Consequences of Violation

Rule 1.8(c) forbids a lawyer to solicit any substantial gift from a client, testamentary gifts included, and to prepare for a client an instrument that gives the lawyer or a person related to the lawyer a substantial gift, unless the lawyer or other recipient is related to the client.¹ The text announces the prohibition and stops. It sets no penalty for the lawyer and says nothing about the property the forbidden conduct produced, so two separate bodies of law supply the consequences.

Professional discipline asks what the lawyer did and what sanction fits it. The rule makes soliciting or preparing the violation,² so no one has to prove that the client was actually influenced, and one lawyer was reprimanded for violating a disciplinary rule even though the court found no undue influence.³ The validity of the gift asks a different question about a different person: whether the donor's free choice produced the transfer. Undue-influence doctrine supplies that test. The two inquiries differ in forum, standard, and remedy, so the result of one does not dictate the result of the other.

Hypothetical Illustration

A lawyer prepares the will of an unrelated client of sound mind, and the will leaves the lawyer a substantial share of the estate. The client's relatives challenge it, the court finds no evidence of pressure, and the will is upheld. The will stands, yet the lawyer prepared an instrument giving the lawyer a substantial gift for a client who is not a relative, so the rule was violated and the lawyer remains exposed to discipline.

A second lawyer drafts a will leaving the lawyer the bulk of a frail, dependent client's estate and arranges the signing without the client's family present. A court sets the bequest aside for undue influence in a dispute among the family and the estate's other claimants, and no disciplinary complaint is ever filed. The gift falls although no sanction followed.

The first scene shows that a court's refusal to void a will says nothing about whether the lawyer complied, because the rule looks to what the lawyer did and the court looked to what the donor intended. The second scene shows the reverse: the absence of a complaint does not protect the gift, because the court's inquiry runs on its own. An answer on facts like these should state the disciplinary consequence and the effect on the gift separately and let neither stand in for the other.

Professional Discipline

The rule prescribes no penalty, so the court that hears the disciplinary case chooses one, and it asks two questions in order: whether the conduct fell within the prohibition, and how severely the violation should be punished.⁴ The first turns on the lawyer's act alone. That structure makes practical sense, because by the time anyone examines a self-benefiting gift the client is often dead and proof of overreaching is hard to assemble. The lawyer's circumstances enter at the second question. The reported outcomes run from a reprimand to an indefinite suspension. A lawyer who drafted a will for a family friend, including a devise to himself, was reprimanded although the court found no undue influence, and another lawyer was suspended for only 60 days, his “very close relationship” with the testator counted as a mitigating factor.⁵

The lighter end is illustrated by Watson, where the lawyer and the disciplinary commission agreed that a 60-day suspension was commensurate with the misconduct. They pointed to three mitigating factors: his recognition of the wrongfulness of his conduct, his very close relationship with the decedent, and 40 years of unblemished practice. The court weighed those factors and approved the agreed sanction.⁶

Stein stands at the other end. The court imposed an indefinite suspension, accepting that the lawyer's lack of prior ethical violations was a mitigating factor but holding that it did not justify a reprimand. It called a violation of Rule 1.8(c) “most serious” and said the lawyer's conduct undermines public confidence in the legal profession in a particularly egregious manner.⁷ A later Maryland opinion, Brooke, noted that Stein had no prior sanctions, committed only a single act of misconduct, and stated that he was unaware of the rule.⁸ A clean record, a single act, and professed unawareness of the rule did not hold Stein's sanction down.

The decisions are too few to set a scale, and the Watson figure was one the parties had agreed on in advance. The direction is still clear. The lighter outcomes came with acknowledged wrongdoing, a very close tie to the testator, and a long unblemished career. The heavier outcome came from a court that treated the violation as damage to public confidence and would not let a clean record reduce it to a reprimand.

Disciplinary matters often end by agreement. In Watson the lawyer and the commission agreed on the sanction, and the court approved it only after weighing the mitigating factors. In Ball the lawyer and disciplinary counsel submitted stipulated findings of fact, conclusions of law, and recommended discipline, which the Panel adopted, even though the lawyer had gone on inactive status a few days before the statement of charges was filed.⁹ A stipulation settles the facts and proposes a sanction, but a tribunal still adopts or approves it.

One limit on remedy appears in Brooke. Maryland's version of the rule reaches a gift, in an instrument prepared for an unrelated client who is not independently represented, to “a person related to the lawyer as parent, child, sibling, or spouse.” A bequest may therefore go to a relative who is beyond the lawyer's control for purposes of renunciation, the formal giving-up of a gift. Where the gift goes to the lawyer's minor child, Maryland law would seem to bar renunciation without the involvement of a separate guardian.¹⁰ Renunciation cannot undo every violation, and the sanction attaches to the lawyer's conduct even when the gift cannot be returned.

