Legal Ethics Opinion #1534

Conflict of Interest - Personal Interest Affecting Representation
- Business Transactions With Client: Attorney Drafts Will for
Godmother and is Named Ultimate Beneficiary

You have presented a hypothetical situation in which an attorney
provided estate planning advice to her terminally ill godmother. 
In 1992, at godmother's request, the attorney drafted a will
which creates a residuary trust for the benefit of the
godmother's surviving spouse, who is the attorney's godfather. 
You state that the will requires the trustee to pay the net
income of the trust in quarterly, or more frequently,
installments to the surviving spouse for his lifetime.  You also
indicate that the will requires the trustee to pay the surviving
spouse so much, or all, of the principal of the trust as the
trustee, in the liberal exercise of discretion, considers
appropriate for the surviving spouse's support or health.

You state that the godmother requested that the attorney be named
as executor, trustee, and an ultimate beneficiary of any trust
proceeds remaining after the death of the surviving spouse. 
Further, attorney's sister, also a goddaughter of the godmother,
is also named as an ultimate beneficiary, the attorney and her
sister being the only named ultimate beneficiaries.

Finally, you indicate that the attorney and the godmother were
not blood relatives; however they maintained a mother/daughter-
like relationship for nearly thirty years and your facts indicate
that the godmother trusted the attorney completely.  Following
the godmother's death, the attorney/goddaughter began serving as
executor and trustee. 

You have asked the committee to opine whether, under the facts of
the inquiry, (1) the attorney's preparation of the will was a
violation of the Code of Professional Responsibility and, if so,
what remedial action may be taken by the attorney; and (2)
whether the attorney's service as trustee and/or executor is an
impermissible conflict of interest and, if so, what remedial
action may be taken by the attorney.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 5-101(A) which states that a lawyer shall
not accept employment if the exercise of his professional
judgment on behalf of his client may be affected by his own
financial, business, property, or personal interests, except with
the consent of his client after full and adequate disclosure
under the circumstances; and 5-104(B) which provides that a
lawyer shall not prepare an instrument giving the lawyer or a
member of the lawyer's family any gift from a client, including a
testamentary gift, except where the client is a relative of the

The committee has previously opined that it is improper for a
lawyer to prepare a will for a client naming the lawyer as a
beneficiary.  See LEO #1100.  The committee is of the opinion
that, as used within the relevant Disciplinary Rule, the term
"relative" does not include a godparent.  Thus, the committee
opines that the attorney's preparation of the godmother's will,
naming her and her sister as ultimate beneficiaries, was in
violation of that provision of the Code of Professional

As to whether any remedial action may now be taken by the
attorney, the committee is of the opinion that although the
testator's death may have rendered that question moot, the
necessity for any further action to correct the situation raises
a legal question beyond the purview of the committee.

Regarding your second question, the committee has recently
considered the propriety of an attorney/draftsman serving as an
executor/trustee.  See LEO #1515, formerly LEO #1358.  In that
Opinion, the committee concluded that the total lack of any pre-
existing lawyer/client relationship greatly enhances the
potential for a finding of undue influence in the instance in
which an attorney/draftsman also serves as executor or trustee. 
In the facts you present, the committee is of the opinion that it
was not per se improper, at the time of the will's drafting, for
the attorney/goddaughter to serve as executor or trustee,
provided consent was received from the testator/godmother/client
after full disclosure, as outlined in LEO #l5l5.  Thus, if
consent was received from the client at the time of the will's
drafting, after appropriate disclosure, it would not now be perse improper for the attorney to serve as executor or trustee.     
Committee Opinion
August 12, 1993