Ethics Hotline & Opinions

Ethics Docket No. 1995-02

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1995-02

ETHICS DOCKET 95-2 Wills – Potential conflict of interest when attorney who drafts will is appointed as successor trustee and will includes provision requiring executor to hire same attorney to probate and administer estate

Your inquiry describes the following factual scenario: The Executor named in his deceased mother's Last Will and Testament (the ""Will"") contacted your firm in connection with hiring an attorney to represent him in administering the decedent's estate. In reviewing the Will, you discovered that the attorney who drafted the Will (""Attorney A"") was named in the Will as a Substitute Trustee under certain trusts created in the Will and the Will directed that Attorney A be employed ""for legal advice and assistance in probating and carrying out the provisions of this Will and in administering the trusts"" created. You ask what ethical considerations are involved.

The Committee has adopted a policy that precludes us from directly answering your question. Specifically, the policy prohibits the Committee from issuing opinions on ""questions of law, or on issues which are likely to be decided by a court or other tribunal in actual or threatened litigation, or pertaining to past conduct which may become the subject of disciplinary proceedings or litigation.""

The Committee does not believe your firm is ethically prohibited from representing the Executor; whether you can do so in disregard of the direction in the Will is a legal question to be decided by the Courts.

If the Committee can assume you are asking if an attorney who prepares a Will for a client may nominate the attorney's firm or the attorney to take on various functions that arise from preparing the Will or in administering the estate, the Committee concludes that an attorney is not per se precluded from accepting these appointments, provided the lawyer complies with Rule 1.7 of the Rules of Professional Conduct.

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.