Ohio Board Advisory Opinion Op 89-014

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-014
Issued May 30, 1989
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer preparing a will for a client may not attempt to influence or encourage the
client to name the lawyer as executor. If the client insists on naming the lawyer preparing the will
as executor, the lawyer should explain to the client the potential for conflicts. If the lawyer serves
as executor, the lawyer should make every attempt to avoid even the appearance of impropriety.
OPINION: We have before us your request for an advisory opinion regarding EC 5-6 of the Code
of Professional Responsibility and will preparations. According to your request, a few of your
clients have requested that you be named executor of their estate. You also indicate that you have
never suggested this to your clients. Ethical Consideration 5-6 states that:
[a] lawyer should not consciously influence a client to name him as
executor, trustee, or lawyer in an instrument. In those cases where a
client wishes to name his lawyer as such, care should be taken by the
lawyer to avoid even the appearance of impropriety.
Potential conflicts which the client should consider include: 1) the potentially lucrative practice of
probating wills may impair a lawyer's best judgment when advising a client in the preparation of his
or her individual will; and 2) if the lawyer is called to testify in a proceeding involving her client's
estate, she may have to withdraw as counsel under DR 5-102. In each instance, the lawyer must
disclose the potential conflict and balance any potential conflict against her client's right to freely
choose an executor.

Op. 89-014 2
A lawyer may not consciously influence a client to name the lawyer as executor of an estate. If the
client insists on naming the lawyer who prepares the will as executor, the lawyer must advise the
client of the potential for conflict pursuant to DR 5-102. Philadelphia Bar Assn. Op. 80-2 (1980).
It has also been suggested that a lawyer may serve as executor providing she reveals her dual rule
to both the court and the beneficiaries of the will. Alabama Bar Assn. Op. 86-82 (1986). The
Alabama opinion further recommends that the lawyer make a good faith determination that any
legal work she performs as executor is necessary and will benefit the estate. Id.
In conclusion, an attorney may draft a will naming the attorney executor without violating the
Code of Professional Responsibility. However, such a decision should be made by the client, free
of any influence or suggestion by the attorney preparing the will.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.