Can a lawyer drafting a client's will offer to serve as the executor?
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This page answers the general question as of 1978. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee was asked whether a lawyer, in the course of drafting a client's will, may offer to serve as executor. It answered yes, but only in narrow circumstances.
The opinion turned on EC 5-6, under which a lawyer should not consciously influence a client to name the lawyer as executor, trustee, or counsel in an instrument, and where the client wishes to do so should take care to avoid even the appearance of impropriety. Recognizing that the draftsman is uniquely situated to secure additional employment, the committee read the Code as forbidding both the foisting of unsolicited services and conduct suggestive of that design. It explained that "consciously influence" describes overreaching for employment, requiring less pressure than "undue influence." Distinguishing prior authority that condemned the routine insertion of provisions naming the draftsman as executor, the committee held the identity of who first raises the subject is not the gravamen of propriety: it is more appropriate for the client to speak first, but the client speaking first does not always cure the problem, and the lawyer speaking first is not automatically improper.
The committee identified the circumstances that can justify a lawyer's offer: principally a firm conviction that the client would ask the lawyer to serve if aware of the lawyer's willingness, supported by a long-standing relationship and the client's difficulty finding other qualified persons to serve. Where the client's disposition is uncertain or shows even the slightest hesitancy, the lawyer should immediately desist and expressly withdraw the suggestion, and should never try to convince the client that the lawyer is well suited to the office. The question was answered in the affirmative, subject to those qualifications.
Currency note
This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. A lawyer's interest in being named a fiduciary for a client is now addressed under the conflict-of-interest framework of Rule 1.7 and the limits on lawyer-client transactions in Rule 1.8 and their comments. 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 suggest serving as executor?
A: Under this opinion, only in narrow circumstances, chiefly where the lawyer firmly believes the client would ask if aware of the lawyer's willingness, supported by a long relationship and the client's difficulty finding others to serve.
Q: Does it matter who raises the subject first?
A: Not by itself. The committee held the identity of who first suggests it is not the gravamen of propriety; the client speaking first does not always cure the problem, and the lawyer speaking first is not automatically improper.
Q: What must the lawyer do if the client hesitates?
A: Immediately desist and expressly withdraw the suggestion. The committee said the lawyer should never try to convince the client that the lawyer is well suited to serve.
Background and rules framework
The opinion interprets EC 5-6 (a lawyer not consciously influencing designation as executor, trustee, or counsel, and avoiding the appearance of impropriety). The current Model Rule framework addresses a lawyer's interest in a client appointment through Rule 1.7 (conflicts, including the lawyer's own interests) and Rule 1.8 with its comments on lawyer-client transactions and fiduciary appointments.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (conflict of interest: current clients)
- MR 1.8 (current clients: specific rules)
- NY EC 5-6
Other opinions cited:
- N.Y. State 140 (1970): routine insertion of provisions naming the draftsman as executor condemned
- ABA Inf. 602 (1963): lawyer draftsman named as executor
See also
- NY State Bar Op. 521: Holding a deceased client's will
- NY State Bar Op. 516: Insurer-employed lawyer drafting a customer's will
Source
- Landing page: https://nysba.org/opinion-481/
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