Ethics Opinions

Opinion 06-01

Summary:  While there is no outright bar to Massachusetts lawyers’ drafting wills naming themselves as fiduciaries and, as such, retaining themselves as counsel to the fiduciaries, ethical rules require that these steps be taken only when in a client’s best interests.

Facts:  A lawyer asks whether she can draft a client’s will that names the lawyer as executrix and whether as executrix she can retain herself as counsel.

Discussion Mass. R. Prof. C. 2.1 requires that a lawyer in advising a client, including in advising an estate planning client with regard to the selection of a fiduciary and counsel for the fiduciary, exercise independent professional judgment:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice….

Rule 1.7, the general rule on conflicts of interest, provides in pertinent part:

(b)  A lawyer shall not represent a client if the representation of that client may be materially limited… by the lawyer’s own interests, unless:

      (1)  the lawyer reasonably believes the representation will not be adversely affected; and

      (2)  the client consents after consultation….

Obviously, a lawyer’s interests in being named and getting fees as an executrix and as counsel to the executrix are personal interests of the lawyer’s that may, depending on the qualifications of the lawyer, not be in the best interest of the client.  The Supreme Court of Georgia, in Formal Advisory Opinion #91-1, has gone so far as prescribing the form of written consent that a client must sign before a lawyer drafting a will can be designated as executor or trustee under the will.  Among other things, the form recites that the decision to name the lawyer as fiduciary must originate with the client, lists family members, banks and others who might be alternatives to the lawyer as fiduciary, discusses conflicts that may arise between the lawyer as fiduciary and the lawyer as counsel to the fiduciary, and recites the need for the total fees in both capacities to be reasonable.

Massachusetts has no equivalent requirement, and lawyers under wills that they have drafted often serve as fiduciaries and counsel to fiduciaries.  The Supreme Judicial Court has held that there is no per se bar to a lawyer’s qualifying as executor under a will that he drafted.  McInerny v. Lally, 384 Mass 810 (1981) (rescript opinion remanding case to probate court to allow objector to present additional evidence including that pertaining to suspended lawyer’s ethical problems).  Nevertheless, it is important that the lawyer consider carefully with the client if

 

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2006 Opinions continued

 

alternative fiduciaries might be better equipped to handle the estate, whether because of the nature of the assets involved, the personal experience of the lawyer, or other reasons.  If the lawyer represents, in addition to the testator, members of the testator’s family who may benefit from the estate, the lawyer should discuss this with the testator, provided that the representation of the family member is not in itself a confidence that should not be disclosed to the testator.  If such were the case, in some circumstances the lawyer might have to refrain from acting as executrix or counsel to the executrix.  The lawyer should also discuss the intended methods of calculating fees as fiduciary and as counsel and that the probate court would review total fees for reasonableness. 

The Georgia form also recites that the lawyer has provided the client with an opportunity to seek independent legal counsel on the selection of fiduciary and counsel to the fiduciary.  Again, there is no requirement that this be done in Massachusetts, but the concerns motivating the Georgia court are present here too and require a lawyer to proceed in the client’s best interest in naming fiduciaries and their counsel.  Compare Mass. R. Prof. C. 1.8(a) (governing business transactions between client and lawyer).  While we do not believe that the requirements of rule 1.8(a) are directly applicable to the subject inquiry, comment 8 to rule 1.8 in the Model Rules of Professional Conduct, added in 2002 and not yet adopted in Massachusetts, though seemingly discussing rule 1.8(a) (gifts to lawyers), provides relevant guidance:

            This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary position.  Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer’s interest in obtaining the appointment will materially limit the lawyer’s independent professional judgment in advising the client concerning the choice of an executor or other fiduciary.  In obtaining the client’s informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.

Compare Cleary v. Cleary, 427 Mass. 286 (1998) (placing the burden to justify the transaction on a fiduciary who benefits from a transaction with a beneficiary).

 

 

 

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 19, 2006.

 

 

 

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