I previously wrote here about Florida Bar Ethics Rule 4-1.8(c), which bars Florida attorneys from writing themselves into wills and trusts they draft for clients . . . and the hot water one Florida attorney was in for allegedly running afoul of that prohibition. In Fla. Bar Urged to Help Estate Lawyers Avoid Ethics Pitfall a related issue is reported on: Florida attorneys naming themselves as personal representatives or trustees of wills and trusts they draft. The underlying conflict here is that fees payable to PRs and trustees can be huge windfalls for the attorneys involved.
My firm’s practice is to avoid serving as PR or trustee for our clients . . . when possible. There are situations, however, when clients need this assistance. For example, with respect to elderly clients with no family to speak of in Florida, you may be the only person in the world they can count on once they pass away to serve as PR, or the only person in Florida willing and able to step in as successor trustee of their revocable trust in the event of incapacity. That’s why a blanket ethics rule wont work in this context. The linked-to article addresses the other end of the spectrum: attorneys who ALWAYS solicit this business and ALWAYS write themselves in as PRs and trustees for their clients. Here are a few excerpts for the linked-to story:
Some estate and trust lawyers are urging the Florida Bar to recommend tighter rules governing lawyers who draft a client’s will or trust and also serve as the personal representative or trustee for the estate.
Florida Supreme Court rules prohibit lawyers from being named as beneficiaries in the wills they draft for clients. But nothing stops them from being designated as personal representative or trustee. As the personal representative or trustee, an attorney stands to earn significant fees.
Rohan Kelley of Fort Lauderdale, who heads the Bar’s real property, probate and trust law section, said too many lawyers “are writing themselves into documents for their own personal gain.” Lawyers should not serve in fiduciary roles in more than 50 percent of the cases where they draft the will or trust, he said.
“We need a disciplinary rule for lawyers who serve as not only trustees but personal representatives,” Kelley said. Lawyers who are found to be serving as the personal representatives or trustees for most of their estate cases should face discipline, he argued.
If lawyers place themselves in fiduciary roles in wills or trust documents they draft, it is imperative that they set up a legal mechanism that allows for their removal from such positions, said Christopher Boyett, Holland & Knight’s South Florida private wealth team leader based in Miami. “It’s absolutely awful to set up a situation where you cannot be removed,” he said.
Some trust and estate lawyers say there are circumstances where the best way for a lawyer to represent a trust and estate client is to serve in a fiduciary role, and the lawyer should be fairly compensated.
“It’s not easy to be a personal representative or a trustee, and it can come with a fair amount of liability,” said Michael Simon, a partner at Gunster Yoakley & Stewart in West Palm Beach.
But lawyers also agree that the lack of ethical guidance from the Bar increases the potential for attorneys to take advantage of estate and trust clients, who generally are elderly and may not be at their mental peak.