Can a lawyer drafting a client's will insert a provision naming himself as counsel for the estate?

Plain-English summary

The inquiry asked whether attorney "A," drafting a will for "B," violates the Canons by including a provision that "B" desires "A" to be engaged as attorney for the estate, across three situations: in any case; where the testator does not specifically request the provision but understands it and makes no objection; and where the testator is aware of the provision but does not fully understand its consequences and does not object.

The Committee concluded the insertion would not violate the Canons in every case (9-0). Drawing on its Opinion 152, it stated that if the testator requests the insertion of the provision without solicitation by the lawyer, the insertion is ethical. But where the attorney was not requested to insert the provision and did so anyway, and the testator was aware of it, understood it, and made no objection, the attorney's action amounted to solicitation of professional employment and was unethical (6-3). The same conclusion applied where the testator was aware of the provision but did not fully understand its consequences and made no objection (6-3).

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. 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 Treat this page as historical context, not current guidance.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: Can a lawyer name himself as estate counsel in a will he is drafting?

A: The Committee concluded he may if the testator requests the provision without the lawyer's solicitation; inserting it unrequested amounts to solicitation of professional employment and is improper under Canon 24.

Q: Does it cure the problem if the testator sees the provision and does not object?

A: No. The Committee concluded that where the lawyer inserted the provision unrequested, his action was solicitation and was unethical even though the testator was aware of it and made no objection (6-3).

Q: What if the testator did not fully understand the provision?

A: The Committee reached the same conclusion: the unrequested insertion amounted to solicitation of professional employment and was unethical (6-3).

Background and rules framework

The opinion interprets former Texas Canon 24, which barred solicitation of professional employment, as applied to a lawyer naming himself estate counsel in a will he drafts. The modern analog is ABA Model Rule 7.3 (solicitation of clients), which restricts a lawyer's solicitation of professional employment.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• Texas Canon 24 (former canon on solicitation)

Other opinions cited:

• Texas Opinion 152

See also

• TX Ethics Op. 182: Lawyer as Executor and Estate Fees
• TX Ethics Op. 196: Solicitation and "Feeding" of Law Business
• TX Ethics Op. 181: Soliciting Docket-Call Work From Other Lawyers

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-171/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_171.pdf

Original opinion text

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

QUESTION PRESENTED

"A," an attorney, drafts a will for "B" at "B's" request and includes the following provision therein:

"It is my will and desire that 'A' be engaged as attorney for my estate and that he handle all legal matters pertaining thereto."

Is the above action by attorney "A" in violation of the Canons of Ethics in the following cases:
In any case;
Where the testator "B" does not specifically request the provision, but understands it and makes no objection;
Where the testator "B" is aware of the provision, but does not fully understand the consequences thereof, and does not object?

18 Baylor L. Rev. 270 (1966)

SOLICITATION OF BUSINESS - WILLS
For an attorney preparing a will to insert a provision to the effect that the testator desires the attorney to act as counsel for the estate when the testator has not requested the insertion is improper.

Canon 24.

The insertion of the provision would not violate the Canons of Ethics in every case. As Opinion No. 152 of this committee states, if the testator requests the insertion of the provision, without solicitation by the lawyer, then such insertion is ethical on the part of the attorney. (9-0)
If the attorney was not requested to insert the provision in the will, but nevertheless did so, and the testator was aware of this, understands it and makes no objection, the action of the attorney amounted to the solicitation of professional employment and was unethical. See Opinion No. 152 of this committee. (6-3)
If the attorney was not requested to insert the provision in the will, but nevertheless did so, and the testator was aware of this, not fully understanding the consequences thereof, but made no objection thereto, the action of the attorney amounted to the solicitation of professional employment and was unethical. See Opinion No. 152 of this committee. (6-3)

Tex. Comm. On Professional Ethics, Op. 171 (1958)