Concept
The Two Prohibitions
Gifts from clients and drafting instruments for the lawyer's benefit (Rule 1.8(c))
The Two Prohibitions
Rule 1.8(c) contains two separate bans and one exception. A lawyer may not solicit any substantial gift from a client, including a testamentary gift, and may not prepare on behalf of a client an instrument that gives the lawyer, or a person related to the lawyer, any substantial gift. Both bans yield when the lawyer or other recipient of the gift is related to the client. The rule defines related persons to include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.1
Each ban is violated by its own act. A lawyer who asks a client for a gift breaks the first clause even if a colleague later drafts the instrument, because the clause names the request and mentions no document. A lawyer who drafts an instrument that favors the lawyer breaks the second clause even if the client proposed the gift, because the clause names the preparation and does not ask who started it. Neither clause makes actual influence over the client an element.2 The commentary ties the rule to concerns about overreaching and imposition on clients.3 Because the clauses forbid the acts themselves, no one has to reconstruct a private conversation after the fact, a task that is hardest when the gift takes effect at death.
Each ban breaks into three questions. The act asks what the lawyer did, whether soliciting a gift or preparing an instrument. The benefit asks whether the gift is substantial and who receives it. The exception asks whether the lawyer or the recipient is related to the client, which takes the conduct outside the ban.
One caution applies to the decisions below. Some quote older wordings of the rule. One version lists only the lawyer's parent, child, sibling, or spouse and excepts a client related to the donee.4 A Maryland version adds a second exception for a client represented by independent counsel in connection with the gift.5 The Model Rule text quoted above controls here. It has a wider list of related persons, a separate solicitation clause, and a single exception.
Soliciting a Substantial Gift
The first prohibition forbids a lawyer to solicit any substantial gift from a client, including a testamentary gift.6 A testamentary gift passes by the client's will at death, and the clause names it, so asking a client to leave the lawyer property at death is covered along with asking for a gift now. The clause stands alone. It says nothing of an instrument, so a lawyer who never drafts, reviews, or sees a document can still violate it. It reaches only a substantial gift, and the last subsection of this unit takes up the line between substantial and not.
The clause is a relatively recent addition. In 2002 the provision was amended to include soliciting a gift, whether or not the preparation of an instrument was involved.7 Before the amendment, the provision did not cover soliciting as such, which is why older decisions speak of drafting and say little about asking. The amendment closes a gap that a drafting-only rule leaves open. A lawyer could suggest the gift, send the client to another drafter, and prepare nothing, yet the client would feel the same pressure as if the lawyer had drafted the will.
The commentary states the concern directly. Because of overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client.8 The verb suggest matters, because a lawyer seldom needs to make a demand. In a relationship of trust, a remark that the lawyer would be honored to be remembered with a particular asset asks as plainly as a request does. What separates a violation from a permitted situation is who first put the gift on the table.
In the first scene the client's later use of a different drafter changes nothing. The clause punishes the act of asking, and neither the client's eventual decision nor the lawyer's part in the paperwork is an element. In the second scene the lawyer did nothing to bring the gift about, so there was no request to punish. Advising the client to seek independent counsel is the step the commentary contemplates when a substantial gift requires a legal instrument.9 On an exam, a warm conversation about the client's gratitude often blurs the two scenes. The question that sorts them is who raised the subject of a benefit to the lawyer.
The second scene escapes the solicitation clause but not the rest of the law. The commentary adds that a substantial gift a client offers may still be voidable under the doctrine of undue influence, which treats client gifts as presumptively fraudulent.10 A later section treats client-initiated gifts in full. The point to hold here is narrower: the solicitation clause asks only whether the lawyer asked.
Drafting a Self-Benefiting Instrument
The second prohibition forbids a lawyer to prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer or other recipient of the gift is related to the client.12 An instrument is a formal document that transfers property, such as a will, a codicil (an amendment to a will), or a conveyance. The solicitation clause turns on what the lawyer asked for. This clause turns on what the lawyer wrote.
The violation is complete when the lawyer prepares the instrument, and it does not matter who thought of the gift. The drafter chooses the words, so a lawyer who writes a gift to the lawyer into a client's will is advisor and beneficiary at once. The commentary's answer is that a client facing a substantial gift that needs a will or conveyance should have the detached advice another lawyer can provide, and the lawyer should advise the client to seek independent counsel.13 The rule keeps the lawyer who gains from the document out of the role of the client's advisor on it.
In Lawyer Disciplinary Board v. Ball, a Rule 1.8(c) proceeding, two sisters who were longstanding clients executed wills at ages 81 and 84.14 The wills bequeathed an automobile valued at $20,000 to the lawyer and items valued at $44,300 to his wife.15 The rule as quoted in that case barred preparing an instrument that gave the lawyer, or a person related to the lawyer as parent, child, sibling, or spouse, any substantial gift from a client, unless the client was related to the donee.16 A gift to the lawyer's wife therefore fell within the ban just as the gift to the lawyer did. The next subsection takes up the wider circle of related persons in the current rule.
Attorney Grievance Commission of Maryland v. Stein shows the rule applied to a lawyer who knew better than he acted. Stein drafted a will for a client, Mrs. Lindinger, in which he was named a beneficiary, and he stood to gain $116,988.79 from the estate.17 He recommended that she consult other counsel, but not independent counsel outside his firm, and when she did not, he drafted the will anyway.18 The court held that he knew or should have known that drafting a will naming himself a beneficiary created an obvious and facial conflict of interest. It found that he acted with conscious awareness of his conduct, treated a violation of Rule 1.8(c) as most serious, and ordered an indefinite suspension.19 His lack of prior violations was a mitigating factor but did not justify a reprimand. The court described the rule, even in its less stringent form, as an absolute prohibition against substantial transactions outside its two limited exceptions.20
Those two exceptions differ from the Model Rule's single one. The Maryland rule quoted in Attorney Grievance Commission of Maryland v. Brooke excepts a client related to the donee and also a client represented by independent counsel in connection with the gift.21 The Model Rule text allows only the first.22 Stein's recommendation fell short either way, because the counsel he had in mind was not independent counsel outside his firm. A later section explains why the Model Rule offers no consent or independent-counsel route at all.
