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Commonwealth of Massachusetts

April 2001

Where there's a will...

by Nancy Kaufman, First Assistant Bar Counsel

A lawyer may be the best friend a testator ever had. The lawyer may have helped the client's business to succeed, gotten the client out of a bad marriage, and helped protect the client's family's financial future. The lawyer's loyalty and legal advice may have been the only dependable things in the client's life. In the end, it may well be that the lawyer is the most deserving beneficiary of the client's estate. But the lawyer who writes a will for a non-relative that leaves a substantial bequest to himself or to his family members is engaged in a prohibited conflict of interest.

Substantial bequests to beneficiaries who occupied a fiduciary relationship with a testator have long been viewed with suspicion because of the possibility of undue influence. In Mooney v. McKenzie, 324 Mass. 685 (1949), a lawyer drew a will for a 93-year-old woman that left the bulk of her estate to the lawyer to dispose of as he saw fit without any need to account. The probate court refused to order a jury trial, being "'unable to find that there is any undue influence….'" The Supreme Judicial Court reversed, holding that such transactions must receive the "'jealous scrutiny to which the law has thought it wise to subject transactions of this kind….'"

Prior to February 1995, there was no disciplinary rule specifically prohibiting a lawyer from drafting an instrument that gave the lawyer or his family a substantial gift. The conflict of interest arising from such representation was treated under former Canon Five, Disciplinary Rule 5-101(A), which prohibited lawyers from accepting employment if the lawyer's professional judgment on behalf of the client would or reasonably might have been affected by her own financial or personal interests unless she had obtained the client's informed consent. Ethical Consideration 5-5 specifically advised that, "[o]ther than in exceptional circumstances, a lawyer should insist that an instrument in which the client desires to name him beneficially be prepared by another lawyer selected by the client."

Lawyers who assisted such gift-giving to themselves or their relatives before February 1, 1995, have been disciplined for violating DR 5-101(A). In Matter of Dionisi, 9 Mass. Att'y Disc. R. 99 (1993), a lawyer was publicly censured for creating a real estate trust that conveyed to the lawyer's mother the home of a client without taking proper steps to protect the client's life estate and financial interest in the home. The client had a long-term friendship with the lawyer's parents and was not ultimately harmed by the lawyer's neglect. Another lawyer was recently admonished for violating DR 5-101 by drafting a trust amendment in 1991 that permitted the lawyer to obtain title to the client's house after her death without advising the client that his own interest in the trust might have affected his advice to her and without telling her to seek the advice of counsel independent of the transaction. Adm. 01-07.

Disciplinary Rule 5-101 did not absolutely prohibit a lawyer from drafting such an instrument. On February 1, 1995, however, the Supreme Judicial Court adopted DR 5-108, which barred lawyers outright from preparing an instrument "giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee." The Massachusetts Rules of Professional Conduct, which took effect on January 1, 1998, continue this same absolute prohibition in Mass. R. Prof. C. 1.8(c).

A lawyer who drafts a will (or any instrument) naming him or her as a beneficiary of a substantial bequest (or gift) is involved in a "facial and obvious conflict of interest…" regardless of the lawyer's intent and regardless of the consent of the client, unless the lawyer is related to the donee. In re Gillingham, 896 P.2d. 656, 663 (Wash. 1995). Even if the lawyer is related to the testator, caution is advised. A lawyer who receives a disproportionate amount of an estate by an instrument that she prepared for a relative should be prepared to bear the burden of proving to a tribunal, if there is a contest, that the gift was not the product of overreaching.

A lawyer who is contemplating a substantial gift from a client other than by an instrument should also exercise caution. Comment [2] to Mass. R. Prof. C. 1.8 advises that any gift to a lawyer must meet "general standards of fairness." Comment a to § 127 of the Restatement (Third) of the Law Governing Lawyers (2000) advises that "[t]he law of undue influence treats client gifts as presumptively fraudulent, so that the lawyer-donee bears a heavy burden of persuasion that the gift is fair and not the product of overreaching or otherwise an imposition on the client."

So what is the lawyer confronted by a grateful client to do when the client presses a gift on either the lawyer or the lawyer's relatives? If the gift is in any way substantial, the lawyer must tell the client to choose another lawyer not associated in any capacity with or related to the prospective donee to handle the transfer. In evaluating whether or not a gift is "substantial," the lawyer has to evaluate the size of the gift in relation to the client's assets as well as the lawyer's own assets. Comment f to § 127 of the Restatement of the Law of Lawyers observes that a gift of $1,000 might be insubstantial to a wealthy client but "substantial in relation to the lawyer's assets" and therefore suggestive of overreaching.

It is also essential that the client exercise his or her own judgment in choosing another lawyer to handle the gift transaction without any advice or suggestions from the donee. In sum, where there's a will, get out of the way.

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© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.