Can a lawyer draft a parent's will that leaves the lawyer a substantial gift, and can a lawyer act as counsel for (or serve as) the personal representative of a parent's estate when the lawyer is also a beneficiary?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses two family-estate situations. Lawyer A's father asks Lawyer A to draft a will leaving Lawyer A a substantial gift. Lawyer B is asked to act as counsel for the personal representative probating the estate of Lawyer B's mother, where Lawyer B and several siblings are all beneficiaries.
On the first, the opinion applies Oregon RPC 1.8(c), which bars a lawyer from soliciting a substantial gift or preparing an instrument giving the lawyer or a relative a substantial gift, unless the recipient is related to the client. Because Lawyer A is the client's child, the related-person exception applies and Lawyer A may draft the will. Whether Oregon RPC 1.7 would additionally require the parent's informed consent confirmed in writing cannot be determined with certainty on the facts given.
On the second, the opinion explains that Lawyer B's client is the personal representative, not the beneficiaries. Lawyer B could not advise the personal representative to violate, or to assist in violating, the statutory or common-law duties the representative owes the other beneficiaries, and could not violate those duties directly if Lawyer B served as the personal representative. If the circumstances suggest that Lawyer B's independent professional judgment as counsel may be affected by Lawyer B's status as a beneficiary, Lawyer B could not proceed without the personal representative's informed consent, confirmed in writing, under Oregon RPC 1.7(a)(2) and 1.0(b), (g). Whether Lawyer B may serve as the personal representative of an estate in which Lawyer B is a beneficiary is within the probate court's discretion; RPC 1.7 would not apply because Lawyer B would be acting pro se rather than for a client, but Lawyer B would have to ensure the probate court was fully informed in making the appointment.
In practice
The opinion holds that, under the Oregon rules as they stood at the time of the opinion, the related-client exception in RPC 1.8(c) permits a child-lawyer to draft a parent's will containing a gift to the lawyer, and a beneficiary-lawyer may represent the estate's personal representative subject to RPC 1.7's material-limitation analysis and written consent. The analysis turns on the family relationship for the gift question and, for the probate question, on whether the lawyer's beneficiary status creates a significant risk of materially limiting the representation of the personal representative. Verify the current text of Oregon RPC 1.8(c), 1.7, and 1.0 before relying on any specific point.
Common questions
Q: Can I draft my parent's will if it leaves me a substantial gift?
A: Qualified yes. The opinion concludes RPC 1.8(c) excepts gifts where the lawyer is related to the client, so a child may draft a parent's will containing a gift to the child; whether RPC 1.7 also requires written informed consent depends on facts not given.
Q: Who is my client when I represent the personal representative of a parent's estate?
A: The personal representative, not the beneficiaries. The opinion concludes the lawyer may not advise the representative to breach duties owed to the other beneficiaries.
Q: Can I represent the estate's PR when I am also a beneficiary?
A: Qualified yes. The opinion concludes that if the lawyer's independent judgment may be affected by the lawyer's beneficiary status, the lawyer needs the personal representative's informed consent confirmed in writing under RPC 1.7(a)(2).
Q: Can I serve as the personal representative myself if I am a beneficiary?
A: That is within the probate court's discretion. The opinion concludes RPC 1.7 would not apply because the lawyer would be acting pro se, but the lawyer must ensure the probate court is fully informed in making the appointment.
Background and rules framework
The opinion interprets Oregon RPC 1.8(c) (gifts from clients; related-person exception), corresponding to Model Rule 1.8(c); Oregon RPC 1.7(a)(2) and (b) (current-client and personal-interest conflicts; informed consent), corresponding to Model Rule 1.7; and Oregon RPC 1.0(b) and (g) (defining "confirmed in writing" and "informed consent"), corresponding to Model Rule 1.0.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.8(c) / Model Rule 1.8(c) (substantial gifts; related-person exception)
- Oregon RPC 1.7(a)(2), 1.7(b) / Model Rule 1.7 (current-client and personal-interest conflicts)
- Oregon RPC 1.0(b), 1.0(g) / Model Rule 1.0 (defined terms)
Cases:
- In re Tonkon, 292 Or 660, 642 P2d 660 (1982)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-62 (lawyer for fiduciary; identity of the client)
- OSB Formal Ethics Op. No. 2005-119 (duties owed to nonclient beneficiaries)
See also
- OSB Ethics Op. 2021-197: Payment to Lawyer from Estate Assets
- OSB Ethics Op. 2005-43: Preserving Wills for a Missing Client
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-93.pdf
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