Is it misconduct for a lawyer to slip a clause into a will, without the testator's knowledge, naming the lawyer's firm to represent the estate?

Plain-English summary

The inquiry described a lawyer who inserted a provision in a will stating that, on the testator's death, the firm of which the drafting lawyer was a member should probate the will and otherwise represent the estate, where the client did not request the provision and did not learn of it until examining a copy of the will several months after signing it.

All members agreed that inserting such a provision at the testator's request is perfectly proper and not unethical, citing Texas Ethics Opinion 71. The Committee stressed that its conclusion was predicated entirely on the testator's not having requested or known of the provision; one member found it hard to see how that could happen with a testator of sound mind who read or had the will read to him before signing.

On those facts, all members agreed that inserting the provision without the testator's request and without his knowledge was not only unethical but dishonorable and fraudulent, characterizing it as "reprehensible and despicable" and as "criminal" (8-0). One member viewed it as a Canon 24 solicitation, but the others could not point to a specific Texas Canon. The Committee noted that Canon 2 makes the Texas Code of Ethics cumulative of all Texas laws on lawyers' professional conduct, and that Section 8 of Article XII of the Rules of the State Bar of Texas defines professional misconduct to include any fraudulent or dishonorable conduct. The opinion cross-references Opinion 171.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Is it improper to name your own firm as estate counsel in a will you draft?

A: Not if the testator requests it; the Committee said that is perfectly proper, citing Opinion 71. The violation arises when the clause is inserted without the testator's request or knowledge.

Q: How did the Committee characterize inserting the clause secretly?

A: As not merely unethical but dishonorable and fraudulent, with members calling it "reprehensible and despicable" and "criminal" (8-0).

Q: Which rule did the conduct violate?

A: The Committee grounded the violation in Section 8 of Article XII of the Rules of the State Bar of Texas, which defines misconduct to include fraudulent or dishonorable conduct; one member also saw a Canon 24 solicitation, though the others identified no specific canon.

Background and rules framework

The opinion rests primarily on Section 8 of Article XII of the Rules of the State Bar of Texas (defining professional misconduct to include fraudulent or dishonorable conduct) and references Texas Canon 2 (the Code of Ethics is cumulative of Texas law) and Canon 24 (advertising and solicitation, per one member). The modern analogs are ABA Model Rule 8.4 (misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation) and Model Rule 7.3 (solicitation).

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; dishonesty, fraud, deceit, or misrepresentation), as the modern analog
• MR 7.3 (solicitation), as a modern analog to the Canon 24 view
• Texas Canon 2 (Code of Ethics cumulative of Texas law)
• Texas Canon 24 (advertising and solicitation), per one member
• Rules of the State Bar of Texas, Section 8 of Article XII (professional misconduct includes fraudulent or dishonorable conduct)

Other opinions cited:

• Texas Ethics Opinion 71: inserting the provision at the testator's request is proper
• Texas Ethics Opinion 171: cross-referenced

See also

• TX Ethics Op. 171: Naming Yourself Estate Counsel
• TX Ethics Op. 182: Lawyer as Executor and Estate Fees
• TX Ethics Op. 158: Suing to Oust an Executor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-152/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_152.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Canons of Ethics for an attorney to insert a provision in a will that upon the death of the testator the firm of which the attorney preparing the will was a member should probate the will and otherwise represent the estate where the client did not request such provision and did not know of its existence until he discovered it upon examining a copy of the will several months after its execution?

18 Baylor L. Rev. 259 (1966)

FRAUDULENT PRACTICES - WILLS
To insert in a will with out the testator's knowledge or consent, that upon his death the firm of which the attorney preparing the will was a member should represent the estate is fraudulent and dishonorable with in the meaning of Section 8 of Article XII of the Amendments to the Rules of the State Bar of Texas.

State Bar Rules, Sec. 8, Art. XII.

All members of the committee agree that the insertion of such a provision in a will at the request of the testator is perfectly proper and is not unethical in any respect. Opinion No. 71 of the Texas Ethics Committee is cited in support.

All members also agree that their opinion is definitely predicated upon the fact that the testator neither requested nor knew of such provision being in the will. One member particularly finds it difficult to understand how such provision could be in the will without the testator knowing about it since it would be assumed the testator was of sound mind and that he read the will, or had it read to him, before signing it.

All members agree that if the attorney inserted such provision in the will, without it being requested by the testator and without the testator's knowledge, that such action was not only unethical, but that it was dishonorable and fraudulent. It was also characterized as "reprehensible and despicable" and as "criminal." One member is of the opinion that Canon 24 was violated as being a solicitation, but none of the other members were able to point to any specific Texas Canon as being violated. However, it was pointed out that Canon 2 provides that the Texas Code of Ethics is cumulative of all laws of Texas relating to the professional conduct of lawyers and to the practice of law, and that Section 8 of Article XII of the Rules of the State Bar of Texas defines professional misconduct as including any fraudulent or dishonorable conduct. (8-0) (See Opinion 171)

Tex. Comm. On Professional Ethics, Op. 152 (1957)