DR 2-103(A) is that professional employment must be initiated by the client. The inclusion of such designations as a matter of form in the preparation of wills is violative of DR 2-103(A). In State v. Gulbankian, 54 Wis.2d. 605, 196 N.W.2d. 733 (Sup. Ct. 1972), 57 A.L.R.3d. 696 (1974), the Wisconsin Supreme Court in concluding the conduct to be unethical, cites former Canon 11, existing DR 2-103(A) and the "appearance" of solicitation that results from such a systematic inclusion as the three reasons that such conduct should be frowned upon. Our Supreme Court in In re Honig, 10 N.J. 75 78 (1952), held: The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client. Clearly, this proposition is still a viable ethical standard notwithstanding the fact that it was bottomed on former Canon 11, since replaced by the Disciplinary Rules. See also ABA Comm. on Professional Ethics, Opinion 602 (1963). We are of the opinion that such conduct is unethical.

Inquiry 2. The inclusion of a mandatory designation of the scrivener as attorney for the executor at the insistence of the testator provides a more vexing problem. In his treatise on legal ethics, Henry S. Drinker handles the question thus: A question is sometimes raised as to the propriety of a lawyer's inserting in the will a legacy to himself, or a provision appointing him executor or trustee, or one directing his executors to employ him as counsel for the estate. This, of course, depends on the surrounding circumstances. If they are such that the lawyer might reasonably be accused of using undue influence, he will be wise to have the provision inserted in a codicil drawn by another lawyer. Where, however, a testator is entirely competent and the relation has been a longstanding one, and where the suggestion originates with testator, there is no necessity of having another lawyer in the case of a reasonable legacy, or of a provision appointing the draftsman executor, or of a direction that he be retained by the executors. In the case of the latter provision, it should be clearly explained to the testator that it will not be binding on the executor, who will be free to choose his own counsel, since a lawyer has no vested interest in representing the estate of one whose will he has drawn." Drinker, Legal Ethics 94 (1953) *** (footnote omitted)

Our courts have on occasion said that where a testator wishes to name his attorney or a member of his attorney's family as a beneficiary, ordinary prudence requires that the will be drawn by some other lawyer of the testator's choosing, and thus to avoid the suspicion of an abuse of the confidential relationship. In re Nixon's Will, supra, Brogan, C.J.; In re Davis' Will, supra, where Mr. Justice Oliphant said: 'Such steps are in conformance with the spirit of Canons 6, 11 of the Canons of Professional Ethics promulgated by this court.' See also In re Putnam's Will, supra. Canon 11 declares that the lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.' It would seem to be equally imperative that the lawyer also avoid the suspicion of benefit or gain. By the civil law a will written by a person in favor of himself was void. Bennett v. Bennett, 50 N.J. Eq. 439, 446 (Prerog. 1892). This by an ordinance under Claudius, that the writer of another's will should not mark down a legacy for himself. 28 L.R.A., N.S. 272.

Clearly these admonitions from our Supreme Court spanning 27 years dictate that the prudent practice under these circumstances is to have the legacy created by independent counsel in a codicil or having independent counsel prepare the entire will. See also State v. Horan, 21 Wis 2d. 66, 123 N.W. 2d. 488 (Sup. Ct. 1963), and State Bar Association v. Behnke, 276 N.W. 2d. 838 (Sup. Ct. Iowa 1979); In re Gonyo, 73 Wis. 2d. 624, 245 N.W. 2d. 893 (Sup. Ct. 1976), and cases collected in 98 ALR 2d. 1234 (1964).