SUCCESSION OF Charles Wrennon WALLACE
No. 90-CC-0159
Supreme Court of Louisiana
January 22, 1991
574 So. 2d 348
DENNIS, Justice.
Jacqueline M. Goldberg in pro. per.
Max Nathan, Jr., New Orleans, for respondent.
DENNIS, Justice.*
An attorney disciplinary rule of this court provides that an attorney representing a client in any matter is required to withdraw from employment if he is discharged by his client. Rules of Professional Conduct, Rule 1.16(a)(3). The state constitutional question presented by this case is whether the legislature by the enactment of
The testator, Charles Wrennon Wallace, died March 9, 1981 leaving a statutory will in which he appointed his wife, Ruth Pearl Brink Wallace, executrix of his estate, and Jacqueline Mae Goldberg, attorney to act for the executrix and the estate. Mrs. Wallace filed a petition to probate the will. Subsequently Mrs. Wallace filed a rule to show cause why
This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. LSBA v. Edwins, 540 So.2d 294 (La.1989); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 109, 115 (La. 1979); LSBA v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Ex Parte Steckler, 179 La. 410, 154 So. 41 (1934); Meunier v. Bernich, 170 So. 567 (La.App.1936). The sources of this power are this court‘s inherent judicial power emanating from the constitutional separation of powers,
Conversely, the legislature cannot enact laws defining or regulating the practice of law in any aspect without this court‘s approval or acquiescence because that power properly belongs to this court and is reserved for it by the constitutional separation of powers.
The people‘s constitutional reposition of power carries with it a mandate for the full and responsible use of that power. See, e.g., American Trial Lawyers v. New Jersey Sup.Ct., 66 N.J. 258, 330 A.2d 350 (1974). Consequently, this court has not only the power but also the responsibility to regulate the practice of law in this state. LSBA v. Dumaine, 550 So.2d 1197, 1200 (La.1989); Saucier v. Hayes Dairy Products, Inc., supra; Succession of Boyenga, supra; LSBA v. Edwins, 329 So.2d 437 (La. 1976). Accordingly, this court has not hesitated to meet its judicial responsibility for the use of the inherent judicial power and original attorney disciplinary jurisdiction vested in it by the constitution.1
These rules are designed to give the client the right to control and direct the assertion and protection of his legal rights as fully as practicable, and to encourage and require an attorney to act with loyalty and in the best interest of his client. Rule 1.3, Comment [1] (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer“); Rule 1.4, Comment [1] (“Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter.“); Rule 1.7, Comment [1] (“loyalty is an essential element in the lawyer‘s relationship to a client.“); Rule 1.7, Comment [6] (“The lawyer‘s own interest should not be permitted to have an adverse effect on representation of a client.“); Rule 1.8, Comment [1] (“... all transactions between client and lawyer should be fair and reasonable to the client.“); Rule 2.1, Comment [1] (“A client is entitled to straightforward advice expressing the lawyer‘s honest assessment.“); Rule 7.3, Comment [1] (“There is potential for abuse inherent in direct solicitation by a lawyer ... [a] prospective client often feels overwhelmed by a situation giving rise to the need of legal services, and may have an impaired capacity for reason, judgment and protective self-interest.“).
2. The Rule Of This Court
Rule 1.16(a)(3), the rule defining and regulating the client-attorney relationship most pertinent to the present case, provides unequivocally that “a lawyer ... shall withdraw from the representation of a client if ... the lawyer is discharged.” The comment under the Rules of Professional Conduct Rule 1.16, explains that the rule means “[a] client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer‘s services.” (Emphasis added). Moreover, this court has held that “Disciplinary Rule 2-110(B)(4) [the identical predecessor provision to Rule 1.16] recognizes the client‘s absolute right to discharge his attorney.... Thus an attorney can [not] force his continued representation of a client who wishes to discharge him....” Scott v. Kemper Ins. Co., 377 So.2d 66, 69-70 (La. 1979) (Emphasis added); Accord: Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 111, 114, 116 (Calogero, J., On Rehearing) (Dennis, J., dissenting from original opinion).
