Can the lawyer who drafted a will serve as the sole trustee of the trust it creates and also as guardian for the trust's beneficiary?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry asked whether an attorney may act as sole trustee on a trust created in a will the attorney drafted and, under the same circumstances, act as guardian for the beneficiary of the trust. It was the feeling of the committee that although the Rules of Professional Conduct may not directly prohibit the proposed conduct, other considerations may.
The opinion does not specify the other considerations. An editor's note directs the reader to Informal Opinion 86-1.
Currency note
This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The committee cited no rule of professional conduct and expressly hedged its conclusion; both the rules and any related guidance (including the referenced Informal Opinion 86-1) predate the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific point.
Common questions
Q: Do the ethics rules flatly bar a will-drafting lawyer from serving as trustee and guardian?
A: Per the opinion, not directly. The committee was of the opinion that the Rules of Professional Conduct may not directly prohibit the conduct, while adding that other considerations may.
Q: Did the committee approve the dual role?
A: No. The committee stopped short of approval; it said only that the rules may not directly prohibit it and that other considerations may, and it pointed to Informal Opinion 86-1.
Background and rules framework
The committee cited no numbered rule. The inquiry sits in the area of a lawyer accepting fiduciary appointments (trustee and guardian) arising from an estate plan the lawyer prepared, where the concern is the lawyer's own interest and the appearance of overreaching. The committee declined to ground a prohibition in a specific rule, noting only that considerations beyond the Rules of Professional Conduct may bear on the conduct, and it referred the reader to Informal Opinion 86-1.
Citations and references
The opinion cites no rule of professional conduct, statute, or case.
Other opinions cited:
- WSBA Informal Opinion 86-1 (referenced in an editor's note to this opinion).
See also
- WSBA Ethics Op. 946: a lawyer preparing a will that names the lawyer as a beneficiary or executor
- WSBA Ethics Op. 926: a lawyer serving as trustee in a deed-of-trust foreclosure while representing the lender
- WSBA Ethics Op. 947: a lawyer employing a nurse to help provide personal guardianship services
- ABA Formal Op. 02-428: drafting a will on the recommendation of a beneficiary-client
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=198
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1118
Year Issued: 1987
RPC(s):
Subject: Conflict of interest; lawyer who drafted will serving as both sole trustee of trust created by will and guardian for beneficiary of trust
You have asked whether an attorney may act as sole trustee on a trust which is created in a will drafted by that attorney, and under the same circumstances act as guardian for the beneficiary of the trust. It was the feeling of the Committee that although the Rules of Professional Conduct may not directly prohibit the proposed conduct, other considerations may.
[Editor's Note: See Informal Opinion 86-1].
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