In ancient times under Roman law a legacy to one who drew the will was invalid. Under American law such a legacy is not necessarily void but usually gives rise to an inference of undue influence.1 Similarly, attorney discipline under American Law for drafting such a bequest has depended on the circumstances.2
Attorneys who regularly draft estate planning documents generally know that drafting a will for a client providing a substantial gift to the attorney should be avoided. Under the former Code of Professional Responsibility, Ethical Consideration 5-5 provided that “…other than in exceptional circumstances, a lawyer should insist that an instrument in which the client desires to name the lawyer beneficially be prepared by another lawyer selected by the client.” However, ethical considerations under the former Code of Professional Responsibility were considered advisory and were generally thought to be aspirational.3 Very rarely was an attorney disciplined for drafting such an instrument under the Code of Professional Responsibility or the prior Canons of Ethics.
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