The rule that a client may discharge his attorney at any time with or without cause was generally accepted as a jurisprudential precept prior to the adoption of either the Code of Professional Responsibility or the Model Rules of Professional Conduct. See Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987); In Re Estate of Deardoff, 10 Ohio St.3d 108, 461 N.E.2d 1292 (1984); Heinzman v. Fine, 217 Va. 958, 234 S.E.2d 282 (1977); Ambrose v. Detroit Edison, 65 Mich.App. 484, 237 N.W.2d 520 (1976); People v. Radinsky, 182 Colo. 259, 512 P.2d 627 (1973); Fracasse v. Brent, 6 Cal.3d 784, 100 Cal. Rptr. 385, 494 P.2d 9 (1972); Chancey v. West, 266 Ala. 314, 96 So.2d 457 (1957); Cole v. Meyers, 128 Conn. 223, 21 A.2d 396 (1941); First Nat‘I Bank v. Bassett, 183 Okla. 592, 83 P.2d 837; Ramey v. Graves, 112 Wash. 88, 191 P. 801 (1920); Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (1916); Louque v. Dejan, 129 La. 519, 56 So. 427 (1911); See Saucier v. Hayes Dairy Products, Inc., supra at 111; Kalish, Covenants Not to Compete and the Legal Profession, 29 S.L.Univ.L.J. 423, 439 (1985); Comment, A Mere Quantum Meruit for Attorneys’ Fees, 30 Yale L.J. 514 (1921); 1 Thorton on Attorney at Law § 138 (1914).
Indeed, the courts generally found that sound reasons of public policy and justice supported the mandatory discharge rule in the adjudication of individual cases before it was formalized as a disciplinary rule. The relation of attorney and client is one of special confidence and trust and the dignity and integrity of the legal profession demand that the interests of the client be fully protected. If the basis of the trust and confidence underlying a client-attorney relationship has been substantially undermined, the client must have the absolute right to terminate the relationship. Without public confidence in the members of the legal profession which is dependent upon absolute fairness in the dealings between attorney and client, courts cannot function in the proper administration of justice. Inherent in the relationship between attorney and client is the fact that the client must rely almost entirely upon the good faith of the attorney who alone can make an informed estimate of the value of the client‘s legal right and of the expense and effort necessary to enforce it. Saucier v. Hayes Dairy Products, Inc., supra at 111; Henry, Walden & Davis v. Goodman, supra; In Re Estate of Deardoff, supra; Heinzman v. Fine, supra; Ambrose v. Detroit Edison, supra; People v. Radinsky, supra; Fracasse v. Brent, supra; Chancey v. West, supra; Cole v. Meyers, supra; First Nat‘l Bank v. Bassett, supra; Ramey v. Graves, supra; Martin v. Camp, supra; Louque v. Dejan, supra; Comment, A Mere Quantum Meruit for Attorneys’ Fees, supra; 1 Thorton on Attorney at Law, supra.
In Louisiana prior to the adoption of Rule 1.16(a)(3), the relation of attorney and client was usually held to be that of mandate and revocable at the will of the client. Louque v. Dejan, 129 La. 519, 56 So. 427 (1911); Planters’ Lumber Co. v. Sugar Cane Byproducts Co., 162 La. 123, 110 So. 172 (1926); Gravity Drainage Dist. No. 2 v. Edwards, 20 So.2d 405, 207 La. 1 (1944); Smith v. Vicksburg S. & P. Ry., 112 La. 985, 36 So. 826 (1904); Comment, Termination of Powers of Attorney in Louisiana By Act of Parties, 22 Tul.L.Rev. 623, 633 (1948).
3. The Interim Between Rivet v. Battistella and Succession of Jenkins
In Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929) this court held that a testator‘s designation of an attorney to assist the executor in settling the estate was valid and binding on the executor and those who take under the will. The court reasoned that since the testator may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals, citing R.C.C. 1527 and 1519, the designation of an attorney is enforceable because it does not offend public policy in these respects.
The Rivet court did not expressly consider whether its holding was in conflict with the rule—only jurisprudentially established at that time—that the client may discharge his attorney at any time with or without cause. But the Rivet holding was later considered as having created an exception to the general rule. See Comment, Testamentary Designation of Probate Counsel, 51 Tul.L.Rev. 334, 342 n. 57 (1977); Comment, The Attorney-Client Relation in Louisiana, 18 La.L.Rev. 690, 702 (1958). With this decision Louisiana also became the only state that would enforce a testator‘s appointment of an attorney to handle the succession and provide a right of action to the designated attorney over the objection of the executor who had rejected his services as unsatisfactory. Comment, Testamentary
The Rivet rule was a jurisprudential creation, there being no law expressly authorizing or prohibiting testamentary designation of an attorney for the estate. This decision and its progeny came under criticism from both ethical and legal standpoints. This court‘s willingness to enforce the designation over the objections of the executor, the widow and the heirs gave added incentive to attorneys who would seek to unethically influence their clients to name them as lawyers in testamentary instruments. See Comment, Testamentary Designation of Probate Counsel, supra at 351-353. Further, the Rivet jurisprudential rule had a questionable premise and created potentially serious problems conducive to further litigation: the lack of any effective grounds for ever discharging a designated attorney; the treatment of a designated attorney as a legatee, as some courts held; conflicts of interests between the attorney and other parties to the succession; the attorney‘s disqualification as witness, or notary to the will, thus possibly voiding the will. Id. at 343-346.
