March 19, 2014 – This month’s Ethical Dilemmas question focuses on drafting a will.
For several years I have represented an elderly gentleman in his business and in his estate planning. He and his wife, who recently died, had no children. He has asked me to serve as the trustee of the trust for which I am drafting the documents. May I do so consistent with the Rules of Professional Conduct?
SCR 20:7.3(e) states that “a lawyer, at his or her instance, shall not draft legal documents, such as wills, trust instruments or contracts, which require or imply that the lawyer's services be used in relation to that document.” This rule makes clear that a lawyer cannot solicit either directly or by any indirect means a request or direction that the lawyer be named the trustee or personal representative, or be employed as the lawyer to probate the estate. Moreover, the Wisconsin Supreme Court concluded that it is both the solicitation and the appearance of solicitation that must be avoided.1
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Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel org tpierce wisbar Timothy Pierce and Assistant Ethics Counsel org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
Nevertheless, the court concluded that a lawyer may draft a will in which the lawyer is designated as the personal representative or which contains a direction to employ the lawyer to represent the personal representative if, in fact, that is the unprompted intent of the client.2 The court noted, however, that “the number of times this will occur will be few.”3
In determining whether the lawyer solicited an appointment as the trustee, personal representative, or lawyer employed to probate the estate, the court will consider three factors:
First, the court will consider whether there is a legitimate reason for the lawyer to be chosen over all other potential trustees, personal representatives, or lawyers employed to probate the estate. In other words, the court will consider whether the case is one of “those fairly rare cases” where the lawyer has unusual familiarity with the testator’s business or family problems or has a relationship that transcends the ordinary client-attorney relationship.4
Second, the court will consider whether there is a statement in the will or trust document stating that no solicitation occurred.5
Third, the court will consider the number of times the lawyer has drafted wills or trust instruments with these types of appointments.6
Because SCR 20:7.3(e) has no counterpart in the ABA Model Rules, Wisconsin lawyers should be aware that ABA Comment  to SCR 20:1.8 is inconsistent with SCR 20:7.3(e) and Wisconsin case law. ABA Comment  states that Model Rule 1.8 “does not prohibit a lawyer from seeking to have the lawyer or partner or associate of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary position.” This language is inconsistent with SCR 20:7.3(e), which prohibits a lawyer from soliciting such appointments. For this reason, ABA Comment  is inapplicable in Wisconsin.
Moreover, such appointments will be subject to the general conflict of interest provision in SCR 20:1.7 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.7 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.
1 Schmeling v. Devroy, 109 Wis. 2d 154, 161, 325 N.W.2d 345, 348 (1982) (citing Disciplinary Proceedings against Gulbankian, 54 Wis. 2d 605, 612, 196 N.W.2d 733, 737 (1972)).
2 Gulbankian, 54 Wis. 2d at 612, 196 N.W.2d at 737.
5 Devroy, 109 Wis. 2d at 161, 325 N.W.2d at 348.
7 Disciplinary Proceedings against Felli, 291 Wis. 2d 529, 564, 718 N.W.2d 70, 88 (2006).