A lawyer is hired by a client to draft a will. The client insists on including a provision that leaves a substantial bequest to the lawyer, claiming it is a gesture of appreciation for prior legal services unrelated to the will drafting. The lawyer believes the client is competent and understands the implications of the bequest. What is the lawyer's ethical obligation regarding this bequest?
- AThe lawyer may accept the bequest, as long as the client is fully informed and competent.
- BThe lawyer should draft the will as instructed, but only if the bequest is modest and reasonable.
- CThe lawyer must advise the client to seek independent legal advice concerning the bequest.
- DThe lawyer must refuse to draft the will with such a provision, as it creates an impermissible conflict of interest.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer must advise the client to seek independent legal advice concerning the bequest.
Model Rule 1.8(c) prohibits a lawyer from soliciting any substantial gift from a client, or preparing an instrument giving the lawyer a substantial gift, unless the lawyer or other recipient of the gift is related to the client. If a client insists on a substantial gift, the lawyer must advise the client to seek independent legal advice from another lawyer concerning the gift, ensuring the client's decision is truly voluntary and informed, and not influenced by the lawyer's self-interest.
Why the other options are wrong
- A. Accepting a substantial bequest without independent counsel for the client is generally prohibited, even with client competence and information.
- B. The rule does not make an exception for 'modest' or 'reasonable' bequests when the lawyer is preparing the instrument; independent counsel is still required for substantial gifts.
- D. The lawyer is not required to refuse to draft the will entirely, but rather to ensure the client receives independent legal advice concerning the specific bequest to the lawyer.
Lawyer as Beneficiary (Substantial Gift)
A lawyer shall not solicit a substantial gift from a client or prepare an instrument giving the lawyer (or a person related to the lawyer) a substantial gift from a client, unless the lawyer or other recipient of the gift is related to the client. If a client insists on such a gift, the lawyer must advise the client to seek independent legal advice.
- Applies to 'substantial' gifts.
- Exception for family relationships.
- Independent legal advice is the key safeguard if the client insists.
Memory trick: Don't accept the 'Gift' if it 'Gifts' you a conflict.