Can a New Jersey lawyer who drafts a client's will also serve as the executor of that will?

Plain-English summary

The inquirer, who had drafted a client's will, asked whether he could properly accept appointment as executor, given that RPC 1.8(c) bars a lawyer from preparing an instrument giving the lawyer "any substantial gift from a client, including a testamentary gift," except where the client is related to the lawyer. The Committee concluded that the rule did not prohibit the appointment.

The Committee reasoned that even though fiduciary commissions in an estate or trust administration may be "substantial," such commissions are "in no way a gift, but represent payment earned for services rendered." It noted that this conclusion is specifically assumed by N.J.S. 3B:18-6, which provides that a fiduciary who is a licensed New Jersey attorney and who performs professional services in addition to fiduciary duties is to be allowed a just counsel fee in addition to the statutory commissions.

Currency note

This opinion was issued in 1996, before New Jersey's adoption of the 2004 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 Treat this page as historical context, not current guidance.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: Does naming yourself executor in a will you drafted violate RPC 1.8(c)?

A: No. The opinion concluded that RPC 1.8(c)'s bar on preparing an instrument giving the lawyer a substantial gift did not reach the appointment, because a fiduciary commission is payment for services, not a gift.

Q: Why are executor's commissions not treated as a "gift" under the rule?

A: The Committee reasoned that commissions, even if substantial, represent payment earned for services rendered rather than a gratuitous transfer, a view it said is assumed by N.J.S. 3B:18-6.

Q: Could the attorney-executor also be paid for legal work done for the estate?

A: Per the opinion, N.J.S. 3B:18-6 provides that a fiduciary who is a licensed New Jersey attorney and performs professional services in addition to fiduciary duties is allowed a just counsel fee in addition to the statutory commissions.

Background and rules framework

The opinion interpreted New Jersey RPC 1.8(c) (Model Rule 1.8(c)), which prohibits a lawyer from preparing an instrument giving the lawyer or a close relative a substantial gift, including a testamentary gift, unless the client is related to the donee. The analysis turned on whether an executor's commission is a "gift" within the rule. The Committee read it together with the New Jersey probate statute, N.J.S. 3B:18-6, which contemplates that an attorney-fiduciary may receive both commissions and a counsel fee for professional services.

Citations and references

Rules of Professional Conduct:

• MR 1.8(c) / NJ RPC 1.8(c) (prohibited transactions; substantial gifts to the drafting lawyer)

Statutes:

• N.J.S. 3B:18-6 (commissions and counsel fee for an attorney-fiduciary)

See also

• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for Estate or Trust
• ABA Formal Op. 94-380: Counseling a Fiduciary
• NJ ACPE Op. 696: Attorney as Executor and Referral to Spouse's Real Estate Agency

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp683-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

145 N.J.L.J. 1501, September 30, 1996

5 N.J.L. 2095, September 30, 1996

OPINION 683

Conflict of Interest - Attorney/Scrivener Serving as Fiduciary for Client

The inquirer asks whether, as scrivener of a client's will, he may properly accept appointment as executor. The inquirer expresses concern that such action may be thought to violate RPC 1.8(c), which provides:

A lawyer shall not prepare an instrument giving the lawyer, or a person related to the lawyer as parent, child, sibling, or spouse, any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

Granting that fiduciary commissions may be "substantial" in an estate or trust administration, such commissions are in no way a gift, but represent payment earned for services rendered.

This conclusion is specifically assumed by N.J.S. 3B:18-6 which sets forth:

If the fiduciary is a duly licensed attorney of this State and shall have performed professional services in addition to his fiduciary duties, the court shall, in addition to the commissions provided by this Chapter, allow him a just counsel fee. If more than one fiduciary shall have performed the professional services, the court shall apportion the fee among them according to the services rendered by them respectively.