Subsequently, in Succession of Jenkins, 481 So.2d 607 (La.1986), this court overruled Rivet v. Battistella, abolishing the Rivet rule that the designation of an attorney in a will is binding on the executor. But the process of overruling Rivet actually began earlier in Succession of Boyenga, 437 So.2d 260 (La. 1983), when the court held that a testator-designated attorney who had performed no work on a succession was not entitled to exact legal fees from the executrix because DR 2-106 and 2-110(A)(3) prohibit a lawyer from collecting an unearned fee and command him to refund promptly any unearned advance upon termination of employment. Thus, it is arguable that this court‘s decision in Boyenga foreordained our decision in both Succession of Jenkins and in the present case by indicating that a testator designated attorney has no effective recourse for a fee against an executor who is determined to prevent him from working on the succession and to employ other counsel for that purpose. See Mengis, Professional Responsibility, 47 La.L.Rev. 415, 417 (1986).
In Succession of Jenkins, this court held that the designation of an attorney in a will is not binding because “it infringes on the codal authority of the executor; it is not
Additionally, Jenkins’ majority and concurring opinions noted that there are serious ethical ramifications arising from the designation of an attorney-draftsman as attorney for the executor. When an attorney is permitted to name himself as the attorney for the executor in a will that he drafts, there are serious ethical problems centering around questions of improper solicitation, conflicts of interest and the client‘s ultimate freedom to discharge the attorney. See G. Johnston, An Ethical Analysis of Common Estate Planning Practices—Is Good Business Bad Faith, 45 Ohio St.L.J. 57, 101 (1984). As Professor Johnson skillfully explains, even in the states where the designation of an attorney has never been binding, these appointments cause serious ethical concerns. Id. Any knowledgeable lawyer knows that there are instances in which attorneys have improperly solicited future business by suggesting such a designation to the testator who in many instances does not realize that he is involved in a solicitation or a business transaction with the attorney or that he is in effect making a testamentary gift to the attorney. In some instances the provision is simply inserted into the will without specifically discussing the designation with the testator. Of course, the actual facts in a particular situation are virtually impossible to ascertain because the testator is dead by the time the issue is raised and the attorney-draftsman is usually the only other witness to the transaction. Moreover, the lawyer‘s self-interest in securing lucrative positions under the will creates a disincentive to advise the client about alternative methods of wealth transfer—such as outright gifts—that do not require the additional expenses of executors, trustees, and lawyers. Most egregious is the fact that the executor-designee and members of the testator‘s family may be misled into believing that they must retain the services of the attorney named in the will. Thus, in the case in which the testator had no genuine preference in the matter, but simply acceded to the provision inserted by the drafting attorney in the belief that it was routine boilerplate, the attorney‘s will is the only one which is truly implemented. Consequently, the Jenkins court concluded that public policy considerations militate against making an attorney designation a binding condition in a will. Succession of Jenkins, supra at 609. See generally, Levine, Legal Ramifications of Unethical Planning Practices, 124 Trusts & Estates 47, 50 (Oct. 1984); Wolfram, supra at § 8.2.4, 488; 31 Am.Jur.2d 97, Executors & Administrators § 16.
4. The Statute, the Conflict, the Resolution
Following Succession of Jenkins the legislature in its next regular session enacted
5. Respondent‘s Argument
Respondent does not challenge this court‘s constitutional power or responsibility to adopt Rule 1.16(a)(3) in regulating the practice of law. Nor does she deny that
That an attorney who renders legal services in furtherance of the administration of a testate succession is acting as the attorney for the executor conducting that administration seems self-evident. The decisions of this court and
In any event, it is not the prerogative of the legislature to define or regulate the practice of law or the attorney-client relationship. It is emphatically the province and the duty of this court to define the roles of client and attorney in the client-attorney relationship, by rule or adjudication, and to say what the law is in that regard. By applying rules and precepts to particular cases, we must of necessity authoritatively expound and interpret those precepts. If it were otherwise, the legislature could, as it has attempted to do in this case, render ineffective the inherent judicial authority by amending or superseding any decision or duly adopted rule of this court governing the practice of law.
