OPINION 171
March 1958

SOLICITATION OF BUSINESS - WILLS - For an attorney preparing a will to insert a provision to the effect that the testator desires the attorney to act as counsel for the estate when the testator has not requested the insertion is improper.

Canon 24.

Question

"A," an attorney, drafts a will for "B" at "B’s" request and includes the following provision therein:

"It is my will and desire that "A" be engaged as attorney for my estate and that he handle all legal matters pertaining thereto."

Is the above action by attorney "A" in violation of the Canons of Ethics in the following cases:

1. In any case;

2. Where the testator "B" does not specifically request the provision, but understands it and makes no objection;

3. Where the testator "B" is aware of the provision, but does not fully understand the consequences thereof, and does not object?

Opinion

1. The insertion of the provision would not violate the Canons of Ethics in every case. As Opinion No.152 of this committee states, if the testator requests the insertion of the provision, without solicitation by the lawyer, then such insertion is ethical on the part of the attorney. (9-0)

2. If the attorney was not requested to insert the provision in the will, but nevertheless did so, and the testator was aware of this, understands it and makes no objection, the action of the attorney amounted to the solicitation of professional employment and was unethical. See Opinion No.152 of this committee. (6-3)

3. If the attorney was not requested to insert the provision in the will, but nevertheless did so, and the testator was aware of this, not fully understanding the consequences thereof, but made no objection thereto, the action of the attorney amounted to the solicitation of professional employment and was unethical. See Opinion No.152 of this committee. (6-3)