Rutgers School of Law, OAL case acp487

108 N.J.L.J. 501
December 3, 1981

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 487

Attorney's Including
Person Gain in Client's Will

    The inquirer requests us to provide the ethical considerations surrounding the preparation and execution of a client's last will and testament under the following circumstances:
    (l) Where the scrivener, absent a request from the testator, includes a direction that the executor retain the services of the scrivener or his firm as attorney for the estate.
    (2) Where the scrivener is specifically directed by the testator to include such a provision.
    (3) Where the testator directs the scrivener to appoint himself as executor or trustee under his last will and testament.
    (4) Where the testator directs the scrivener to include a provision for a legacy for himself.
    Inquiry l. The suggested practice would clearly violate DR 2-103(A). The thrust of DR 2-103(A) is that professional employment must be initiated by the client. The inclusion of such designations as a matter of form in the preparation of wills is violative of DR 2-103(A). In State v. Gulbankian, 54 Wis.2d. 605, 196 N.W.2d. 733 (Sup. Ct. 1972), 57 A.L.R.3d. 696 (1974), the Wisconsin Supreme Court in concluding the conduct to be unethical, cites former Canon 11, existing DR 2-103(A) and the "appearance" of solicitation that results from such a systematic inclusion as the three reasons that such conduct should be frowned upon. Our Supreme Court in In re Honig, l0 N.J. 75 78 (1952), held:
    The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

Clearly, this proposition is still a viable ethical standard notwithstanding the fact that it was bottomed on former Canon ll, since replaced b y the Disciplinary Rules. See also ABA Comm. on Professional Ethics, Opinion 602 1963) We are of the opinion that such conduct is unethical.
    Inquiry 2. The inclusion of a mandatory designation of the scrivener as attorney for the executor at the insistence of the testator provides a more vexing problem. In his treatise on legal ethics, Henry S. Drinker handles the question thus:
    A question is sometimes raised as to the propriety of a lawyer's inserting in the will a legacy to himself, or a provision appointing him executor or trustee, or one directing his executors to employ him as counsel for the estate. This, of course, depends on the surrounding circumstances. If they are such that the lawyer might reasonably be accused of using undue influence, he will be wise to have the provision inserted in a codicil drawn by another lawyer. Where, however, a testator is entirely competent and the relation has been a longstanding one, and where the suggestion originates with testator, there is no necessity of having another lawyer in the case of a reasonable legacy, or of a provision appointing the draftsman executor, or of a direction that he be retained by the executors. In the case of the latter provision, it should be clearly explained to the testator that it will not be binding on the executor, who will be free to choose his own counsel, since a lawyer has no vested interest in representing the estate of one whose will he has drawn." Drinker, Legal Ethics 94 (1953) *** (footnote omitted)

This position of Drinker's may be followed provided the scrivener advises the executor or trustee upon the death of the testator that the mandatory nature of the appointment has no effect, and he is free to select counsel of his own choosing.
    Inquiry 3. The appointment of the attorney (scrivener) as executor or trustee can be handled somewhat more simply where it is the true desire of the testator. Again, where the provision in the will results from the systematic inclusion by the attorney of the clause without a specific request of the testator DR 2-103(A) is violated. This Committee feels that the Drinker position heretofore outlined may be followed; that is to say, where the testator is entirely competent and the relation has been a long-standing one and where the suggestion originates with the testator, there is no necessity for having another lawyer prepare the provision appointing the draftsman executor or trustee. It is advisable, however, that a memorandum of these facts be prepared and maintained by the scrivener.
    Inquiry 4. The legacy problem as outlined by Drinker, supra, depends upon the circumstances. However, lurking in the background of every legacy to the scrivener are the dangers of overreaching, abuse of the confidence reposed in him by his client, actual undue influence, and the presumption of undue influence created by the confidential relationship with the testator. At the very least, the "appearance" of these evils is present. The New Jersey Supreme Court in In re Davis, 14 N.J. 166, 171 (1953), stated as follows:
    We wish to reiterate what has been said repeatedly by our courts as to the proprieties of a situation where the testatrix wishes to make her attorney or a member of his immediate family a beneficiary under a will. Ordinary prudence requires that such a will be drawn by some other lawyer of the testatrix' own choosing, so that any suspicion of undue influence is thereby avoided. Such steps are in conformance with the spirit of Canons 6, ll, of the Canons of Professional Ethics promulgated by this court.

Subsequently, the New Jersey Supreme Court presented the problem

thus:

Our courts have on occasion said that where a testator wishes to name his attorney or a member of his attorney's family as a beneficiary, ordinary prudence requires that the will be drawn by some other lawyer of the testator's choosing, and thus to avoid the suspicion of an abuse of the confidential relationship. In re Nixon's Will, supra, Brogan, C.J.- In re Davis' Will, supra,- where

Mr. Justice Oliphant said: 'Such steps are in conformance with the spirit of Canons 6, 11 of the Canons of Professional Ethics promulgated by this court.' See also In re Putnam's Will, supra. Canon 11 declares that the lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.' It would seem to be equally imperative that the lawyer also avoid the suspicion of benefit or gain. By the civil law a will written by a person in favor of himself was void. Bennett v. Bennett, 50 N.J. Eq. 439, 446 (Prerog. 1892). This by an ordinance under Claudius, that the writer of another's will should not mark down a legacy for himself. 28 L.R.A., N.S. 272.

Clearly these admonitions from our Supreme Court spanning 27 years
dictate that the prudent practice under these circumstances is to
have the legacy created by independent counsel in a codicil or having independent counsel prepare the entire will. See also State v. Horan, 21 Wis 2d. 66, 123 N.W. 2d. 488 (Sup. Ct. 1963), and State Bar Association v. Behnke, 276 N.W. 2d. 838 (Sup. Ct. Iowa 1979); In re Gonyo, 73 Wis. 2d. 624, 245 N.W. 2d.. 893 (Sup. Ct. 1976), and cases collected in 98 ALR 2d. 1234 (1964).

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