The FBA Ethics Minute: Wills and Conflicts of Interest in the Age of Coronavirus

This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others—what to watch out for, what to do, and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!

The Curtain Rises

William, an attorney specializing in wills and estates, receives an urgent communication from an elderly client who has contracted COVID-19. The client would like to change her will to make William the primary beneficiary of her estate. William is not related to the client but has represented her for 20 years in many estate planning matters.

What should William do? Can he accept the testamentary gift? And with stay-at-home orders in place, can William ensure that a new will is properly executed?

The Moral of the Story

Becoming the beneficiary of a client’s will is addressed by professional ethics rules. Model Rule of Professional Conduct 1.8(c) prohibits attorneys from soliciting gifts from a client or preparing “on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.”  All jurisdictions have adopted some version of Rule 1.8(c). The Model Rule’s comments make clear that William should have his client seek the additional advice of another lawyer: If a substantial gift requires “preparing a legal instrument such as a will … the client should have the detached advice that another lawyer can provide,” unless the client is a relative of the donee.

A cautionary tale recently emerged from Virginia, where an attorney named himself and his son the beneficiaries of a client’s estate shortly before she passed away. After a challenge, a jury nullified the will in a verdict currently on appeal.  The Virginia Rules of Professional Conduct have similar prohibitions as the Model Rules (although you should always check your jurisdiction’s specific requirements).

Should a lawyer proceed with amending the client’s will, there are many questions regarding how wills can meet the execution requirements, which usually require witnesses/notaries. Some states have allowed remote notarization/witnessing, or attorneys have gotten creative and had socially distant signings with “BYOP” (bring your own pen). As always, you should check your state requirements before proceeding.

Ethics Minutes are for your general information and do not constitute legal advice. The rules, ethics opinions, and disciplinary cases in particular jurisdictions vary and might result in an outcome different from the scenarios that are described here.

About the Author

Nicole Kolinski is an attorney for the Architect of the Capitol Office of General Counsel. She serves on the FBA’s Ethics Committee and is on the Capitol Hill Chapter board. The above reflects the views of the author and does not represent the position of the Architect of the Capitol, legislative branch, or any government agency.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.