There's no direct prohibition, but a lawyer should not be named the executor of a client's will.

I represented my client for many, many years in business and personal matters. He has asked me to draft a will and he wants to name me as the executor. Can I ethically do this?

The best practice is not to name oneself as an executor. There is no direct prohibition under the Rules of Professional Conduct, but one could argue it could create a conflict of interest where perhaps the lawyer is placing their interest above the client's interest under Rule 1.7 of the Rules of Professional Conduct. But, if the client insists and there is full disclosure, it perhaps can be done. But, the fact it might be allowed does not mean it's a wise idea to do it.

Under Rule 1.8 of the Rules of Professional Conduct, a lawyer is prohibited for giving himself a testamentary gift in a will. There is no similar prohibition about the lawyer being named as an executor, although the better practice is not to. Comment 8 to Rule 1.8 is useful in evaluating this. The comment reads as follows: “This rule does not prohibit a lawyer from seeking to have the lawyer or a partner or an associate of the lawyer named as an executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provisions in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client's informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of all alternative candidates for the position.”

Therefore, if a client insists or requests or the lawyer suggests that the lawyer or someone in their firm be named as an executor or some sort of fiduciary, the lawyer has to get the client's informed consent in writing as required by Rule 1.7. For that informed consent, there has to be disclosure to the client of a conflict and other potential executors.

In essence, the client should be aware the lawyer could get a substantial fee. Under Johnson Estate, the fee is about 5 percent though it does decline depending on the size of the estate. In this modern world, when houses can be $200,000 to $300,000, the 5 percent fee can be a lot of money for very little work.

Every lawyer who does estate work knows it's better to have a family member named as executor unless there is some dispute. A son or daughter, particularly one who is responsible and lives in the area, is usually the best choice. Obviously, the testator would want to tell the other children why they chose one over the other, but usually it's just because one is closer by or has more financial experience. The family member would be a logical choice for the executor as opposed to the lawyer. Further, a family member usually has a better understanding as to what the testator wanted to do and how to handle the situation. The executor then can retain a law firm and also ensure that the fees are reasonable.

Unless there is absolutely no one else in the world who can fill the role as executor, a lawyer should never suggest himself or herself and should do his best to persuade the client not to use the lawyer as the executor or not to hire the lawyer's firm. Further, provisions in a will indicating the lawyer's firm should be retained are not mandatory provisions. The executor has the discretion to disregard such a directive and choose the person or firm they feel is best suited.

In conclusion, like everything else, the client's interest should always be put first. Anytime a lawyer gets an advantage at least by being appointed to some fiduciary position, the client has to make an informed choice and the client should be fully informed in writing and given the opportunity to seek independent counsel for advice. But, the bottom line is it is not a good practice for the lawyer or their firm to be named the executor.

Do not keep the original copy of your client's will.

When I draft wills for my clients, I usually keep the original will and give clients copies. I also give the clients a letter telling them the original will is in my office. Is that ethical or even wise to do?

There is no problem with the lawyer holding the will, but the better practice is to give the client the original will. Unless there is something wrong with the client, the client is perfectly able to keep and safeguard the original will. The client should be advised to put the will in a safe place where everyone knows where the will is. A safe deposit box would be an excellent suggestion or a certain drawer in the desk or bureau that the client uses. But, the client wants to advise the family where the will is. One of the most frustrating problems is not being able to find the will that was drafted after someone passes away.

If the lawyer keeps the original will, there might be certain obligations placed on the lawyer. For instance, the lawyer may have an obligation to notify the client of changes in estate law or tax law. This is particularly true if the lawyer or the client have a continuing attorney-client relationship. If a lawyer continues to have an attorney-client relationship with the client, then there's more of an obligation to update the will than if the will was written, the client is given a copy or the original, and the lawyer's representation is concluded.

The Pennsylvania Bar Association's Informal Opinion 93-111 strongly suggests that if the lawyer keeps the original will, then the lawyer has a continued obligation to the client. Some people suggest that the lawyer should send a letter ending the representation after the will is drafted if the lawyer does not want to be responsible for notifying the client of the changes.

Rule 1.4 of the Rules of Professional Conduct requires informed communication with a client. That rule requires a lawyer to keep a client advised and informed about the status of the matter and consult with the client about any changes. The lawyer is supposed to, under Rule 1.4(b), explain all matters to a client so the client makes a reasonable informed decision.

With that duty of communication, if the lawyer has maintained the original will or not ended the legal representation after writing the will, the lawyer has an obligation to keep advising the client on changes that might affect the will and the estate plan.

It is a better practice, as noted, to give the client the original will and keep a copy. But, from a marketing standpoint, it might not be a bad idea for the lawyer to continue to send changes to the client. It might generate more business and also help a client to make the appropriate changes. The lawyer has to remember they better be up-to-date and not miss legal changes that could create problems down the line for the estate.

In conclusion, to answer the question then, it's a better practice not to keep the will but there are duties a lawyer may have if they keep the will and those duties may apply even if they don't keep the will, depending on how they ended the attorney-client relationship.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.