OPINION 152
June 1957

FRAUDULENT PRACTICES--WILLS- To insert in a will without the testator’s knowledge or consent, that upon his death the firm of which the attorney preparing the will was a member should represent the estate is fraudulent and dishonorable with the meaning of Section 8 of Article XII of the Amendments to the Rules of the State Bar of Texas.

 State Bar Rules, Sec. 8, Art. XII.

Question

Is it a violation of the Canons of Ethics for an attorney to insert a provision in a will that upon the death of the testator the firm of which the attorney preparing the will was a member should probate the will and otherwise represent the estate, where the client did not request such provision and did not know of its existence until he discovered it upon examining a copy of the will several months after its execution?

Opinion

All members of the committee agree that the insertion of such a provision in a will at the request of the testator is perfectly proper and is not unethical in any respect. Opinion No.71 of the Texas Ethics Committee is cited in support.

All members agree that their opinion is definitely predicated upon the fact that the testator neither requested nor knew of such provision being in the will. One member particularly finds it difficult to understand how such provision could be in the will without the testator knowing about it since it would be assumed the testator was of sound mind and that he read the will, or had it read to him, before signing it.

All members agree that if the attorney inserted such provision in the will, without it being requested by the testator and without the testator's knowledge, that such action was not only unethical but that it was dishonorable and fraudulent. It was also characterized as "reprehensible and despicable" and as "criminal." One member is of the opinion that Canon 24 was violated as being a solicitation, but none of the other members were able to point to any specific Texas Canon as being violated. However, it was pointed out that Canon 2 provides that the Texas Code of Ethics is cumulative of all laws of Texas relating to the professional conduct of lawyers in the practice of law, and that Section 8 of Article XII of the Rules of State Bar of Texas defines professional misconduct as including any fraudulent or dishonorable conduct. (8-0) (See Opinion 171 also)