The Rules of Professional Conduct are regulatory laws adopted by this court in the interests of the public, the courts and the legal profession. The purpose of lawyer discipline and disability proceedings employing these rules is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated by their conduct that they are unable or unlikely to be able to properly discharge their professional duties. ABA Standards for Lawyer Discipline and Disability Proceedings § 1 (1979). Accordingly, the disciplinary rules are rules of reason that should be interpreted and applied with reference to the purposes of maintaining appropriate professional standards and protecting the public and the courts from substandard attorney conduct. In performing its regulatory function by applying and interpreting the disciplinary rules, this court will look beyond superficialities for legal, economic and social realities; it will not accept uncritically the characterization or nomenclature assigned to relationships or transactions by other tribunals or branches of government.
A brief look at the interactions of attorneys and executors in the administration of successions convinces us that a client-attorney relationship is created between them when the attorney performs any significant legal service in furtherance of the administration of the estate. Indeed, it is difficult to imagine any valuable legal service that a lawyer could render for a testate succession that would not also aid the executor in the performance of his broad duties. The functions of an executor are to collect the assets of the estate, pay the succession debts, and distribute the balance of the property in accordance with the decedent‘s will or the laws governing intestate successions. The succession representative‘s principal activity is to liquidate the part of the decedent‘s estate which is required to satisfy the claims against the succession. Comment, Powers of Succession Representative in Louisiana, 27 Tul.L.Rev. 87 (1952). An executor or other succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.
In light of the executor‘s functions, powers and duties, we conclude that he is in truth the majordomo of the estate, having possession of all its property as well as the power and the responsibility to preserve its assets and enforce its claims. As such, the executor is in need of legal representation in order to make proper management decisions and protect himself against considerable risk of personal liability. If an attorney has been designated to handle the succession and accepts the assignment, he is duty bound to provide representation to the executor simply because the executor is the only person legally empowered to act with respect to the succession. Thus, there is at least an inchoate client-attorney relationship between the executor and the designated attorney from the moment of the executor‘s confirmation and issuance of letters testamentary. Consequently, we are convinced that the relationship between the executor and the attorney falls within the client-attorney relationship envisioned by Rule 1.16(a)(3) and the Rules of Professional Conduct.
Furthermore, it is universally held that when an attorney is employed to render services in procuring the admission of a will to probate, or in settling the estate, he acts as attorney of the executor, and not of the estate, and for his services the executor is personally responsible. In Re Estate of Ogier, 101 Cal. 381, 385, 35 P. 900, 901 (1894) (“There is no such office or position know to law as `attorney for an estate’ ... [h]e acts as the attorney for the executor”) (emphasis added). In Re Caldwell, 188 N.Y. 115, 80 N.E. 663 (1907); Laus v. Braasch (In Re Braasch‘s Estate), 274 Wis. 569, 80 N.W.2d 759 (1957); Johnston, supra at 102 n. 288 (1984); deFuria, Jr., supra at 278 n. 16 (“In most states, the attorney who handles the legal affairs of the estate represents the executor.“); Levin, Legal Ramifications of Unethical Planning Practices, 124 Trusts & Estates 47, 50 (Oct. 1984) (“... a lawyer has no vested interest in representing the estate of one whose will he has drawn ... the executor is entirely free to select any counsel he may wish.“); Comment, Wills—Direction to Employ Certain Attorney for Probate, 36 Marq.L.Rev. 211, 212 (1952) (“The office of... `attorney for the estate’ is unknown to law. These terms are popularly used to indicate one who is attorney for the administrator or executor in the management of the estate.“); see also In Re Arneberg‘s Estate, 184 Wis. 570, 200 N.W. 557 (1924); In Re Lachmund‘s Estate, 179 Or. 420, 170 P.2d 748 (1946); In Re Estate of Deardoff, 10 Oh.St.3d 108, 461 N.E.2d 1292 (1984); In Re Estate of Fresia, 390 So.2d 176 (Fla. App. 1980); Chancey v. West, 266 Ala. 314, 96 So.2d 457 (1957); In Re Estate of Marks, 83 So.2d 853 (Fla. 1955); Comment, Wills—Effect of Testamentary Designation of Counsel For The Executor, 31 Marq.L. Rev. 231 (1947); Comment, Testamentary Directions to Employ, 41 Harv.L.Rev. 709 (1928).