Whether it matters that the client proposed the gift is a question an exam asks, and the answer is no. The contrast with a lawful will shows which facts do the work.
In the first scene the lawyer's sincerity and the client's real wishes change nothing, because the rule forbids the act outright and does not wait for proof of harm.23 In the second scene the size of the gifts is irrelevant, because the prohibition asks who benefits, and here the answer excludes the lawyer's side of the transaction.
The first three steps are the elements of the violation, and the fourth is the exception that can defeat it. Facts that exam questions like to stress, such as who proposed the gift, whether the lawyer sensed a conflict, and whether the document reflects the client's wishes, appear nowhere on the list.
Benefits to the Lawyer's Circle
The drafting prohibition reaches past the lawyer's own pocket. It forbids a lawyer to prepare for a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer or other recipient is related to the client.25 Related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.26 The last subsection asked who takes under the instrument. This one widens that question from the lawyer to everyone whose gain the rule treats as the lawyer's, and then asks how a court decides whether the gain is substantial.
A ban limited to the lawyer personally would be easy to evade. A lawyer who wanted a client's property could have the instrument give it to a spouse, a child, or a company the family owns, and the lawyer would still have chosen the words and given the advice. Judgment bends for a spouse or a child about as readily as for oneself, so the rule counts their gain as the lawyer's.
The definition has layers, and each answers a different kind of evasion. The named relatives cover the ordinary family. The phrase other relative picks up everyone else tied to the lawyer by blood or marriage, such as a sibling, without listing them. The closing phrase, an individual with whom the lawyer maintains a close, familial relationship, reaches people who are family in fact though not in law. The text says related persons include these categories, so the list illustrates the group and does not close it.27
Older decisions quote an earlier wording that reached only the lawyer's parent, child, sibling, or spouse, and they apply that narrower list to their facts.28 That wording is history. The current text names more relatives and adds the closing phrase for close familial relationships. The same sentence of the rule supplies the definition for the client-side exception, which the next section develops.
The two scenes differ only in the lawyer's tie to the recipient, and the clause asks about that tie as it exists, whatever its legal label. A lawyer cannot defend by pointing out that the partner is not a spouse. An exam answer that asks only whether the recipient is a formal relative will miss the broadest layer of the definition.
A gift to the lawyer's spouse can outweigh a gift to the lawyer. In Lawyer Disciplinary Board v. Ball, the gifts at issue were an automobile worth $20,000 for the lawyer and items worth $44,300 for his wife.29 The larger share of the transfer went to the spouse, which shows why a rule confined to the lawyer would have missed most of what it targets.
The rule applies even when the lawyer has no power over the recipient. A footnote to the majority opinion in Attorney Grievance Commission of Maryland v. Brooke explains that the rule is not limited to bequests to the drafting lawyer. It also bars drafting for an unrelated client who is not independently represented an instrument that leaves a substantial gift to a person related to the lawyer as parent, child, sibling, or spouse.30 The footnote notes that such a person may be beyond the lawyer's control for purposes of renunciation, as a minor child would be absent a separate guardian.31 The drafting is improper even though the lawyer cannot control what the recipient does with the gift.
A benefit can also reach the lawyer's circle through a business the family owns. In Ex parte Watson, the lawyer drafted codicils that gave a company the option to buy the testator's shares, and the lawyer and his mother were among the company's shareholders.32 The court found two ways the option could benefit them. Had book value been lower than fair market value when the option was exercised, the shareholders, including the lawyer and his mother, would have gained equity worth more than their indirect cost. And by buying the testator's shares, the company reduced the outstanding shares from 800 to 611. That raised the combined ownership of the lawyer, his mother, and a trust from about 25% to almost 33% and made their interests more influential in corporate decisions.33 A gift to a company can therefore be a substantial gift to the lawyer and the lawyer's family when they own the company and stand to gain through that ownership.
The court also fixed the moment at which the benefit is measured. Where a testamentary gift has the potential substantially to benefit the drafting lawyer or the lawyer's family, the propriety of drafting is evaluated in light of reasonably foreseeable circumstances, and the capriciousness of market values years in the future does not control.34 The reason is that the advice is given and the instrument is written before anyone knows how prices will move. If later values decided the question, a lawyer could draft a self-serving instrument and escape the rule whenever the numbers came out low. Judging foreseeability at drafting deters the conflicted act itself, which is the court's reason for testing the codicils as of the day they were written.
The sources give examples of substantial gifts and no dollar line. In Stein, a gain of $116,988.79 was described as a not insubstantial amount, and the gifts in Ball were valued at $20,000 and $44,300.35 Watson adds that a gift whose final value is uncertain can still be substantial when a substantial benefit was reasonably foreseeable at drafting. Resist supplying a threshold of your own. The working question is whether the foreseeable benefit to the lawyer or the lawyer's circle is more than a token.
The keepsake satisfies the circle element and fails the substantiality element, the reverse of the gift to the neighbor above. The items in Ball, valued at $44,300, show the other side of the line. When an exam gives the lawyer's relative a gift, confirm that the relative is within the circle, then ask what benefit was foreseeable at drafting. Neither answer alone is enough.