Will drafting and serving as executor: is it ethical?
Susan comes to Lawyer’s office looking for help in establishing an estate plan. Lawyer agrees to draft her will and trust documents. But Susan also wants Lawyer to serve as the executor of her estate. Can Lawyer ethically serve as executor for his client?
Within the past months, a few lawyers have come to us with clients just like Susan. While this is a convenience for clients, there are certain things every lawyer needs to do in this scenario.
Will drafting and serving as an executor—Formal Advisory Opinion 91-1
The Georgia Supreme Court spoke on this issue back in 1991. In Formal Advisory Opinion 91-1, the Court said that while drafting and serving as trustee for a client’s estate does not necessarily create an appearance of impropriety or an ethical issue, such an arrangement creates a risk of appearing improper, which should be avoided if possible. The Court said the “risk of self-dealing . . . creates the need for restrictions that offer assurance that the naming of the lawyer as executor or trustee is the informed decision of the testator or settlor.”
A lawyer asked to serve as drafter and executor should give their client enough information to make an informed decision. Certainly, the lawyer should tell the client of the lawyer’s potential interest in the arrangement, including collection of executor fees. The lawyer should explain that those fees may be on top of any legal fees for drafting. The Court also advised that lawyers should explain:
- all potential choices of executor or trustee, their relative abilities, competence, safety and integrity, and their fee structure;
- the nature of the representation and service that will result if the client wishes to name the attorney as executor or trustee (i.e., what the exact role of the lawyer as fiduciary will be, what the lawyer’s fee structure will be as a lawyer/fiduciary, etc.);
- the potential for the attorney executor or trustee hiring him or herself or his or her firm to represent the estate or trust, and the fee arrangement anticipated; and
- the potential advantages to the client of seeking independent legal advice.
Informed consent—get it in writing
You can advise your client orally, but get the client’s consent in writing. The lawyer should also refrain from promoting himself or herself or consciously influencing the client in the decision. This also guards the lawyer against potential violations of Rule 1.8 of the Georgia Rules of Professional Conduct: “A lawyer shall . . . [not] knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless . . . the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”
A sample consent form, as well as the full text of the Formal Advisory Opinion, can be found here.