If a lawyer drafts a client's will naming himself executor and trustee, may he take both an executor's and a trustee's commission?

Plain-English summary

At a client's direction, an attorney prepared a will naming himself as both executor and trustee. The inquiry asked whether it was ethical for the attorney to take both a trustee's commission and an executor's commission.

The committee concluded that the question did not directly involve a matter of professional ethics addressed by the Rules of Professional Conduct. It reasoned that the attorney would be entitled to take a trustee's commission and an executor's commission under the same circumstances a non-attorney would be entitled to take such a double commission, noting little South Carolina case law on point but substantial authority elsewhere (citing In re Norris' Estate, 153 S.C. 203, 150 S.E. 693 (1929)). The committee added that, where the method of determining commissions is set out in the will, that method should be one that is reasonable and customary for all executors and trustees so as not to be construed as violating Rule 1.8(c). The committee observed that the facts were too limited to determine precisely what was being asked, and expressly did not address the situation where the lawyer who drafted the instrument naming himself trustee and executor is also retained as attorney for the estate or a beneficiary (citing In the matter of Richard W. James, 229 S.E.2d 594 (1976)).

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Could the lawyer who drafted the will take both an executor's and a trustee's commission?

A: The committee said the Rules did not directly govern this; the lawyer could take a double commission under the same circumstances a non-lawyer could.

Q: What limit did the committee place on the commission terms?

A: Where the will set the method for determining commissions, the committee said it should be reasonable and customary for all executors and trustees, so as not to be construed as violating Rule 1.8(c).

Q: Did the opinion cover the lawyer also serving as attorney for the estate?

A: No. The committee expressly declined to address the situation where the drafting lawyer who named himself executor and trustee is also retained as attorney for the estate or a beneficiary.

Background and rules framework

The opinion treated the double-commission question as one of probate and fiduciary law rather than the disciplinary rules, but flagged Rule 1.8(c), corresponding to Model Rule 1.8, as the limit on commission terms a lawyer-drafter sets for himself in the instrument.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(c) / Model Rule 1.8: limits on a lawyer preparing an instrument giving the lawyer a substantial gift or benefit.

Cases:

• In re Norris' Estate, 153 S.C. 203, 150 S.E. 693 (S.C. 1929), on entitlement to commissions.
• In the matter of Richard W. James, 229 S.E.2d 594 (S.C. 1976), referenced for the unaddressed estate-counsel situation.

See also

• SC Bar Ethics Op. 90-22: Updating Title and Foreclosing Against a Former Client
• SC Bar Ethics Op. 90-26: Government Board Member Representing a Juvenile

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-21/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-21

At the direction of a client, an attorney prepares a Will naming himself as Executor and Trustee.

Question:
Is it ethical for the attorney to take a Trustee's commission and an Executor's commission?

Opinion:
The question presented does not directly involve a matter of professional ethics that is addressed by the Rules of Professional Conduct. An attorney would be entitled to take a Trustee's commission and an Executor's commission under the same circumstances that a non-attorney would be entitled to take such a double commission. Although there is little case law in South Carolina addressing the question of when one may take a Trustee's commission and Executor's commission, there is substantial law in other jurisdictions. See, e.g., In Re Norris' Estate, 153 S.C. 203, 150 S.E. 693 (1929). In the event the method of determining commissions is set forth in the Will, the method should be one that is reasonable and customary for all Executors and Trustee so as not to be construed as violative of Rule 1.8 (c). The facts of the Question are so limited that it is difficult to determine precisely what is requested of the Committee. This opinion does not address the situation where the attorney who prepared the document naming himself as Trustee and Executor is also asked to be or retained as the attorney for the estate or any of the beneficiaries of the estate. See, e.g., In the matter of Richard W. James, 229 S.E.2d 594 (1976).