The idea that the living attorney is actually performing legal services for a dead testator is quite problematic. As Cardozo remarked in a different client-attorney context, “[t]he notion that such a thing is possible betrays a strange misconception of the function of the legal profession and its duty to society.” Andrewes v. Haas, 214 N.Y. 255, 108 N.E. 423 (1915).4 The initial problem is that only a “person” is capable of having rights and obligations. Plainiol, Traite Elementaire De Droit Civil, Vol. I, Part I, § 362. Since legal personality is
Respondent also suggests that the designated attorney may be considered the attorney for the succession, rather than the attorney for the executor. But a succession is no more of a person or legal entity than a deceased human being. “Succession is the transmission of the estate of the deceased to his successors. * * *”
In support of the idea that a client-attorney relationship between the testator and the attorney designated in the will survives the testator‘s death and precludes a professional relationship between the attorney and the executor, respondent cites Rules of Professional Conduct 1.2(a), 1.8(f), and 1.16,
Rule 1.2(a) provides that: “A lawyer shall abide by a client‘s decisions concerning the objectives of the representation,..., and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client‘s decision whether to accept and offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client‘s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” The comment under the rule, in pertinent part, provides that: “Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer‘s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives.”
Respondent contends that because the decedent‘s wishes, as expressed in his last will and testament, dictate the ultimate objectives
Rule 1.8(f), in pertinent part, states: “A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation * * *“. Respondent argues that because the attorney will be paid with succession funds the rule indicates that the testator is the client. But she overlooks the fact that it is the executor‘s duty to pay the lawyer‘s fee with succession funds as a debt of the succession. The succession is not a legal entity and therefore cannot pay anyone. The only person or legal entity involved who can act as a client in paying the lawyer is the executor.
Rule 1.16 requires a lawyer to withdraw from representation of a client if representation would be contrary to the rules of professional conduct or other law; the lawyer‘s mental or physical condition materially impairs his representation; or the lawyer is discharged. Respondent points out that the rule does not require the attorney to withdraw upon the death of the client. But death of the client itself terminates the client-attorney relationship by operation of law; therefore, there is no necessity for a rule requiring the attorney to withdraw when the client dies. Due v. Due, 342 So.2d 161, 164-165 (La.1977); Kinsey v. Dixon, 467 So.2d 862, 864 (La.App. 2d Cir. 1985).
In Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir.1962) the court of appeal held that an attorney named in a will to handle the testator‘s estate could not delegate his appointment to another attorney, but, in dicta, recognized “that an attorney named by a testator to represent the testator‘s executor or heirs enjoys an `irrevocable status’ in that as an agent of the testator so designated in the testator‘s will he may not be discharged from the mandate thusly conferred.” Id. at 169. Respondent contends that the court drew a significant distinction between an executor
Finally, respondent suggests that this court should uphold
Decree
For the reasons assigned, it is ordered, adjudged and decreed that there be judgment in favor of plaintiff declaring that, insofar as it conflicts with Rule 1.16(a)(3), LSA-R.S. 9:2448 is unconstitutional, null, void, and of no effect.
LEMMON, J., concurs.
WATSON, J., joins the opinion and assigns additional reasons.
CALOGERO, C.J., dissents and assigns reasons.
SUCCESSION OF Charles Wrennon WALLACE
No. 90-CC-0159
Supreme Court of Louisiana
January 22, 1991
574 So. 2d 348
WATSON, Justice.
WATSON, Justice, concurs in the majority‘s analysis and assigns additional reasons.
There is no federal constitutional right to dispose of property by will. Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 86 L.Ed. 452 (1942). “Rights of succession to the property of a deceased, whether by will or by intestacy, are a statutory creation, and the dead hand rules succession only by sufferance.” Irving Trust, 314 U.S. at 562, 62 S.Ct. at 401, 86 L.Ed, at 457. The Irving Trust rule accords with Blackstone‘s view; the right to take by inheritance or will is not a natural right.
In a related vein, Blackstone considered that the right to control property ceases upon death.1 Following this precept, all states except Wisconsin hold that the testamentary appointment of an attorney is merely advisory or precatory. See, e.g., McMullin v. Borgers, 761 S.W.2d 718 (Mo. App.1988); Chancey v. West, 266 Ala. 314, 96 So.2d 457 (1957); and In Re Marks’ Estate, 83 So.2d 853 (Fla. 1955). Thus, the Jenkins decision and this opinion are in the majority tradition of American testamentary law.
