MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-08
May an attorney who chairs his church’s legacy committee, prepare, on a pro bono basis, wills for parishioners in the which the parishioners bequeath property to the church?
You chair a church committee that promotes legacy giving from its parishioners ( i.e., bequests in wills, charitable trusts, charitable annuities, etc.) ( the “Legacy Committee”). As chair, you “explain the program” to parishioners. You wish to volunteer your services to prepare simple wills or codicils, advance directives and power of attorneys for unrepresented parishioners.
You would receive no compensation for such services from either the church or its parishioners. You have asked whether there are any conflicts of interest or other ethical considerations implicated by your proposed conduct.
Rule 1.7 of the Maryland Lawyers’ Rules of Professional Conduct addresses conflicts of interest generally. In this context, the first issues presented by your inquiry are: “What duties are owed to your church?” and “Who is your client?”
It is unclear whether you chairmanship of the Legacy Committee necessarily encompasses the rendition of legal services to the church or the Legacy Committee. The Ethics Committee cannot, therefore, definitively determine whether the church might be your client.
While the Committee cannot conclude from the facts presented that the church is your client, the Committee does believe that those parishioners whom you might counsel would be. If the church were also your client, Rule 1.7(a) imposes restrictions upon the circumstances in which a lawyer may represent one client when such representation may be directly adverse to another client.
To the extent your role might be in the nature of an intermediary between clients, Rule 2.2 imposes similar consultation and consent requirements.
However, even if the church is not your client, the Committee believes that in your role as a member and chair of the church’s Legacy Committee you would have fiduciary and/or other duties to the church. Rule 1.7(b) provides that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities … to a third person, or by the lawyer’s own interests, unless … the lawyer reasonably believes the representation will not be adversely affected; and … the client consents after consultation.”
The Committee believes that your role as Legacy Committee chair and/or your own interests in advancing the church’s financial interests would be the sorts of responsibilities to a third person and/or personal interest that are governed by Rule 1.7(b).
Under Rule 1.7(b), in order to represent your fellow parishioners, you would have to reasonably believe that your representation of such parishioners would not be “adversely affected” by your responsibilities to your church or your own interests before obtaining a parishioner’s consent to such representation. It is the consensus of the Committee, which correlates to the hypothetical “disinterested attorney” referred to in the comments to Rule 1.7, that such a belief would not be reasonable, and that consequently you cannot simultaneously serve as a member of the Legacy Committee and represent parishioners in connection with their estate planning when they may contemplate a gift or bequest to the church.
The Committee’s opinion in this regard is based upon Rule 2.1, which provides that “[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” Similarly, Rule 5.4(c) provides that “[a] lawyer shall not permit a person who recommends … the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
The Committee believes that your laudable interest in advancing your church’s interests would inevitably compromise your independent professional judgment in advising parishioners regarding whether their own interests will be served by such giving in general or by bequests to your church in particular, as issues regarding the nature, magnitude and timing of parishioners’ giving might be affected by considerations relating to your church’s financial needs. The Committee also has reservations regarding whether parishioners would be sophisticated enough to weigh the risks involved in order to knowingly consent to your representation.
Consequently, it is the Committee’s opinion that the conflict posed by virtue of your membership on the Legacy Committee will not be able to be addressed by the consultation and consent requirements or Rule 1.7(b) (2) and (c) (and/or Rule 2.2) and that to advise parishioners as you propose, you would have to resign from the Legacy Committee.
We hope that this opinion is of assistance.
REFERENCES: Maryland Lawyers’ Rules of Professional Conduct, Rules 1.7(a), 1.7(b), 1.7(c), 2.1, 2.2, and 5.4(c)