Undue influence is one of the most intriguing and perplexing concepts in trust and estate law. It embraces actions that are not necessarily deceptive enough to constitute fraud, yet not so overtly coercive as to constitute duress, exerted against someone who might not even be suffering from diminished capacity. Some instances of wrongdoing are clear and egregious – you know it when you see it. Most are much less so. Even leading academics have called undue influence a “nebulous concept,”[1] perhaps “the most bothersome … in all the law.”[2] However, it is much too prevalent to ignore.

A GROWING PROBLEM

Approximately one in six individuals aged 60 and older have experienced some form of abuse or exploitation in the past year,[3] with 20-40% of those cases involving financial exploitation.[4] The U.S. Senate Special Committee on Aging reported that seniors lose an estimated $2.9 billion each year as a result of exploitation and undue influence.[5] Many sources suggest that figure is a dramatic underestimate, with some loss estimates reaching more than $35 billion per year. That’s greater than the gross domestic product of half the countries in the world.[6] Given the ubiquity of the problem and the stakes involved, it is no surprise that, “Undue influence is the most commonly asserted ground for invalidating a will.”[7] And the crisis is expected to only get worse.[8]

As key advisors to those most susceptible to this type of exploitation, estate planning attorneys are particularly well-situated to protect clients and their estates. But what, exactly, are we obligated (or even allowed) to do? The specter of undue influence presents a minefield of complex ethical issues that lawyers must navigate carefully. To further complicate matters, scientific developments in recent years have “call[ed] into question many of the premises of … how ‘rational’ or ‘free will’ decisions are made,”[9] changing the way estate planners need to think about undue influence. Deciphering this area of law can seem an insurmountable task, like understanding ERISA or getting through Thanksgiving dinner without a family member saying something uncomfortable. This article aims to do three things: 1) demystify the frequently misunderstood doctrine of undue influence, 2) explain some of the key ethical obligations and pitfalls in this area of the law and 3) equip attorneys with the tools to identify (and hopefully prevent) undue influence in the estate planning context.

A PRIMER ON UNDUE INFLUENCE

The ethical rules of our profession are best understood in context.[10] To comprehend the scope of a lawyer’s duties with respect to undue influence, it is essential to know what undue influence is. Many lawyers believe, incorrectly, that a client must lack capacity or suffer from cognitive defects to be unduly influenced. While it may be easier to exert undue influence over an incapacitated person,[11] the two concepts are independent.[12] A competent person is still vulnerable to this kind of manipulation.[13] In fact, “People with general capacity to do business or deal with complex situations are taken advantage of with great frequency.”[14]

Undue influence developed in the common law to protect against “overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongdoing.”[15] It has often been defined as that degree of influence “which destroys the testatrix’s free agency,”[16] effectively “substitut[ing] another’s will for that of the testatrix’s”[17] and causing her to make a donative transfer she would not otherwise have made.[18] Although these definitions are useful to describe the conceptual space undue influence occupies in the broader framework of the law, they don’t tell us much of practical use, and they fall well short of reflecting what science has come to understand about human decision-making.[19]

Because direct evidence of undue influence is rarely available, courts have long utilized a system of inferences and burden-shifting presumptions to aid them in assessing claims.[20] Circumstantial evidence is generally sufficient to raise an inference – something the judge or jury is allowed but not required to rely on as fact – of undue influence, where 1) the testatrix was susceptible to the influence of others, 2) the influencer had the opportunity or ability to exert influence over the testatrix, 3) the influencer had a disposition to exert influence of a nature that would cause the testatrix to make a provision contrary to her own desires and 4) the resulting disposition appears to have been the product of the undue influence.[21] These four elements, often referred to in clinical contexts as “SODR factors” (Susceptibility Opportunity Disposition Result), are not necessarily determinative but provide the trier of fact with objective indicia to guide their analysis.[22]

