Can a lawyer draft a client's will that names the lawyer as a devisee, even if only to pass the property on to a charity of the lawyer's choosing?

Plain-English summary

An elderly widow, living on Social Security and owning virtually no estate beyond personal property, asked her lawyer to draft a new will naming the lawyer as executor and her son as primary beneficiary. If her son predeceased her, she wished to leave her estate to a charity but could not decide which one. The proposed will provision gave the property, if the son did not survive her, to the drafting attorney "for the sole purpose of disposing of said property by distributing it to the charitable institution of his choice," less costs of sale and distribution. The lawyer asked whether including that provision was proper.

The committee quoted DR 5-104(B), under which a lawyer shall not prepare an instrument giving the lawyer or a member of the lawyer's family any gift from a client, including a testamentary gift, except where the client is a relative of the donee. To comply with the rule, the committee opined that the property should be placed in a trust, and concluded that the language the lawyer had chosen did not clearly place the client's property in trust, so it suggested the language be revised.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, under current Rule 1.10(a) the disqualification is now imputed to the lawyer's entire firm. 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 Treat this page as historical context, not current guidance.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 the lawyer as a beneficiary?

A: Under this 1988 opinion, not unless the client is a relative. DR 5-104(B) barred a lawyer from preparing an instrument giving the lawyer a testamentary gift except where the client is a relative of the donee.

Q: How did the committee suggest handling the gift-to-charity provision?

A: The committee said that to comply with DR 5-104(B) the property should be placed in a trust, and that the lawyer's chosen language did not clearly create such a trust and should be revised.

Background and rules framework

The opinion interpreted former Virginia DR 5-104(B), governing a lawyer preparing an instrument that gives the lawyer or the lawyer's family a gift from a client. The current analog is Rule 1.8 (the substantial-gifts provision), the counterpart of ABA Model Rule 1.8(c); as the committee note records, under Rule 1.10(a) the disqualification is now imputed to the lawyer's firm.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-104(B) (lawyer preparing an instrument giving the lawyer a gift)
• ABA Model Rule 1.8 (gifts to the lawyer; current Rule 1.10(a) imputation per the committee note)

See also

• VA LEO 1387: Lawyer-Fiduciary's Firm and the Estate
• VA LEO 1778: Representing an Administrator-Spouse

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1100.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1100

WILLS – BUSINESS RELATIONS WITH
CLIENT – ATTORNEY DRAFTING WILL
AND NAMING HIMSELF AS
EXECUTOR AND DEVISEE.

You advise that an elderly widow has asked you to draw up a new will which names you as executor and names her son as the primary beneficiary. Your client has virtually no estates, other than personal property, and is living on social security payments. Should your client's son predecease your client, she wishes to give her estate to a charity but is unable to decide what charity to name. You wish to know whether or not it is proper to include the following provision in your client's will: "If my son _ does not survive me then I give, devise, and bequeath the aforesaid property to Attorney (your name) of _, Virginia, for the sole purpose of disposing of said property by distributing it to the charitable institution of his choice, less any costs of sale and distribution." DR:5-104(B) states that a lawyer shall not prepare an instrument giving the lawyer or a member of the lawyer's family any gift from a client, including a testamentary gift, except where the client is a relative of the donee. In order to comply with the disciplinary rule, the Committee opines that the property should be placed in a trust. The Committee does not believe that the language which you have chosen clearly places your client's property in your trust and suggests that the language be revised. Committee Opinion July 11, 1988 Legal Ethics Committee Notes. – Under Rule 1.10(a), this disqualification is now imputed to the lawyer’s entire firm.