Can a lawyer who drafts a client's will be named as the executor of the estate?

Currency note

This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Plain-English summary

The inquiry concerned EC 5-6 and will preparation: some clients had asked the lawyer to be named executor of their estates, and the lawyer had never suggested it. The Board quoted EC 5-6, which provides that a lawyer should not consciously influence a client to name the lawyer as executor, trustee, or lawyer in an instrument, and that where a client wishes to do so, the lawyer should take care to avoid even the appearance of impropriety.

The Board identified potential conflicts the client should consider: the potentially lucrative practice of probating wills could impair the lawyer's judgment when advising on the will, and if the lawyer is called to testify in a proceeding involving the estate, the lawyer may have to withdraw as counsel under DR 5-102. It cited a Philadelphia opinion (80-2) for the duty to advise the client of the DR 5-102 conflict if the client insists, and an Alabama opinion (86-82) suggesting a lawyer may serve as executor if she reveals the dual role to the court and beneficiaries and makes a good-faith determination that any legal work she performs as executor is necessary and benefits the estate. The Board concluded that an attorney may draft a will naming the attorney executor without violating the Code, but the decision must be the client's, free of any influence or suggestion by the attorney preparing the will.

Common questions

Q: Can a lawyer be the executor of a will the lawyer wrote?

A: Under this opinion, yes, provided the client chose it without the lawyer's influence or suggestion; the lawyer may not consciously steer the client to that result.

Q: What must the lawyer tell a client who wants to name the lawyer executor?

A: The opinion required the lawyer to advise the client of the potential conflicts, including that probate work may affect the lawyer's judgment and that the lawyer may have to withdraw under DR 5-102 if called to testify.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility, EC 5-6 (a lawyer should not consciously influence a client to name the lawyer as executor, trustee, or counsel, and should avoid the appearance of impropriety) and DR 5-102 (withdrawal when the lawyer ought to be a witness).

Citations and references

Rules of Professional Responsibility (Ohio):

• Former Code of Professional Responsibility, EC 5-6, no conscious influence; avoid the appearance of impropriety
• Former Code of Professional Responsibility, DR 5-102, lawyer as witness and withdrawal

Other opinions cited:

• Philadelphia Bar Assn. Op. 80-2 (1980): duty to advise of the DR 5-102 conflict
• Alabama Bar Assn. Op. 86-82 (1986): disclosure of the dual role to court and beneficiaries

See also

• Ohio BPC Opinion 1988-014: Videotaping a Will Execution
• Ohio BPC Opinion 1989-005: Office-Sharing Lawyers on Opposing Sides of a Divorce

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-014.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-014
Issued May 30, 1989

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A lawyer preparing a will for a client may not attempt to influence or encourage the client to name the lawyer as executor. If the client insists on naming the lawyer preparing the will as executor, the lawyer should explain to the client the potential for conflicts. If the lawyer serves as executor, the lawyer should make every attempt to avoid even the appearance of impropriety.

OPINION: We have before us your request for an advisory opinion regarding EC 5-6 of the Code of Professional Responsibility and will preparations. According to your request, a few of your clients have requested that you be named executor of their estate. You also indicate that you have never suggested this to your clients. Ethical Consideration 5-6 states that:

[a] lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.

Potential conflicts which the client should consider include: 1) the potentially lucrative practice of probating wills may impair a lawyer's best judgment when advising a client in the preparation of his or her individual will; and 2) if the lawyer is called to testify in a proceeding involving her client's estate, she may have to withdraw as counsel under DR 5-102. In each instance, the lawyer must disclose the potential conflict and balance any potential conflict against her client's right to freely choose an executor.

A lawyer may not consciously influence a client to name the lawyer as executor of an estate. If the client insists on naming the lawyer who prepares the will as executor, the lawyer must advise the client of the potential for conflict pursuant to DR 5-102. Philadelphia Bar Assn. Op. 80-2 (1980). It has also been suggested that a lawyer may serve as executor providing she reveals her dual rule to both the court and the beneficiaries of the will. Alabama Bar Assn. Op. 86-82 (1986). The Alabama opinion further recommends that the lawyer make a good faith determination that any legal work she performs as executor is necessary and will benefit the estate. Id.

In conclusion, an attorney may draft a will naming the attorney executor without violating the Code of Professional Responsibility. However, such a decision should be made by the client, free of any influence or suggestion by the attorney preparing the will.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.