On the other hand, a rebuttable presumption of undue influence will arise where 1) a “confidential relationship” existed between the testatrix and another, stronger party and 2) the stronger party “actively assisted” in the procurement of the will.[23] Once this presumption is raised, the burden shifts to the will’s proponent to establish mitigating circumstances showing the free agency of the testatrix was not overcome. The Oklahoma Supreme Court has cited two primary factors sufficient to rebut a presumption of undue influence: 1) receipt by the testatrix of independent and competent legal advice regarding the disposition of her estate before executing the will and 2) the termination of the confidential relationship prior to the will’s procurement.[24] While courts have not foreclosed the possibility of other evidence that could rebut a presumption once raised, there appears to be no Oklahoma cases holding the presumption was overcome absent one of the above two factors.

It is also irrelevant whether the influencer benefits personally from the wrongfully procured will. A person’s lack of beneficiary status does not render them legally incapable of, or excuse them from, exercising undue influence.[25] “The gravamen of undue influence is legal harm from the wrongful exertion of power over the will’s maker rather than the receipt of personal benefit from the offending act of influence.”[26] It is not the result of the influence but the influence itself that vitiates the will.

THE ETHICAL IMPLICATIONS OF UNDUE INFLUENCE

Estate planning attorneys figure prominently in undue influence claims.[27] In some instances, the attorney is the bad actor, having taken advantage of a confidential relationship to procure a gift for themselves or another.[28] This article does not explore the ethics of the attorney as wrongdoer. Rather, our focus will strictly be on the ethical obligations and pitfalls that may arise when wrongdoing is practiced by someone else.

Any discussion of a practitioner’s responsibilities in this area must recognize the two very different perspectives from which trust and estate lawyers encounter undue influence. First is the front end of the estate planning process: consultation, preparation and execution. Because the practitioner’s goal at this stage should be to avoid or prevent undue influence to ensure a valid estate plan, I will refer to duties associated with this perspective as “protective” in nature. Second is the back end: after the client dies, when a will is challenged in court. I will refer to these duties as “evidentiary,” given the drafting attorney’s key role as a potential witness in the probate proceedings.

Front-End ‘Protective’ Implications

For good reason, most of the literature discussing undue influence focuses on the protective role of the estate planning attorney. How to identify undue influence, and how to guard against it. While the front end of the planning process implicates numerous ethical issues, this article focuses only on three: competence, confidentiality and conflicts of interest.

Duty of competence. The Oklahoma Rules of Professional Conduct (hereinafter, the “rules”) begin by setting forth the most basic duty of any practitioner: competence. A competent attorney is one who has or is able to acquire through reasonable study, “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”[29] Think of competence as a set of tools. The skill and know-how you currently possess are the tools already in your toolbox. When you are asked to provide representation that requires a tool (knowledge or skill) you don’t have, it is fine to accept the matter if you can buy that tool at, say, The Home Depot (easily acquire it) or borrow it from a friend (associate with a competent attorney). It is much more problematic to take on a project that requires you to rent a crane, use explosives or represent someone in a capital murder trial when you have only ever handled quiet title cases.

Among other things, a competent estate planning attorney must know how to prepare and execute a valid will.[30] Simple enough, right? After all, the core Wills Act formalities are spelled out in 84 O.S. §55, and form books and the internet offer a multitude of templates that can be adapted for each client’s purposes. The uniformity and accessibility of wills leads many lawyers to draft them, even if they have little or no experience with estate planning. There is just one problem: Formalities alone are not sufficient to validate a testamentary act. A will also must be executed freely and voluntarily.[31] Accordingly, the law states that any will procured by undue influence is invalid.[32]

So, should the competence of a drafting attorney be called into question any time a will is thrown out on the ground of undue influence? Certainly not. Many instances of exploitation are uncovered only through meticulous investigations conducted by medical and social work professionals with specialized knowledge, training and experience. These are skill sets the vast majority of attorneys do not (and should not be expected to) have. However, the official comments to Rule 1.1 explain that competent representation “includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods … meeting the standards of competent practitioners.”[33] An attorney who does not have at least a general idea of the warning signs or “red flags” of undue influence or does not closely scrutinize those signs when they appear arguably fails to discharge their duty of competence.[34]

