Can a lawyer draft a client's will naming himself personal representative with power to sell the home and bill at his hourly rate, and witness the will?

Plain-English summary

A client with nominal assets but who owned her home asked her attorney to revise her will. Feeling she had no suitable relatives to serve as personal representative, she suggested the attorney serve, and he was willing but wanted to be paid. The questions were whether the attorney could draft a will naming himself personal representative, given power to sell the home and instructed to pay himself at his regular hourly rate, and whether he could witness its execution.

The committee noted the inquirer had anticipated the Rule 1.8(c) limitation against preparing an instrument giving the lawyer a substantial gift, including a testamentary gift, and explained that because appointment as personal representative is not a gift, the rules do not prohibit the lawyer from taking that position of responsibility. It stressed the lawyer must take particular care to explain all matters adequately, especially where the instrument gives him powers like selling the home and paying himself, citing Rule 1.4(b) (explaining a matter enough for the client to make informed decisions). It directed the lawyer to consider conflict possibilities, noting the Comment to Rule 1.7 recognizes conflict questions in estate planning and administration and that, depending on one's view, the client may be the fiduciary or the estate including its beneficiaries; Rule 1.7(b) bars representation materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. Under Rule 1.2 (scope of representation) read with Rule 1.1 (competence), the committee reasoned that if the attorney must use legal skills serving as personal representative, it is fair to charge his normal rates, but the fees remain subject to Rule 1.5's reasonableness requirement: if he is already charging his legal rate for legal services, he is precluded from adding statutory personal-representative fees on top. Finally, the committee said the attorney is not prohibited from witnessing the will's execution but would be advised to secure independent witnesses.

Currency note

This opinion was issued in 1992, 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 that names himself as personal representative?

A: The committee said yes. Because the appointment is not a gift, Rule 1.8(c)'s bar on drafting an instrument giving the lawyer a substantial gift does not apply.

Q: Can the lawyer be paid for serving, and how?

A: The committee said he may charge his regular hourly rate if he uses legal skills as personal representative, subject to Rule 1.5 reasonableness, but he should not also take the statutory personal-representative fees on top of his legal fees.

Q: What must the lawyer do given his own interest in the role?

A: The committee required full explanation under Rule 1.4(b) and attention to Rule 1.7(b) conflicts: he may proceed only if he reasonably believes the representation will not be adversely affected and the client consents after consultation.

Q: Can the lawyer witness the will?

A: The committee said he is not prohibited from witnessing the execution but is advised to secure independent witnesses.

Background and rules framework

The opinion applied Rule 1.8(c) (gifts and instruments), Rule 1.7(b) (the lawyer's own-interest conflicts, with estate planning flagged in the Comment), Rule 1.4(b) (communication), Rule 1.2 with Rule 1.1 (scope and competence), and Rule 1.5 (reasonable fees), each corresponding to the like-numbered Model Rule. The analysis turned on the appointment not being a gift and on avoiding double recovery of legal and statutory fees.

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; an appointment as personal representative is not a gift.
• South Carolina RPC 1.7(b) / Model Rule 1.7: own-interest conflicts; estate planning flagged in the Comment.
• South Carolina RPC 1.4(b) / Model Rule 1.4: explain a matter enough for informed client decisions.
• South Carolina RPC 1.2(a) and 1.1 / Model Rules 1.2 and 1.1: scope of representation and competence.
• South Carolina RPC 1.5 / Model Rule 1.5: fees must be reasonable; no stacking statutory PR fees on legal fees.

See also

• SC Bar Ethics Op. 92-03: Closing Lawyer Also Serving as Title Insurance Agent
• SC Bar Ethics Op. 92-27: Lawyer-Defendants and Title Agents in a Land Suit

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-12/

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 92-12

Client has nominal assets, but she owns her home. She has asked her attorney to revise her will. She feels that she has no relatives who are suitable to serve as the personal representative. She has suggested that the attorney serve as personal representative, and he is willing to serve in this capacity, but he would like to be paid for the work.

Question:
May the attorney draft a will in which he is named as the personal representative, given the power to sell the home and is instructed to pay himself at his regular hourly rate? If he may draft such a will, may he be a witness to its execution?

Summary:
The attorney may draft a will which names himself as personal representative. He may also be given the power to sell the home and to pay himself at his regular hourly rate. He should not, however, pay himself both the personal representative's statutory fees and the attorney's fees. Although the attorney would not be prohibited from witnessing the execution, he would be advised to secure independent witnesses.

Opinion:
In his statement of facts, the inquirer has anticipated the limitation against preparing an instrument giving himself a substantial gift, including a testamentary gift, from a client. (See Rule 1.8 (c).) Since the appointment of the personal representative is not a gift, the rules do not prohibit placing himself in a position of responsibility as personal representative.

The attorney should take particular care to make sure that all matters have been adequately explained to the client. This is especially important in a situation where the attorney wants to draw an instrument which gives himself powers as selling the home and paying himself a fee. Rule 1.4. (b) states "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to take informed decisions regarding the representation." The Comment goes on to explain that the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. In fulfilling his obligations of communication, the attorney should carefully consider any possibilities of a conflict of interest. The general rule dealing with conflicts of interest (Rule 1.7) points out in the Comment that conflict questions may arise in estate planning and estate administration. There is not a prohibition against an attorney serving both as personal representative and attorney. Yet the Comment points out that depending upon one's view, the client may be the fiduciary or the estate, including its beneficiaries. The lawyer is directed to make clear the relationship to the parties involved. Rule 1.7 (b) does state that a lawyer shall not represent the client if the representation of the client may be materially limited by the lawyer's own interests unless: 1) the lawyer reasonably believes the representation will not be adversely affected, and 2) the client consents after consultation.

Finally, Rule 1.2 deals with the scope of representation. Rule 1.2 (a) states that a lawyer shall abide by a client's decision concerning the objectives of representation. The Comment explains that an agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. "Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1." Rule 1.1. directs a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, fairness and preparation reasonably necessary for representation. It is logical, then, that if the attorney is required to use legal skills while serving as personal representative, then it is fair that he charges his normal rates.

The fees would be subject to Rule 1.5. This Rule dictates that a lawyer's fee shall be reasonable. If he is already charging his legal rate because of his providing legal services, then he would be precluded from adding on further statutory fees as the personal representative.