Louisiana law traditionally treated the fidei commissum in a similar manner. This donation mortis causa was a fiduciary bequest—i.e., a gift accompanied by a conditional disposition to another party. While the conditional disposition was prohibited, the balance of the will was valid. The condition was regarded as a precatory suggestion addressed to the conscience of the donee or legatee but without binding effect. Succession of Walters, 261 La. 59, 259 So.2d 12 (1972).
Since final authority over regulating the practice of law is vested in the Louisiana Supreme Court and not in the Louisiana Legislature, legislative acts that affect the
While the attorney represents principally the executor, it should be noted that there is some degree of responsibility, which need not be precisely defined today, toward the heirs, legatees and any other parties concerned with the succession.
I respectfully concur in the majority‘s conclusion that
SUCCESSION OF Charles Wrennon WALLACE
No. 90-CC-0159
Supreme Court of Louisiana
January 22, 1991
574 So. 2d 348
CALOGERO, Chief Justice.
CALOGERO, Chief Justice, dissenting,
I dissent from the majority‘s decision that
As the majority notes, our decision in Succession of Jenkins, 481 So.2d 607 (La. 1986), overruled a longstanding line of cases beginning with Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929). Rivet held that the testamentary appointment of attorneys was binding upon the executor and those who took under the will. Jenkins identified the ethical and doctrinal concerns raised by the testamentary designation of attorneys,1 and found that absent some specific legal authorization, those concerns counseled against the court‘s permitting such an appointment to have a binding effect. The Legislature responded to the Jenkins decision by enacting
The ethical concerns cited by the Jenkins majority principally concern the potential for solicitation and conflict of interest associated with the binding testamentary appointment of attorneys. Although those concerns are valid,2 I do not believe that the enactment of
The majority finds the statute to be unconstitutional on the basis that it conflicts with Rule 1.16(a)(3) of the Model Rules of Professional Conduct, which requires an attorney representing a client in any matter to withdraw from employment if he is discharged by his client. However,
The attorney named in a will has a responsibility to assist the executor, and the court, in the administration of the succession, as well as a duty to carry out the intent of the testator concerning the disposition of his estate. There is no presupposition at the outset that conflict will occur between the testator‘s intent and the administration of the succession in congruity with that intent. Should conflict arise between the executor‘s interests, purposes, and desires and the lawyer‘s understanding of how the testator‘s wishes should be carried out and the estate administered,
Notes
Sec. 2448. Designation of attorney
A. A testator may designate in his will an attorney to handle the legal matters of his estate, to open and close the estate, and to represent the executor. The testator may also designate one or more successor attorneys in the event the designated attorney predeceases the testator or is unable or unwilling to serve or, having served, discontinues doing so for any reasons or becomes at any time incapable of acting or resigns.
B. The designation of an attorney shall also be governed by the following.
(1) The designation in a testament or a codicial of an attorney or a successor attorney to handle the legal matters of the estate shall be valid and binding on the executor, or other succession representative, and the heirs and legatees.
(2) An attorney so designated may be removed as such only for just cause.
(3) An attorney for the estate shall be allowed as compensation for his services such reasonable amount as is provided in the testament in which he is appointed. In the absence of such a provision for compensation in the testament, the attorney shall be allowed such reasonable amount as is provided by agreement between the attorney, the succession representative, if any, the surviving spouse, if any, and all competent heirs or legatees of the deceased. In the absence of a provision for compensation in the testament or an agreement between the parties, the attorney for the estate shall be allowed a fair and reasonable fee for services actually rendered. The court may increase the compensation upon a proper showing that the fee provided in the testament or agreed upon between the parties is inadequate.
(4) The compensation of an attorney for the estate shall be due upon the homologation of the final account. The court may allow an attorney an advance upon his compensation at any time during the administration.
Rule 1.7 of the Model Rules of Professional Conduct provides that
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer‘s ... interests.
Rule 1.8 provides that
As a general principle, all transactions between client and lawyer should be fair and reasonable to the client.
Rule 7.3 provides that
A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no prior family or professional relationship, in person or through others acting at his request, when a significant motive for the lawyer‘s doing so is the lawyer‘s pecuniary gain....”
Arguably, Rule 7.3 would not bar the solicitation of an existing, as opposed to a prospective client, and a person for whom an attorney is drawing a will would fall into the former category. That is not to say, however, that blatant solicitation of a new client who merely comes to an attorney for the confection of a will might not violate this Rule.