The attorney-client relationship is one example of a well-recognized confidential relationship. Under some circumstances such relationship would be fatal to an instrument leaving the attorney a bequest. Maryland Lawyer’s Rules of Professional Conduct Rule 1.8(c) instructs that: “[a] lawyer shall not solicit… a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client…” Even when the lawyer is related to the testator it may be bad practice to prepare the instrument if the lawyer or the lawyer’s branch of the family is being favored as against other members of the family or branches of the family. See e.g., Lipper v. Weslow, 369 S.W.2d 698 (Tex. App. 1963) (indicating that the issue of undue influence would have been moot had the testatrix used an independent attorney to prepare her will).
The American College of Trust and Estate Counsel’s commentary to MRPC Rule 1.8(c) pointedly states that: “the lawyer should exercise special care if a relative of either the lawyer or the lawyer’s spouse proposes to make a gift that is disproportionally large in relation to gifts that the relative proposes to make to others who are equally related.” ACTEC Commentaries on the Model Rules of Professional Conduct MRPC 1.8 (2nd ed. 1999).
Rule 1.8(c) dictates an absolute prohibition on the lawyer preparing an instrument favoring the lawyer outside of the family setting. The ACTEC commentary makes a sensible extension of that prohibition: “[n]either the lawyer nor anyone associated with the lawyer should assist a client who is not closely related to the lawyer or to the lawyer’s spouse to make a substantial gift to the lawyer or to the lawyer’s spouse, children, parents or siblings.” ACTEC Commentaries, supra. Presumably, a lawyer would need to refrain from not only preparing the instrument but also assisting the client in arriving at the decision.
Numerous cases have supported disbarment or indefinite supervision of a lawyer drafting a will of a non-relative that names the lawyer or the lawyer’s family member as a legatee. Atty. Griev. v. Brooke, 374 Md. 155 (2003); Atty. Griev. v. Stein, 373 Md. 531 (2003). See also Atty. Griev. v. Saridakas, 402 Md. 413 (2007), where having the will passed by the lawyer’s office space sharer did not save sanctions from being imposed. A dissent by Wilner and Greene questioned why someone merely sharing space is not an independent attorney.
At least one court has extended the ethical rule to cover non-lawyers acting in the role of a lawyer. In Re Estate of Marks, 957 P.2nd 235 (Wash. Ct. App. 1998), was an appeal on an undue influence case where no undue influence was found by the trial court. In that case, the testatrix had been hospitalized and was assisted by a friend who was closely involved with a church. The testatrix was scheduled for surgery and, reportedly, stated that she wanted to make sure that she had her affairs in order beforehand. A friend secured a will kit at Office Depot, read the instructions to the testatrix, and helped her complete the will.
The will at issue left part of the estate to the friend and a large amount to the friend’s church. Although in Marks it was held that undue influence could not be shown,[1] the court found that the will was the product of the unauthorized practice of law and therefore those provisions benefiting the friend were set aside. Ultimately the court decided that “the rules regulating the conduct of lawyers are applicable to lay people who engage in the practice of law.” Id. at 241.
