Can a lawyer draft a client's will naming himself as personal representative and trustee, and then take commissions and legal fees from the estate?

Plain-English summary

A client directed an attorney to prepare the client's will naming the attorney as personal representative and as testamentary trustee of the trusts created under the will, and the attorney was willing to serve. The committee was asked whether it is ethical for the attorney to prepare the will naming himself, to take a personal representative's commission and a trustee's fee, and to also receive legal fees for legal services to the estate.

The committee said Rule 1.8(c), which bars a lawyer from preparing an instrument giving the lawyer (or a close relative) a substantial gift, including a testamentary gift, except where the client is related to the donee, is the only Rule that would preclude drafting the will; so except in those circumstances, it is not unethical for an attorney to prepare such documents at a client's request. Whether the attorney may take a personal representative's commission and a trustee's commission is a matter of substantive law, and an attorney is entitled to such a double commission under the same circumstances a non-attorney would be (citing Opinion 90-21); if the method of determining commissions is set in the will or trust, it should be reasonable and customary so as not to be construed as a "gift" that would violate Rule 1.8(c). The committee said there is no prohibition against an attorney who serves as personal representative and trustee also serving as attorney for the estate and collecting reasonable legal fees; in setting a reasonable fee the attorney should consider whether any legal services duplicate services performed in another capacity, and the dual service should be fully disclosed to the probate court, any court where an action is pending, and all beneficiaries and interested parties (citing In re Richard W. James). While not a per se violation, the committee noted the potential for Rule 1.7 conflicts is clear, and that if facts make such a conflict reasonably foreseeable, the attorney should decline representation from the outset.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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: Can a lawyer draft a will naming himself personal representative and trustee?

A: The committee said yes, at the client's direction, unless Rule 1.8(c) applies (a substantial testamentary gift to the lawyer where the client is not related to him).

Q: Can the lawyer take both a personal representative's commission and a trustee's fee?

A: The committee said yes, on the same terms a non-lawyer could; the commission method should be reasonable and customary so it is not construed as a gift under Rule 1.8(c).

Q: Can the lawyer also charge legal fees for serving as the estate's attorney?

A: The committee said yes, reasonable legal fees are permissible, provided they do not duplicate services performed in another capacity and the dual role is disclosed to the court and interested parties; foreseeable Rule 1.7 conflicts require declining.

Background and rules framework

The opinion interprets Rule 1.8(c) (preparing an instrument giving the lawyer a substantial gift) and Rule 1.7 (conflicts of interest), each corresponding to the like-numbered Model Rule, and treats the entitlement to fiduciary commissions as a matter of substantive law rather than the Rules. The committee made disclosure of the dual role and non-duplication of fees the key controls.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(c) / Model Rule 1.8: a lawyer shall not prepare an instrument giving the lawyer a substantial gift, including a testamentary gift, except where the client is related.
• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest.

Cases:

• In re Richard W. James, 229 S.E.2d 594 (S.C. 1976), disclosure of dual fiduciary and attorney roles.

Other opinions cited:

• SC Bar Advisory Opinion 90-21: entitlement to a double fiduciary commission.

See also

• SC Bar Ethics Op. 92-12: Lawyer Named as Personal Rep
• SC Bar Ethics Op. 91-34: A Lawyer Who Is a Bankruptcy Trustee Representing Creditors

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-07/

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 91-07

An attorney is directed by his client to prepare the client's will naming the attorney as Personal Representative and as Testamentary Trustee of the Trust(s) created under the will. The attorney is willing to so serve.

Questions:
(1) Is it ethical for the attorney to acquiesce in this direction thereby preparing the client's will and naming himself as Personal Representative and Trustee?
(2) Is it ethical for the attorney to take a Personal Representative's commission and a Trustee's fee under these circumstances?
(3) Is it ethical for the attorney to render legal services to the Estate and receive, in addition to the Personal Representative's commission and Trustee's commission, compensation (legal fees) for such legal services?

Summary:
(1) It is ethical for an attorney at the direction of a client to prepare the client's will and name himself as Personal Representative and Trustee except under the circumstances proscribed under Rule 1.8(c).
(2) It is ethical for an attorney to take a Personal Representative's commission and Trustee's fee under these circumstances?
(3) It is not per se unethical for the attorney to render legal services to the Estate and receive, in addition to the Personal Representative's commission and Trustee's commission, compensation in the form of legal fees for such services.

Opinion:
Rule 1.8 (c) provides A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as 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.

This Rule is the only prohibition in the Rules of Professional Conduct that would preclude an attorney from drafting a will or trust agreement at the request of a client. Therefore, except under these circumstances, it is not unethical for an attorney to prepare such documents at the request of a client. The question of whether or not an attorney may take a Personal Representative's commission and Trustee's commission under these circumstances is a matter of substantive law. An attorney would be entitled to take a Trustee's commission and a Personal Representative's commission under the same circumstances that a non-- attorney would be entitled to take such a double commission.

(See SC Bar Advisory Opinion No. 90-21). If the method of determining commissions is set forth in the will and/or trust agreement, the method should be one that is reasonable and customary for all Personal Representatives and Trustees so as not to be construed as a "gift" thereby rendering the conduct of an attorney violative of Rule 1.8 (c).

There is no prohibition in the Rules of Professional Conduct against an attorney who serves as a Personal Representative and Trustee of an Estate to also serve as attorney for the same Estate and to charge and to collect reasonable legal fees for such services. In determining what a reasonable fee would be, the attorney should consider, inter alia, if any portion of the legal services duplicate or overlap services being performed in any other capacity. Service in such dual capacities should be fully disclosed to the Probate Court and any other court where an action is pending involving the Estate; and such disclosure also should be made to all beneficiaries and other parties having an interest in the Estate (e.g. bondsmen). See In re Richard W. James, 229 S.E. 2d 594 (1976). While there is not a per se violation of the Rules of Professional Conduct in undertaking to render legal services under these circumstances, the potential for conflicts under Rule 1.7 is clear. If the attorney is aware of any facts or circumstances that would render it reasonably foreseeable that such a conflict is likely to arise, the attorney should decline representation from the outset.