Ethics Opinon 1990-3

I
QUESTION PRESENTED

Son meets with the attorney in the attorney's office, without Father being present, and attempts to retain the attorney to draft a will for Father with the prime beneficiary being the Son. Alternatively, Daughter brings Mother to the attorney's office, explains that she has been caring for Mother for the past ten years, and states that Mother now wants to make a new will which cuts out the other children. Mother appears to be competent, but is apparently dependent upon Daughter for day to day care. While Daughter is still in the office, Mother consents to Daughter's proposed plan. What are the attorney's ethical duties when the proposed beneficiary asks the attorney to prepare the will?

II
SUMMARY

When an attorney agrees to draft a document with legal significance for another person, the person who must sign the document for it to have any effect becomes a client, regardless of who asked the attorney to draft the document, who paid for the services, or whether the attorney ever meets with the person who will be signing the will. Therefore, the attorney has an ethical obligation to ensure that the proposed document is made with the true consent of the person for whom the document is drafted, and that the document creates a will or estate plan that is appropriate for the person who will be signing the document. However, the person who requests that the will be prepared may also be a client. The attorney must clarify who is the client, disclose potential conflicts of interest in writing, and obtain any required consents from the mutual clients before proceeding further.

III
ANALYSIS

A. Creation of The Attorney-Client Relationship.

It appears that no court or ethics committee has directly addressed the specific issue of who is the client when a beneficiary requests that the attorney prepare a will for someone else to sign. But see Haynes v. First National Bank of New Jersey (1981) 87 N.J. 163, 432 A.2d 890. In our view, even though the lawyer may have been contacted by the beneficiary, or the beneficiary may be paying the attorney's fees, the person for whom the legal document is created is a client of the attorney and must be treated as such.

California Evidence Code section 951 defines a "client" as:

A person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent. (1)

Whether an attorney-client relationship exists does not depend upon the existence of a formal contract or an express understanding between attorney and client that such a relationship exists. "[A] client includes a person or entity which consults a lawyer for the purpose of retention or advice even if neither results." CAL 1984-85 (citing Estate of Dupont (1943) 60 Cal.App.2d 276, 288; People v. Dorvance (1944) 65 Cal.App.2d 125, 129 and L.A. Formal Opinion 366.) Courts are especially prone to find that an attorney-client relationship has arisen when a putative client reveals information in confidence to one he or she knows to be an attorney. See, e.g., Westinghouse Electric Corporation v. Kerr-McGee Corporation, et al. (7th Cir. 1978) 580 F.2d 1311.

As in other situations, the lawyer must make clear to the prospective clients whether or not he or she is representing them. "The duty to communicate includes the duty to communicate to persons who reasonably believe they are clients . . . at least to the extent of advising them that they are not clients." Butler v. State Bar (1986) 42 Cal.3d 323, 329.

It is certainly conceivable that the interests of the person who will be signing the will and the beneficiary who contacts the attorney may conflict. In that case, the conflict would bring in to play the provisions of California Rule of Professional Conduct 3-310. That rule provides in part:

(A) If a member has or had a relationship with another party interested in the representation, or has an interest in its subject matter, the member shall not except or continue such representation with all affect clients' information written consent.

(B) A member shall not concurrently represent clients whose interests conflict, except with their informed written consent.

. . .

(D) A member shall not accept employment adverse to a client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment except with the informed written consent of the client or former client.

(E) A member shall not accept compensation for representing a client from one other than the client unless:

(1) There is no interference with the member's independence of professional judgment or with the client-lawyer relationship; and

(2) Information relating to representation of a client is protected as required by Business and Professions Code section 6068, subdivision (e); and

(3) The client consents after disclosure, provided that no disclosure is required if; . . . [with exceptions not applicable here].

(F) As used in this rule "informed" means full disclosure to the client of the circumstances and advice to the client of any actual or reasonably foreseeable adverse effects of those circumstances upon the representation.

The discussion section to rule 3-310 clarifies that paragraph (A) is intended to apply to all types of legal employment, including the representation of multiple parties in employment, or in a single transaction or other common enterprise or legal relationship. Examples of the latter include "joint or reciprocal wills for a husband and wife." "In such situations, for the sake of convenience or economy, the parties may well prefer to employ a single counsel, but a member must disclosure the potential adverse aspects of such multiple representation (e.g., Evid. Code § 962) and must obtain the consent of the clients thereto. Moreover, if the potential adversity should become actual, the member must obtain the further consent of the clients pursuant to paragraph (B)."

As stated above, in our view the person who will be signing the document is clearly a client of the attorney, and must be treated as such. However, unless it is agreed upon in advance, the Son or Daughter may also be considered clients of the attorney. If so, the provisions of rule 3-310 apply. The attorney must disclose the potential conflicts of interest to the clients in writing, and obtain their informed written consent to the representation in order to proceed. Depending upon the specific facts, the conflicts of interest may be so great that the attorney would be well advised not to represent both even if the clients were willing to give their consent.

B. Discovering Undue Influence, Fraud, or Lack of Testamentary Capacity.

In addition, a lawyer must be satisfied that the client is competent to make a will and is not acting as a result of fraud or undue influence. Most clients are obviously competent and acting freely so that the issue is not dealt with expressly. Occasionally, the client's competence is in question because of age or illness, and the issue must be resolved. California Will Drafting Practice (CEB 1982), § 1.14, pg. 12.

The attorney must also look out for the problem in less obvious circumstances. Undue influence can be exerted by one spouse over the other or by an adult child over an elderly parent. See e.g., Estate of Mader (1970) 11 Cal.App.3d 409 (husband held to be presumed to have had undue influence over the wife).

Once the issue is raised in the attorney's mind, it must be resolved. The attorney should schedule an extended interview with the client without any interested parties present and keep a detailed and complete record of that interview. If the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud, no will should be prepared. The attorney may simply decline to act and permit the client to seek other counsel or may recommend the immediate initiation of a conservatorship. California Will Drafting Practice, Id. at § 1.14, pg. 12.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees, or the San Diego County Bar Association, or its agents, employees, or members.

California Evidence Code section 951 defines "client" for purposes of the lawyer-client privilege under California Evidence Code section 950, et seq. Nevertheless, that definition provides guidance in this context because the definition is consistent with case law treatment of who constitutes a "client."

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.