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 92-12
Client has nominal assets, but she owns her home. She has asked her attorney to revise her will. She feels that she has no relatives who are suitable to serve as the personal representative. She has suggested that the attorney serve as personal representative, and he is willing to serve in this capacity, but he would like to be paid for the work.
Question:
May the attorney draft a will in which he is named as the personal representative, given the power to sell the home and is instructed to pay himself at his regular hourly rate? If he may draft such a will, may he be a witness to its execution?
Summary:
The attorney may draft a will which names himself as personal representative. He may also be given the power to sell the home and to pay himself at his regular hourly rate. He should not, however, pay himself both the personal representative's statutory fees and the attorney's fees. Although the attorney would not be prohibited from witnessing the execution, he would be advised to secure independent witnesses.
Opinion:
In his statement of facts, the inquirer has anticipated the limitation against preparing an instrument giving himself a substantial gift, including a testamentary gift, from a client. (See Rule 1.8 (c).) Since the appointment of the personal representative is not a gift, the rules do not prohibit placing himself in a position of responsibility as personal representative.
The attorney should take particular care to make sure that all matters have been adequately explained to the client. This is especially important in a situation where the attorney wants to draw an instrument which gives himself powers as selling the home and paying himself a fee. Rule 1.4. (b) states "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to take informed decisions regarding the representation." The Comment goes on to explain that the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. In fulfilling his obligations of communication, the attorney should carefully consider any possibilities of a conflict of interest. The general rule dealing with conflicts of interest (Rule 1.7) points out in the Comment that conflict questions may arise in estate planning and estate administration. There is not a prohibition against an attorney serving both as personal representative and attorney. Yet the Comment points out that depending upon one's view, the client may be the fiduciary or the estate, including its beneficiaries. The lawyer is directed to make clear the relationship to the parties involved. Rule 1.7 (b) does state that a lawyer shall not represent the client if the representation of the client may be materially limited by the lawyer's own interests unless: 1) the lawyer reasonably believes the representation will not be adversely affected, and 2) the client consents after consultation.
Finally, Rule 1.2 deals with the scope of representation. Rule 1.2 (a) states that a lawyer shall abide by a client's decision concerning the objectives of representation. The Comment explains that an agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. "Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1." Rule 1.1. directs a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, fairness and preparation reasonably necessary for representation. It is logical, then, that if the attorney is required to use legal skills while serving as personal representative, then it is fair that he charges his normal rates.
The fees would be subject to Rule 1.5. This Rule dictates that a lawyer's fee shall be reasonable. If he is already charging his legal rate because of his providing legal services, then he would be precluded from adding on further statutory fees as the personal representative.