[WSBAPT] Attorney as Alternate PR?

Mon Apr 13 14:11:04 PDT 2020

I’ve always followed Advisory Opinion 946 (formerly informal opinion 86-1) on this issue, available in Casemaker:

“2. Lawyer as Executor: The second issue, whether a lawyer may prepare a will which designates the lawyer as executor, presents different issues. The Rules of Professional Conduct do not specifically address this issue. Under the former Code of Professional Responsibility, Ethical Consideration 5.6 provided: "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." While this ethical consideration was not carried over to the Rules of Professional Conduct in express terms, the Committee believes it constitutes a sound and workable guideline for lawyers to follow in situations where their clients wish them to act as executors. The Committee does not believe the Rules of Professional Conduct prohibit a lawyer from preparing a will in which the lawyer is named as executor where that designation is at the express wish of the client after the client has been fully informed by the lawyer as to the duties and obligations of an executor and of the costs likely to ensue. While the Committee believes that the designation of a lawyer as executor in a will does not create a business relationship between the lawyer and the client, the considerations expressed in RPC 1.8(a) provide a useful guideline to a lawyer to designate himself or herself as executor. The lawyer should disclose to the client the duties and obligations of an executor, the fees which the lawyer will charge for performing those services, the fees alternative executors would probably charge, and should advise the client that he or she is free to seek the advice of independent counsel. This disclosure should be in writing to ensure that the client understands its significance and to establish conclusively that it occurred. As with the first issue, the literal language of Estate of Shaughnessy can be read to establish a per se prohibition against lawyers preparing wills in which they are named as executors regardless of the desires of their clients. This language is dictum, however, since the majority opinion specifically held that the Code of Professional Responsibility was not violated by the lawyer's actions. The Committee believes that both the majority and the dissenting opinions in the Estate of Shaughnessy must be read in light of the facts of the case presented to the court. In addition to the presence of substantial bequests to the lawyer, there is no indication that the lawyer fully advised the client nor that the client affirmatively decided that the lawyer should be the executor after being so advised. The Committee does not believe the Supreme Court intended to prevent a lawyer from preparing a will in which the lawyer is named as executor in situations where the client is fully advised and affirmatively desires the lawyer to so serve. While undoubtedly it is the better practice for a lawyer not to be named as executor in a will which the lawyer prepares and such a course would preclude any questions arising later, the Committee believes that the ultimate decision is the client's. If the client, after full disclosure, desires the lawyer to act as executor, a lawyer has no professional obligation to refuse to do so. We do not believe the Supreme Court would prohibit a fully informed client from choosing to have his or her lawyer both prepare the client's will and serve as executor of the estate.”

https://www.casemakerlegal.com/docView.aspx?DocId=15077 <https://www.casemakerlegal.com/docView.aspx?DocId=15077&Index=D%3a%5cdtsearch%5cIndex%5c01Test%5cALL%5fEO&HitCount=3&hits=58+59+7a2+&isFirstPass=&categoryAlias=Ethics%20Opinions&fCount=5&cf=4&dt=EO&jurisdictions.allFederal=False&jurisdictions.allStates=False&searchType=BROWSE&bReqSt=WA&dataT=EO> &Index=D%3a%5cdtsearch%5cIndex%5c01Test%5cALL%5fEO&HitCount=3&hits=58+59+7a2+&isFirstPass=&categoryAlias=Ethics%20Opinions&fCount=5&cf=4&dt=EO&jurisdictions.allFederal=False&jurisdictions.allStates=False&searchType=BROWSE&bReqSt=WA&dataT=EO

John J. Sullivan

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Candace Wilkerson
Sent: Monday, April 13, 2020 12:56 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Attorney as Alternate PR?

I have been asked before, and I always said no because it sounded like a conflict of interest.  However, I never researched it, so I’d be interested in hearing from someone else as well.

Candace

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Inge Fordham
Sent: Monday, April 13, 2020 12:31 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] Attorney as Alternate PR?

Listmates,

Client has a question as to whether an attorney may be listed as the alternate personal representative in her will.  I’ve never run into this question.  Off the top of my head, I don’t see a problem with it.  Is there a prohibition I’m not aware of?

Thanks in advance,

Inge A. Fordham | Attorney

Fordham Law, PLLC

3218 Sixth Avenue | Tacoma, WA 98406

Office: (253) 348-2657 | Mobile: (206) 778-3131

www.fordhamlegal.com <http://www.fordhamlegal.com>  

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