MORE THAN YOU BARGAINED FOR: POTENTIAL ETHICAL VIOLATIONS FOR SOLICITING GIFTS OR ADDITIONAL BUSINESS FROM CLIENTS

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Authors: Erin K. Higgins and Conor Slattery of Conn Kavanaugh

Estate planning attorneys strive to provide their clients with excellent service, and hope their good work will be rewarded with additional business from the client and the client’s network.  However, an estate planning attorney should ensure that the client is freely requesting those additional services, and they are not a result of any unethical solicitation by the attorney.  Additionally, an estate planning attorney should never solicit a gift from an estate planning client who is not a close family relative.

An estate planning attorney must not encourage a client to take actions that will result in additional business and the generation of substantial legal fees for the attorney, such as designating the estate planning attorney as the personal representative, trustee, or other fiduciary.  Such actions may amount to unethical solicitation.  An attorney should only agree to serve as a fiduciary at the direct request of the client.  If an attorney is designated as a fiduciary at the client’s request, the attorney may not charge his or her legal rates for purely administrative work or other non-legal work performed.  Rather, the attorney must charge a rate in line with the fair market rate for non-lawyers performing the same tasks, or face disciplinary action as happened in Matter of Chignola, 25 Mass. Att’y Disc. R. 112 (2009).  Similarly, an attorney should only safeguard a client’s will at the client’s direct request, not at the attorney’s suggestion, as the retention of a client’s will may lead to additional work for the drafting attorney if the client decides to revise his or her estate plan.  Where a client is unfamiliar with the options for safekeeping of estate planning documents, however, an attorney can provide the client with a list of options that may include the attorney’s firm holding the original documents. 

Additionally, pursuant to Rule of Professional Conduct 1.8(c) a lawyer shall not solicit any substantial gift, including a testamentary gift, from a client, or prepare an instrument for a client giving the lawyer a gift, unless the lawyer is closely related to the client.  For the purposes of Rule 1.8(c), a person is “closely related” to another person if related to such other person as sibling, spouse, child, grandchild, parent, or grandparent, or as the spouse of any such person.  To avoid violating Rule 1.8(c), an estate planning attorney should not draft any estate planning document naming the attorney as a beneficiary absent such a close relation to the client.  The Massachusetts Bar Association in Ethics Opinion No. 82-8 made it clear that the acceptance of any gift from the client will leave the attorney exposed to a possible charge of undue influence.  An estate planning attorney should insist that another practitioner draft any document naming the attorney as a beneficiary. 

Knowing when to step back from estate planning work out of a concern for unethical solicitation ultimately will save an attorney from much heartache down the road.  A lawyer who has questions about when he or she must step aside should seek advice from ethics counsel on the appropriate course of action.