UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-21
At the direction of a client, an attorney prepares a Will naming himself as Executor and Trustee.
Question:
Is it ethical for the attorney to take a Trustee's commission and an Executor's commission?
Opinion:
The question presented does not directly involve a matter of professional ethics that is addressed by the Rules of Professional Conduct. An attorney would be entitled to take a Trustee's commission and an Executor's commission under the same circumstances that a non-attorney would be entitled to take such a double commission. Although there is little case law in South Carolina addressing the question of when one may take a Trustee's commission and Executor's commission, there is substantial law in other jurisdictions. See, e.g., In Re Norris' Estate, 153 S.C. 203, 150 S.E. 693 (1929). In the event the method of determining commissions is set forth in the Will, the method should be one that is reasonable and customary for all Executors and Trustee so as not to be construed as violative of Rule 1.8 (c). The facts of the Question are so limited that it is difficult to determine precisely what is requested of the Committee. This opinion does not address the situation where the attorney who prepared the document naming himself as Trustee and Executor is also asked to be or retained as the attorney for the estate or any of the beneficiaries of the estate. See, e.g., In the matter of Richard W. James, 229 S.E.2d 594 (1976).