Duty of confidentiality. Suppose you are engaged by a client, and during the consultation process, you begin to suspect they are being unduly influenced. Being a competent attorney, you decide to “inquir[e] into and analy[ze]” the situation before proceeding any further. You have contact information for a family member of your client, so you call them up to voice your concerns and ask them for more information. Just like that, you have violated your duty of confidentiality. This “fundamental principle in the client-lawyer relationship”[35] is a pitfall for the well-meaning attorney seeking to protect a client from potential undue influence.

Pursuant to Rule 1.6(a), an attorney is prohibited from “reveal[ing] information relating to the representation of a client unless the client gives informed consent.”[36] Rule 1.6(b) offers certain exceptions to this rule, such as disclosure “to prevent reasonably certain death or substantial bodily harm” or “to prevent the client from committing … a crime” or “to prevent, mitigate or rectify substantial injury to the financial interests or property of another [i.e., of someone other than the client].”[37] Noticeably absent, however, is the ability of an attorney to disclose information to prevent, mitigate or rectify substantial injury to the financial interests or property of a client when, for example, the attorney suspects the client is being exploited. So, what can you do?

Rule 1.14 may offer aid in some cases, allowing a lawyer to disclose information for the purposes of “taking protective action” where the lawyer “reasonably believes that the client has diminished capacity.”[38] However, the comments make clear that “capacity” in this sense refers only to the client’s cognitive functioning and, thus, does not encompass other factors that make them more susceptible to undue influence or exploitation.[39] This exception to the duty of confidentiality is a narrow one that “does not give the lawyer carte blanche to impose on the client the lawyer’s personal view of what is in the client’s best interest.”[40]

The only method under the rules by which an attorney may disclose confidential information for the purpose of investigating suspected undue influence is with the client’s informed consent.[41] “Informed consent” requires explaining to the client, in specific terms, the proposed course of action as well as the risks or adverse consequences that may result from such action.[42] A blanket confidentiality waiver signed at the start of representation will not do the trick. Be forthright with your client, even if it requires an uncomfortable conversation. Failing to discuss the issue directly entails “the risk that the client … is inadequately informed and the consent is invalid.”[43]

There is not one single “best” way to broach the topic of undue influence with a client when seeking their informed consent. In my experience, I find the least uncomfortable option is approaching it from the perspective of making sure the client’s wishes are followed. Point out the facts that have raised your suspicions – though you do not necessarily need to reveal that you are suspicious – and explain that someone could use those facts to later argue the estate plan was procured by undue influence. Tell your client, truthfully, that by undertaking a thorough investigation now, you can serve as a better witness in a potential will contest. Your client is an adult. The fact that they might be the victim of undue influence does not mean they deserve any less respect and dignity.[44]

One final consideration: Even if a client consents to the disclosure of confidential information, an attorney should still think carefully before doing so. Consulting with someone about a matter of undue influence could trigger a mandatory reporting obligation under the Protective Services for Vulnerable Adults Act.[45] (Lawyers are exempt from these obligations.) The involvement of law enforcement can be (and typically is) undesirable, even traumatic for a client. It can lead to family strife, court action, changes in living arrangements and other consequences that upend the client’s life.[46] For the sake of the client, consider whether less disruptive measures are available before sharing your concerns and disclosing confidential information to a third party, even if you are authorized to do so.

