Can a lawyer draft a long-time client's will and trust that names the lawyer's own firm as executor, co-trustee, and counsel for the estate?

Plain-English summary

Opinion E-75-3 addressed a client, Mr. X, who had a 25-year friendship with Attorney Y and whose family the firm had long represented. Mr. X asked Attorney Y to design his estate plan (an inter vivos revocable trust funded by his insurance and a pour-over will), to draft all the documents, to serve as co-trustee, and to have the firm act as counsel for both the trust and the estate. Mr. X argued that hiring another lawyer to draft would be a sham, since he would execute nothing without Attorney Y's approval. The question was how far Attorney Y could comply.

The committee said the primary considerations rested with Canon 2 and DR 2-103, Ethical Consideration 5-6, and the Wisconsin Supreme Court's interpretation in State v. Gulbankian, 54 Wis. 2d 605 (1972). It concluded the situation clearly fit the passage in Gulbankian providing that, in the rare cases where a client, because of the attorney's unusual familiarity with the testator's business or family problems or a relationship transcending the ordinary client-attorney relationship, asks the attorney to act as executor or to provide for his employment to probate the estate, there is no solicitation. On those facts, the proposed drafting of the will and trusts would not violate the Code or the Disciplinary Rules.

The committee urged that the work be done so as to avoid even the appearance of impropriety, suggesting careful drafting language in the will and trust agreement, retaining a copy of the opinion in the client's file, and obtaining a letter from the client in his own handwriting confirming the facts.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canon 2, DR 2-103, and EC 5-6 as interpreted in State v. Gulbankian. The current counterparts include SCR 20:1.8 / Model Rule 1.8 (conflicts, including a lawyer drafting an instrument that names the lawyer to a fiduciary role) and SCR 20:7.3 / Model Rule 7.3 (solicitation). 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 Treat this page as historical context, not current guidance.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 who drafts a client's will name his own firm as executor and counsel?

A: Under this opinion, yes on these facts. The committee found that where the client, because of the attorney's exceptional familiarity with his affairs, asks the attorney to serve and to draft the documents, the Gulbankian exception applies and there is no improper solicitation.

Q: What made this situation an exception rather than self-dealing?

A: The committee relied on the Gulbankian passage that there is "no solicitation" when a client, because of an unusual familiarity or a relationship transcending the ordinary client-attorney relationship, asks the attorney to act as executor or to provide for the attorney's employment to probate the estate.

Q: Did the committee suggest any precautions?

A: Yes. It urged avoiding even the appearance of impropriety through careful drafting language, keeping a copy of the opinion in the client's file, and obtaining a handwritten letter from the client confirming the facts.

Background and rules framework

The opinion applied the former Code's Canon 2, DR 2-103, and EC 5-6, as construed by the Wisconsin Supreme Court in State v. Gulbankian, to an attorney drafting estate documents that named his firm to fiduciary and counsel roles. The current counterparts include SCR 20:1.8 / Model Rule 1.8 (conflicts) and SCR 20:7.3 / Model Rule 7.3 (solicitation).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / SCR 20:1.8 (conflicts of interest; lawyer's interest in client transactions and fiduciary appointments)
• Model Rule 7.3 / SCR 20:7.3 (solicitation); former Code Canon 2, DR 2-103, EC 5-6

Cases:

• State v. Gulbankian, 54 Wis. 2d 605 (1972), no solicitation where a client asks his attorney to act as executor

See also

• WI Ethics Op. E-80-1: Drafting a Will for a Partner's Spouse
• WI Ethics Op. E-79-4: Bank Referral of Estate-Planning Customers

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-3.pdf