Attorneys Who Include Bequests for Themselves

(Added 7/9/2012)

Q

We've recently learned that our organization is the residuary beneficiary of the estate of an individual who'd never married and had no children or other close relatives (and, for what it's worth, with whom we'd had no contact during his lifetime). The attorney who drafted the estate plan included rather sizeable pecuniary bequests for himself and for several of his family members - provisions that, even if the attorney/attorney's family were close to the decedent (and we do believe they were fast friends), violate the rules of professional conduct in our state. The standard remedy for this misconduct, however, is not to invalidate the improper bequests but to disbar the attorney. The dilemma for us, then, is whether to bring this misconduct to the court's or the state bar's attention, which in either case is unlikely to increase our share of the estate and perhaps could have a chilling effect on the strong relationships we enjoy with most attorneys in our close-knit community. We have confirmed with counsel that we're under no obligation to report the misconduct. And yet . . . well, to say nothing simply seems "wrong." I doubt we're the only organization that's encountered this situation!

A

You're not. What the attorney did, as you describe it, might have been clearly unethical - to the point that the action doesn't even qualify as a dilemma but deciding what you should do does qualify as a dilemma. One of the reasons we're concerned about doing the right thing and that others do the right thing is that future wrongs won't take place. In this case one goal in the equation would be to increase the charitable bequests, but that result, as you say, is unlikely. In your state, the "Rules for Professional Conduct for Attorneys" states that "A lawyer shall not solicit any substantial gift from a client, including a testamentary gift except where . . . the client is related to the donee . . . there is no reasonable ground to anticipate . . . a claim of undue influence or for the public to lose confidence in the integrity of the bar, and . . . the amount of the gift or bequest is reasonable and natural under the circumstances." It's frustrating when we have to rely on words like "substantial" and "reasonable" in legal language - that's where ethics comes in - but your description indicates the attorney failed in his obligations. This is why you feel his actions were wrong.

I understand that you don't want to upset the applecart with other attorneys. Besides, although you speak of the attorney and the deceased as "fast friends," you also admit that your charity and the deceased had no relationship at all; part of your reluctance to pursue this may be your own feelings that you have no business making waves. But bringing this issue to the attention of the bar association - and being clear that your motive is not to get more money (in fact, to prove it, I'd be clear that the organization would disclaim any additional money) would not be upsetting the applecart. It would be an act of following through on a legitimate concern. It might turn out that an investigation would show that nothing improper took place, and life would go on. That the concern is legitimate, and not a money grab, should alleviate any concerns that you might have about being a good citizen of the community. By bringing this matter to public attention, wouldn't you all of you in the state - be better off? Wouldn't that show attorneys that this kind of behavior is not to be tolerated? Of course your counsel will say that you have no obligation to report the matter - they're attorneys, after all - but this is where I distinguish between a legal and an ethical obligation. I note they don't say that you have an obligation not to report it. For what it's worth, I strongly feel that ethics-based decisions should not be made solely by attorneys.

As a legal matter, the bar association will do its work - even if it is to ignore the complaint - but as an ethical matter, as you feel so strongly that something is wrong, you have an obligation to at least ask the question before a group of people whose business it is to care.

Send us a Comment