Exam Analysis Steps

Facts that cannot excuse a violation can still reduce the penalty, so an answer on discipline should keep liability and sanction apart. The steps are these:

Decide whether the lawyer solicited a substantial gift or prepared an instrument giving the lawyer or a person related to the lawyer a substantial gift, and whether the lawyer or the recipient is related to the client. Friends fall outside the exception even when the friendship is close.
If those elements are met, treat the violation as established. The lawyer's unawareness of the rule, the absence of actual undue influence, a clean record, and the client's genuine wishes do not defeat it.
Weigh severity. Recognition of wrongdoing, a very close relationship with the testator, and a long unblemished career supported a 60-day suspension, while a clean record alone did not reduce an indefinite suspension to a reprimand where the court saw serious damage to public confidence.
Ask whether the gift runs to a related person beyond the lawyer's control, in which case renunciation may not be available.

Effect on the Gift

Rule 1.8(c) regulates what the lawyer does and says nothing about the instrument the conduct produced.¹² A violation therefore exposes the gift to attack without itself voiding the will, trust, or deed. The gift's fate is decided under property law, which asks whether the donor's free choice produced the transfer. Because the two tests differ, a gift can survive although the lawyer violated the rule, and a gift can fall although the lawyer was never disciplined.

Property law bends its ordinary burden of proof in these cases because of who holds the evidence. A challenger who claims the testator was pressured would normally have to prove it, yet the only people present when the instrument was prepared were the testator, who is usually dead by the time the will is contested, and the lawyer who drafted it and takes under it. A presumption answers that problem by moving the risk to the drafter-beneficiary, who must come forward with an explanation.

The two systems overlap in their facts. The conduct that violates the rule also makes a gift look suspect, and at common law, benefits to family members of the drafting attorney have been held to raise a presumption of undue influence.¹³ Even so, the rule requires no proof of pressure, while property doctrine requires either that proof or a presumption. The question then becomes when a presumption arises.

Under the Restatement (Third) of Property, a presumption of undue influence arises if (1) there was a confidential relationship between the defendant and the testator and (2) suspicious circumstances are present.¹⁴ Jurisdictions that follow the traditional approach apply a different test, and the choice can change the result, as the Lipper analysis below shows. Statutes add another layer. The typical statutory presumption reaches an attorney who drafts a will and takes under it, and a drafter who is related to the testatrix can avoid it.¹⁵ A statute worded as a flat bar, providing that no provision of an instrument is valid to make a donative transfer to its drafter, with exceptions, would work differently. It would end the contest without proof of pressure unless an exception applied, whereas a presumption invites rebuttal. The Model Rule and the California statute also bar devises to certain persons connected with the drafter, such as a spouse or child, although their terms differ.¹⁶

A drafter who is related to the testator stands in a different position, and Lipper shows how. Frank, an attorney, drafted the will and took under it. He received more than he otherwise stood to receive, but he took only half the estate, and he spent a lot of time caring for the testatrix. Under the typical statutory presumption, Lipper is a classic example of an attorney who drafts the will and takes under it, yet Frank could avoid the presumption because he is related to her. Under the judicial presumption the answer depends on whether the jurisdiction applies the traditional approach or the Restatement approach. Even if a presumption arose under either, Frank arguably could rebut it with evidence that for years the testatrix had told several people, when he was not present, that she meant to disinherit her grandchildren because of their behavior toward her.¹⁷

Kinship therefore removes one burden without ending the inquiry. A trust drafted by the settlor's grandson that gave him a remainder was upheld, the court finding no presumption of undue influence because they were related. But kinship of the lawyer to the client is not an absolute defense to claims of undue influence, and the Restatement excuses a related drafter only if the gift is not significantly disproportionate to those given to donees similarly related to the donor.¹⁸

The estate court and the disciplinary authority also act independently of one another. In Brooke, the Orphan's Court separately exercised its jurisdiction to suspend and reinstate the respondent's powers as personal representative of the estate.¹⁹

Exam Analysis Steps

The disciplinary question and the validity question have different tests, so an exam answer should take them separately and in a fixed order. The steps are these:

Decide first whether the lawyer violated Rule 1.8(c) by soliciting or drafting, and treat that result as independent of whether the gift stands.
Ask whether the jurisdiction has a statute that bars or presumptively taints donative transfers to the drafter, and if it does, check whether one of the statute's exceptions applies.
If there is no statute, or no exception applies, ask whether a presumption of undue influence arises under the jurisdiction's test. Under the Restatement the test is a confidential relationship plus suspicious circumstances, and the traditional approach applies a different test.
If the drafter is related to the testator, note that kinship avoids the statutory presumption but is not an absolute defense, and ask whether the gift is disproportionate to what similarly related people receive.
Conclude that the violation exposes the gift to attack without itself voiding the instrument.

Step three is where jurisdictions differ most, so a careful answer names both tests when the facts do not say which one applies.