Does a lawyer who received a gift of property from a grandparent have an ethical duty to reconvey it to a parent to honor the grandparent's unwritten wishes?

Plain-English summary

Over several years before his death, a grantor made annual gifts of real estate by deed to his three children and nine grandchildren. One or more grandchildren were attorneys who had no confidential, fiduciary, or attorney-client relationship with the grantor and did not learn of the gifts until after his death. The grantor's children said his intent was for each grandchild to reconvey his or her interest to the grandchild's parent, but that intent appeared in no deed or other written document. The question was whether an attorney-grandchild had an ethical duty to convey the interest to the parent, or whether any rule prohibited doing so.

The committee said that although the facts present interesting legal questions, the attorney-grandchild had no fiduciary, confidential, or attorney-client relationship with the grantor or, apparently, with any other grandchildren or children. As a result, the only potentially applicable ethical rules are those governing transactions with persons other than clients, generally an attorney's duty to be truthful to others, restrictions on communications with represented persons, rules for dealing with unrepresented persons, respect for the rights of third persons, and the prohibition on threatening criminal prosecution to gain advantage in a civil matter. None of those rules applied other than as generally applicable, and the committee concluded there was apparently no ethical rule requiring an attorney-grandchild to fulfill the grandparent's unwritten intent to reconvey, nor any ethical rule prohibiting conveyance to the parent.

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 Treat this page as historical context, not current guidance.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: Does a lawyer who is gifted property have an ethical duty to honor the donor's unwritten wishes about it?

A: The committee said no, where the lawyer had no fiduciary, confidential, or attorney-client relationship with the donor; no ethical rule required the lawyer-grandchild to reconvey the property to fulfill the grandparent's unwritten intent.

Q: Does any rule prohibit the lawyer from conveying the gifted property to the parent?

A: The committee said no; it found no ethical rule prohibiting the attorney-grandchild from conveying the interest to the parent.

Q: Which rules apply when a lawyer's interest is purely personal, not as counsel?

A: The committee said only the general rules on dealings with non-clients apply: truthfulness to others, limits on contacting represented persons, dealing with unrepresented persons, respect for third persons' rights, and the bar on threatening criminal charges for civil advantage.

Background and rules framework

The opinion does not interpret a single dispositive rule; it explains that, absent any fiduciary or client relationship between the lawyer-grandchild and the grantor, only the general "transactions with persons other than clients" rules (Model Rules 4.1 through 4.4 and their South Carolina counterparts) could apply, and that none imposed a special duty here.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.1 / Model Rule 4.1: truthfulness in statements to others.
• South Carolina RPC 4.2 / Model Rule 4.2: communication with represented persons.
• South Carolina RPC 4.3 / Model Rule 4.3: dealing with unrepresented persons.
• South Carolina RPC 4.4 / Model Rule 4.4: respect for the rights of third persons.

See also

• SC Bar Ethics Op. 90-34: Suing a Former Client
• SC Bar Ethics Op. 90-46: Gifts to Judges
• SC Bar Ethics Op. 90-35: Councilman-Lawyer Suing County

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-41/

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 90-41

In each of several years prior to death, Grantor transferred real estate by deed to each of his three (3) children and nine (9) grandchildren, for a total of twelve (12) gifts each year. One or more of the grandchildren are attorneys, who had no confidential, fiduciary or attorney-client relationship with the Grantor, and were not aware of the gifts until after the death of the Grantor. The children of the Grantor have stated that the Grantor's intent was for each grandchild to re-convey his or her interest in the real estate to his or her parent, the child of the Grantor. This intent does not appear in any other deeds, nor in any written document.

Questions:

1. Is an attorney-grandchild under an ethical duty to convey his interest in the property to his parent?
2. Is there any Rule of Professional Conduct which would prohibit an attorney-grandchild from conveying his interest in the property to his parent?

Summary:
There is apparently no ethical rule which would require any attorney-grandchild to fulfill the unwritten intent of his grandparent to re-convey property given to him by the grandparent. Neither does there appear to be any ethical rule which would prohibit him from conveying the property to his parent.

Opinion:
Although the facts present interesting legal questions, the attorney-grandchild has no fiduciary, confidential, or attorney- -client relationship with the Grantor nor, apparently, with any other grandchildren of children of the Grantor. Therefore, the only ethical rules likely to be applicable are those involving transactions with persons other than clients. These generally involve: an attorneys' duty to be truthful in his statements to others, restrictions on an attorney's communications with persons represented by counsel, rules for dealing with unrepresented persons, respect for the rights of third persons, and a prohibition against threatening criminal prosecution to obtain an advantage in civil matter. None of these rules appear to be other than generally applicable to the facts stated above, and an attorney-grandchild should be aware to these rules in dealing with other parties. There is apparently no ethical rule which would require any attorney grandchild to fulfill the unwritten intent of his grandparent to reconvey to his parent, property given to him by the grandparent, nor any ethical rule which would prohibit him from conveying the property to his parent.