Conflicts of interest. Rule 1.7(a) forbids a lawyer from undertaking a representation that is “directly adverse” to another client or if there is a “significant risk” that the representation would be “materially limited by the lawyer’s responsibilities to another client.”[47] This obligation is rooted in the duty of loyalty, which is an “essential element[ ] in the lawyer’s relationship to a client.”[48] Conflicts of interest are often imagined in terms of representing parties who are on opposing sides of a controversy or who are generally antagonistic toward one another. Yet, nonadversarial practice is fraught with conflicts as well, and estate planning is no exception.[49]

One of the most common such conflicts arises when a client asks their attorney to prepare a will, trust, power of attorney, etc., for someone else. It is fine for a client who is happy with their attorney’s services to refer family members and friends. That is how many estate planners keep the lights on. But ethical problems begin to bubble up when the referring client wants to be involved in the planning process for the person they referred. This involvement can take many different forms, including providing information about the new client, paying the attorney for their services to the new client, being present for a consultation or other meetings with the new client, conveying the new client’s wishes to the attorney or talking with the attorney about desired changes to drafts of the new client’s documents.

A fundamental tenet of representation is that an attorney must “exercise independent professional judgment and render candid advice” to the client.[50] Each of the actions described above or other third-party involvement in the estate planning process can affect an attorney’s ability to fulfill that duty so vital to the lawyer-client relationship. Consequently, attorneys should remain mindful of two rules (in addition to confidentiality) that apply to the involvement of non-clients in the representation: Rule 1.8(f) and Rule 5.4(c).

Rule 1.8(f) applies when someone other than the client seeks to pay for the attorney’s services. Under this rule, an attorney can only accept compensation from a third party if doing so does not interfere with the attorney’s independent professional judgment, and the client gives their informed consent.[51] Even if a client agrees to someone else paying their legal fees, the arrangement can look suspicious and could increase the likelihood that the will or trust is challenged.[52]

It is common for a family member or friend of the client to get involved in ways other than paying for legal services. Where a third party is not supplying payment, Rule 5.4 requires simply that an attorney not permit the party to “direct or regulate” their professional judgment in representing the client.[53] Unlike Rule 1.8(f), a client’s informed consent is not required under Rule 5.4(c) (though informed consent will still be necessary to waive confidentiality if the third party is to receive any details relating to the representation).

In addition to conflict-of-interest concerns, the participation of someone other than the client in the estate planning process should trigger a heightened concern of undue influence. Involvement in such intimate, important decisions “afford[s] [the third party] a unique opportunity to influence the disposition” of the testator’s estate.[54] The mere presence of another person can also affect what a client is willing to tell their attorney or mask signs of nefarious action. If a client wants a friend or family member to sit in on a meeting, you should, at minimum, visit with the client privately for a while before inviting the other person to join you. Doing so can help establish that the client received “independent and competent advice” and rebut a later claim of undue influence.[55]

There is no litmus test for determining the appropriate level of third-party involvement in the estate planning process.[56] However, such participation can make a will contest based on undue influence more likely to succeed.[57] It is therefore good practice to explain these risks to your client before allowing a third party to get involved, particularly if you have a preexisting relationship with that person (e.g., they are also a client of yours). In fact, attorneys arguably have an obligation to share this information with the client under Rule 1.4(b) as it could impact their decision whether to engage the lawyer at all.[58]

Back-End ‘Evidentiary’ Implications

Ethical pitfalls still arise even after a client’s death. As noted above, the estate planner can play a vital evidentiary role in the probate process. Attorneys regularly attest to the wills they draft, making them necessary witnesses in will contests,[59] and can offer key testimony in proving the terms of a lost will.[60] But perhaps nowhere is the estate planner’s role more crucial than when an estate plan is challenged on the grounds of undue influence.

Because influencers frequently work to isolate their victims from family and friends, evidence of the statements and desires of the testatrix during the will-making process often come from only two sources: the lawyer and the influencer. The reliability of the influencer is suspect. It is in their best interest to testify in a way that minimizes the role of their influence. That leaves the drafter’s testimony. An attorney who “took careful steps to ensure that the drafted document reflected only [the testatrix’s] desires” can save a will.[61] On the other hand, an attorney who failed to advise the testatrix “privately … impartially and confidentially” can be the final nail in the coffin, leading to a finding of undue influence.

