Is it proper for a lawyer, at the direction of his client, to prepare a Will containing a clause requiring the Executor, who is also a principal beneficiary, to retain the lawyer to represent the estate, and containing also a provision that if the beneficiary fails to comply with the condition imposed by the Will he shall forfeit his interest in the estate, which is then given to another person? If improper, may the drafting attorney, at the direction of his client, provide that the Executor is required to retain an attorney associated with the inquiring attorney?
Whether some or all of the proposed testamentary provisions would be valid and to what extent they might be enforced are questions of law on which this Committee does not advise.
It is not improper, however, for an attorney to prepare a Will containing a provision stating that the testator wishes the executor to retain such attorney or his firm as attorneys for the estate, if the provision is inserted on the initiative of the testator and is not suggested by the attorney. This is particularly so where there has been a long-standing relationship between the attorney and the client. The attorney should be sure to caution the testator that the provision is not enforceable and that the executor will be free to choose his own attorney. Preferably the provision should be in precatory and not mandatory terms, 140 N.Y. State (1970).
DR 2-103(A) and (C), which provide that a lawyer “shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer” and “shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or associate”, are inapplicable since the attorney asking this question is neither recommending nor requesting his employment but is merely expressing the unsolicited wishes of his client, which, expressed as mere wishes, run counter to no established policy,
It would not be proper for the attorney to Include an in terrorem clause associated with the request that he be retained by the executor notwithstanding that it is at the unsolicited direction of his client. The purpose of the clause, even if legally enforceable, patently would be to force the attorney upon the executor by economic sanction, whether or not the executor has in the attorney the confidence that is essential to a proper attorney-client relationship. Assisting this Would violate the attorney’s obligation to honor the profession’s responsibility to see that every person has access to the independent professional services of counsel in whom he has confidence. EC 1-1 and EC 2-9. The provision would be equally objectionable whether related to the retention of the draftsman himself or of an attorney associated with him.
June 13, 1974.