Ethics Opinion 140

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #140 – 05/28/197

0 (18-70)
Topic: Wills; Draftsman as attorney for estate
Digest: Care should be taken to avoid appearance of impropriety in providing that draftsman be employed as attorney for estate
Code: EC 5-6

QUESTION

May a lawyer insert a provision in a will that the executor employ the lawyer as attorney for the estate?

OPINION

EC 5 – 6 provides:”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.”The answer to the question depends on the surrounding circumstances. If they are such that the lawyer might reasonably be accused of using undue influence, the provision should be avoided.Where there is no indication of overreaching and the suggestion originates with the testator, there is no objection to such provision provided it be clearly explained to the testator that the provision will not be binding upon the executor who will be free to choose his own attorney since a lawyer has no vested interest in representing the estate of one whose will he has drawn. A testator may reasonably believe that it is to the distinct advantage of his estate to have the benefits of his attorney’s intimate knowledge of his affairs. It would seem more appropriate to have the will contain a recommendation to the executors with the testator’s reasons therefore, rather than a direction.The lawyer, however, may not properly have the executors named in the will execute a retainer agreement with him prior to the testator’s death. Drinker, Legal Ethics 94 (1953); N.Y. City 580 (1941).In cases where there is a possible appearance of impropriety, the lawyer should consider having the testator submit the will to another lawyer for review prior to its execution. See Drinker, Legal Ethics. 94 (1953).In the opinion of the Committee the customary and regular inclusion of provisions in wills providing for retention of the services of the attorney drawing the will, without the specific request or suggestion of the client, is improper. ABA Inf. 602 (1963).

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