The Dallas Morning News
The step too far
When an attorney’s actions cross the line
Attorney Alex Murdaugh was disbarred by the South Carolina Supreme Court for an alleged insurance fraud scheme and allegations that he had stolen money from his legal clients. That was before he was convicted of murdering his wife and son.
Texas frowns upon attorney wrongdoing, too. Texas is so protective of clients that it prohibits attorney acts that merely hint of inappropriate attorney influence. This is especially true in estate planning and probate, two areas of practice where it is easy for an attorney to have an outsized impact on their client’s decisions.
You, as a client, need to know what attorneys are prohibited from doing to unduly enrich themselves. Here is a short list.
An attorney should never solicit a gift from a client.
An attorney should never ask to be included in a client’s estate plan.
If you, the client, do want to include a particular attorney in your estate plan, then that attorney should not be involved in the preparation or drafting of the estate plan. Example: You want to leave $1,000 to your good friend and attorney, Don, in your will. Don is prohibited from advising you about, or drafting, your will.
That prohibition regarding drafting also applies to an estate plan where the attorney’s relative is included in the plan. Example: You want to leave Don’s wife $5,000 in your will. Don is prohibited from drafting your will, because you are leaving something to his wife.
The law on this point is harsh and unforgiving. The part of a written instrument, such as a deed or will, that the attorney supervised and that makes a gift to the attorney or the attorney’s relative is void. No explanation, no justification, no innocent reason is enough to change that outcome. It does not matter if Don is your best friend and his wife is your business partner. If Don drafts your will, then any bequest you make to Don or his wife is void.
How can you get around that if you really want to leave something to Don and his wife? It’s simple; have another attorney draft your will. The prohibition is not on you gifting something to them, the prohibition is on Don’s involvement in drafting an instrument that enriches himself or his family member.
There are a few common-sense exceptions. Attorneys can prepare routine estate plans for their family members that include the attorney as a beneficiary. Don, for example, could draft his wife’s will that leaves everything to him.
Attorneys can also accept some gifts from clients. The gifts just must be small or appear to be fair. However, even for acceptable gifts, the attorney is still prohibited from drafting the gifting documents.
Fiduciaries fall into a different category. You can name your attorney as a trustee or executor, and the attorney is permitted to prepare that document for you. The document can also provide that the attorney be compensated for serving in a fiduciary role, although the compensation is limited to amounts that are reasonable and necessary.
For many reasons, however, a lot of attorneys refuse to serve as a fiduciary, so don’t be surprised if your attorney gracefully declines to serve.
Sometimes clients like their attorneys so much that they want to include a clause requiring their executor or trustee to hire that specific attorney or law firm. It’s a nice thought, but that type of clause is not binding.
Attorney Virginia Hammerle has been board-certified in civil trial law for 25 years. Her practice includes estate planning, guardianship, probate and litigation. See her blog at hammerle.com or sign up for her newsletter at firstname.lastname@example.org. This column does not constitute legal advice.