The importance of the drafting attorney’s testimony in undue influence cases can lead to a serious ethical problem. Under Rule 3.7, attorneys are prohibited from serving as an advocate at a trial in which they are likely to be a necessary witness.[62] It is common for a decedent’s family, when looking for advice concerning probate, to engage the attorney who prepared their loved one’s estate plan. That is fine for ordinary administrations. In contested proceedings, however, combining the two roles, advocate and witness, can “prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.”[63]

Rule 3.7 contains a few exceptions to this general bar. A lawyer may accept representation if their testimony “relates to an uncontested issue” or “relates to the nature and value of legal services rendered in the case.”[64] Serving as both counsel and witness in these situations does not risk the same prejudice since there is “less dependence on the adversary process to test the credibility of the testimony.”[65] The third and final caveat is that a lawyer whose testimony will be needed may act as advocate if “disqualification … would work substantial hardship on the client.”[66] This last exception is unlikely to apply to most probates. A diligent attorney should be able to determine early on whether someone might contest the proceedings. Even if the challenge is a surprise, a will contest usually occurs at the beginning of the probate process when another attorney can easily step in. Under such circumstances, the client does not suffer “substantial hardship” by having to find replacement counsel.[67]

As long as the case falls within one of the permissible exceptions, an attorney may serve as counsel in a probate matter despite the need for their testimony. But the issues being contested can easily change as a case evolves, potentially undermining the facts used to justify your representation. If there is any chance the will might be challenged, the safer course of action would be to refer the case to another attorney. As the OBA Legal Ethics Committee (predecessor to the Legal Ethics Advisory Panel) cautioned, “Any lawyer relying on [an] exception [to Rule 3.7] … bears a heavy burden of justification for his decision to serve as both witness and advocate, and in most circumstances doubts should be resolved in favor of the lawyer testifying and against his continuing as an advocate.”[68] Failing to do so could prove detrimental to your client’s case.[69]

FINAL THOUGHTS AND BEST PRACTICES

No court has posited that estate planning attorneys bear a duty to identify and investigate potential undue influence in all cases. Considering the nuance of the doctrine, that is probably for the best. But does that mean attorneys will be excused for failing to spot – or worse, for ignoring ­– warning signs of undue influence? As noted trusts and estates professor William M. McGovern Jr. opined, lawyers should not have to “decide, at their peril, whether a client is … under undue influence. Nonetheless, a lawyer who has reason to suspect this should not ignore the problem.”[70]

Always visit with a client privately to determine their wishes and be forthcoming with any concerns you have. Remain vigilant for common indicia of undue influence, such as the SODR factors. If your suspicions are raised, get a second opinion from another attorney who can look at the case with a fresh set of eyes (though obtain the client’s informed consent before doing so). Encourage the client to get a psychological evaluation – not necessarily because you suspect they are incompetent but to establish their capacity as an evidentiary matter. Taking simple actions such as these can best ensure you are properly discharging your professional responsibilities.

One final note. The ethical considerations that make it important for us, as practicing attorneys, to be aware of and guard against undue influence also serve a broader social purpose: authenticating and preserving the integrity of the client’s legacy. The freedom of disposition turns on the notion that a person’s exercise of the testamentary right is the fruit of their own volition; a will has value only to the extent it actually reflects the wishes of the will-maker. And as the principal conduit through which this expression of human agency flows, the legal profession is best situated to make sure that continues to be true.

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ABOUT THE AUTHOR

David M. Postic is a shareholder at Postic & Bates PC in Oklahoma City, where he practices primarily in the areas of estate planning, probate and trust administration. He also serves as an adjunct professor teaching Wills and Trusts at the OU College of Law. He can be contacted at posticd@posticbates.com.

 

 

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ENDNOTES

[1] Ronald J. Scalise Jr., “Undue Influence and the Law of Wills: A Comparative Analysis,” 19 Duke J. Comp. & Int’l L. 41, 56 (2008).

[2] Jesse Dukeminier and Robert H. Sitkoff, Wills, Trusts, and Estates 289 (11th ed. 2022).

