RPC 1.8(c), 1.7(b), Published Informal Opinion 86-1
Drafting wills and RPC 1.8(c) and 1.7(b)
The inquirer asks four questions to which the committee opines as follows:
Inquiry No. 1
The inquirer seeks the opinion of the Committee on whether a lawyer may draft a will for the lawyer’s stepfather naming the lawyer’s parent as the primary beneficiary, the lawyer and the lawyer’s siblings as contingent beneficiaries, and the lawyer as executor.
The inquirer should be referred to Informal Published Opinion 86-1 with respect to whether the lawyer may prepare a will naming the lawyer as beneficiary, and whether a lawyer may prepare a will in which the lawyer is designated as the executor.
RPC 1.8 is the primary rule at issue (although RPC 1.7(b) also is relevant). RPC 1.8 provides, in relevant part:
"A lawyer who is representing a client in a matter: . . . (c) Shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."
Under each of the proposed scenarios, the persons receiving the testamentary gift will either be the lawyer, the lawyer’s parent or the lawyer’s sibling. We assume there is no material issue regarding whether the lawyer is related to her parent and her siblings within the context of RPC 1.8(c).
Assuming the gifts to the lawyer’s relatives are “substantial,” RPC 1.8 precludes the lawyer from representing the testator unless the testator is “related to the donee” within the meaning of RPC 1.8. The rule does not describe the degree of relationship necessary to satisfy the requirement that the client be related to the donee. We are unaware of any Washington case construing whether a stepparent or in-law is a “relative” within the meaning of RPC 1.8(c). Nor have other State Bar Associations provided written advice regarding whether a spouse or a step-child is “related” within the meaning of this rule. The Committee believes that, for purposes of RPC 1.8(c), persons who are “related to the donee” are the same persons identified elsewhere in RPC 1.8(c)—i.e. parents, children, siblings and spouses. The Committee is further of the opinion that in-laws and “step” relatives are not “related” within the meaning of RPC 1.8(c). Therefore, the Committee does not believe the inquirer can rely on the exception currently contained in RPC 1.8(c) to prepare the will under the circumstances described in the first inquiry.
In this regard, the Committee observes that RPC 1.8(c), as adopted in Washington State, is different than the ABA Model Rule of Professional Conduct 1.8(c). The latter provides that “[f]or purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.” The Committee notes that the Washington State Supreme Court has published for comment amendments to RPC 1.8(c) that contain the above-cited language from the ABA Model Rule of Professional Conduct 1.8(c). The Committee believes that, depending on the facts and circumstances, a lawyer could reasonably conclude that an in-law or “step” relative maintains a “close, familial” relationship with the lawyer and/or the client. Thus, if the Washington Supreme Court adopts the proposed amendments to RPC 1.8(c) in the form currently proposed, the inquirer may be able to prepare the will described in Inquiry No. 1.
Inquiry No. 2
The inquirer next asks whether a lawyer may draft a will for the lawyer’s parent in which the lawyer’s stepfather will be the primary beneficiary, the lawyer and her siblings will be contingent beneficiaries, and the lawyer be executor.
The responses to Inquiry No. 1 generally address this inquiry. We note that the testator is “related” to the lawyer and her sibling. Therefore, RPC 1.8(c) would allow the lawyer to draft a will naming the lawyer and her sibling as beneficiaries. Consistent with our conclusion regarding Inquiry No. 1, we also conclude the inquirer can draft a will naming her stepfather as a primary beneficiary because the inquirer is not related to the stepfather within the meaning of RPC 1.8(c). The Committee observes that the inquirer must follow the requirements of RPC 1.7(b)(1) and (2) in preparing the proposed will, as the inquirer’s representation of the testator may be materially limited by the inquirer’s responsibilities to third persons (i.e. her sibling and her stepfather).
Inquiry No. 3
The inquirer next asks whether a lawyer may draft a will for her spouse in which the lawyer will be the primary beneficiary, substantial gifts will be left to the lawyer’s parent or siblings, and the lawyer will be designated as executor. The inquirer adds the question as of whether it is necessary to follow RPC 1.7(b)(1) and (2) as to a spouse’s will.
The responses to Inquiries No. 1 and 2 generally address this inquiry.
Regarding RPC 1.7(b), an attorney must follow RPC 1.7(b)(1) and (2) regardless of the facts of any particular situation. Further, insofar as Informal Published Opinion 86-1 addresses the question raised, the inquirer is referred to that informal opinion, as well as RPC 1.7(b)(1) and (2).
Inquiry No. 4
The inquirer asks if these wills may be ethically drafted, is there is any problem with the lawyer being named primary or contingent executor provided full disclosure is provided to the client.
Again, the inquirer is referred to Informal Published Opinion 86-1.