Can a California attorney draft or amend a will that leaves the attorney a substantial gift, and what must the attorney do if the client will not get independent advice?

Plain-English summary

An attorney had drafted a will for an unrelated client that appointed the attorney as trustee and left the remainder of a substantial testamentary trust to the attorney. The client now wished to lower the fixed monthly distribution to her son and to give the attorney-trustee discretion to distribute greater amounts, which would increase the amount the attorney would ultimately receive from the remainder. The attorney asked about the propriety of preparing the original will and the requested revision.

On undue influence, the committee identified Rule 4-400, which provides that a member shall not induce a client to make a substantial gift, including a testamentary gift, except where the client is related to the member. Relying on Magee v. State Bar, the committee identified that under California law a presumption of undue influence arises when an attorney drafts a will for an unrelated client in which the attorney receives more than a modest gift, and that the presumption can be rebutted by showing the client received independent advice (in Magee, an independent attorney read the will to the client paragraph by paragraph and explained the gift). The committee identified that the requested revision, by giving the attorney discretion to increase the son's payments and thereby affect the remainder, only increased the risk of wrongdoing. Because the client here had received no independent advice, the committee concluded the attorney's conduct would subject the attorney to disciplinary action. The committee identified that the attorney must direct the client to seek independent advice; if the client refuses, the attorney must not make the requested revisions, and if already retained must withdraw under Rule 3-700(B)(2).

On competence, the committee identified Rule 3-110 and questioned whether an attorney can be acting competently when drafting or amending a will, with actual or imputed knowledge that the act may cause the will to be contested on undue-influence grounds and ultimately denied probate. The committee concluded an appropriate course would be for the attorney to decline to modify the will and to refer the testator to independent counsel for review of the will and all further advice. The committee did not reach whether independent representation would cure any ethical violation with respect to the original will and trust.

Currency note

This opinion predates California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct; it interprets former Rule 4-400 (inducing a client gift), former Rule 3-110 (competence), and former Rule 3-700(B)(2) (mandatory withdrawal), which correspond to current Rules 1.8, 1.1, and 1.16. 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 mentioned here.

View original opinion

Common questions

Q: Can a California lawyer draft a will that leaves the lawyer a substantial gift?

A: Per the opinion, not without the client receiving independent advice. The committee relied on Rule 4-400 and Magee v. State Bar for the rule that drafting such a will for an unrelated client raises a presumption of undue influence and can subject the attorney to discipline.

Q: What must the attorney do if the client refuses to consult independent counsel?

A: The committee concluded the attorney must not make the requested revisions, and if already retained must withdraw under Rule 3-700(B)(2).

Q: Does this also affect the lawyer's competence?

A: Per the opinion, yes. The committee questioned under Rule 3-110 whether an attorney acts competently in drafting a will that may be invalidated on undue-influence grounds, and suggested the attorney decline to modify the will and refer the testator to independent counsel.

Background and rules framework

The opinion interprets former California Rule 4-400 (a member shall not induce a client to make a substantial gift except where the client is related to the member), which corresponds to ABA Model Rule 1.8(c); former Rule 3-110 (competence), corresponding to Model Rule 1.1; and former Rule 3-700(B)(2) (mandatory withdrawal), corresponding to Model Rule 1.16. The undue-influence analysis is anchored in Magee v. State Bar.

Citations and references

Rules of Professional Conduct (former):

• California Rule 4-400 (inducing a client gift)
• California Rule 3-110 (competence)
• California Rule 3-700(B)(2) (mandatory withdrawal)

Cases:

• Magee v. State Bar, 58 Cal.2d 423 (1962), presumption of undue influence and rebuttal by independent advice

See also

• LACBA Ethics Op. 492: Security Interest in Real Property to Secure Fees
• LACBA Ethics Op. 477: Dual-Profession Attorney-Physician Referrals to Own Clinic
• LACBA Ethics Op. 507: Percentage of Patent Profits as an Attorney Fee

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010981