[3] Yongjie Yon, Christopher R. Mikton, Zachary D. Gassoumis and Kathleen H. Wilber, “Elder Abuse Prevalence in Community Settings: A Systematic Review and Meta-Analysis,” 5 Lancet Global Health e147, e150–52 (2017). See also National Center on Elder Abuse, “Research, Statistics, and Data,” available at https://bit.ly/3zqrjLv (last visited Aug. 3, 2022).

[4] Compare Edward O. Laumann, Sara A. Leitsch and Linda J. Waite, “Elder Mistreatment in the United States: Prevalence Estimates From a Nationally Representative Study,” 63B J. Gerontology S248, S251–53 (July 2008) (estimating 3.5% financial abuse), with Yon et al., supra note 3, at e152 (estimating financial abuse at 6.8%).

[5] U.S. Senate Special Committee on Aging, Fighting Fraud: Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors 30 (2020).

[6] The World Bank, “World Bank National Accounts Data, and OECD National Accounts Data Files,” available at https://data.worldbank.org/indicator/NY.GDP.MKTP.CD (last visited Nov. 10, 2022).

[7] Eunice L. Ross and Thomas J. Reed, Will Contests §7:21 (2d ed. 1999). See also Jeffrey A. Schoenblum, “Will Contests – An Empirical Study,” 22 Real Prop. Prob. and Tr. J. 607, 647-48 (1987) (finding that 74% of will contests involved allegations of undue influence or lack of testamentary capacity versus 14% of will contests that questioned the adherence to formalities).

[8] Scalise, supra note 1, at 58 (citing Lawrence A. Frolik, “The Biological Roots of the Undue Influence Doctrine: What’s Love Got to Do With It?” 57 U. Pitt. L. Rev. 841, 852 (1996)) “It is almost inevitable that the number of undue influence claims will increase with the aging of the population. Part of the explanation for this phenomenon is that older people suffer greater instances of physical and mental decline than younger ones, which thus makes them more susceptible to undue influence.”

[9] Dominic J. Campisi, Evan D. Winet and Jake Calvert, “Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion,” 43 ACTEC L. J. 359, 361 (2018).

[10] See Model Rules of Prof’l Conduct Scope [15] (2019) “The Rules [of Professional Conduct] presuppose a larger legal context shaping the lawyer’s role.”

[11] Frolik, supra note 8, at 845, “The lower the mental capacity of the testator, the easier it is to convince a jury or court of the existence of undue influence.”

[12] Mary Joy Quinn et al., “Developing an Undue Influence Screening Tool for Adult Protective Services,” 29 J. Elder Abuse & Neglect 157, 158–59 (2017).

[13] See, e.g., In re Estate of Olson, 126 P. 171, 174 (Cal. Ct. App. 1912) “Soundness of mind and body does not imply immunity from undue influence”; 27 Am. & Eng. Ency. Law, “Undue Influence,” at 497 (2d ed. 1895) “Undue influence is quite distinct from testamentary capacity.” Cf. ABA Commission on Law and Aging, Legal Issues Related to Elder Abuse: A Pocket Guide for Law Enforcement 24 (2015) “A person with decision-making capacity can be unduly influenced, but it is easier to commit … on someone who has diminished capacity.”

[14] Campisi et al., supra note 9, at 363 (citing George A. Akerlof and Robert J. Shiller, Phishing for Phools: The Economics of Manipulation and Deception 1 (2015)).

[15] Restatement (Third) of Property: Wills and Other Donative Transfers §8.3 cmt. e, at 145 (Am. Law Inst. 2003) [hereinafter Restatement (Third) Property]. The utility of undue influence in the American law of donative transfers is clearest when viewed in comparison with foreign civil law systems, such as France and Germany, which contain no direct analog. See generally Scalise, supra note 1.

[16] In re Estate of Sneed, 1998 OK 8, ¶17, 953 P.2d 1111 (citing Hubbell v. Houston, 1967 OK 138, 441 P.2d 1010).

[17] Id. at ¶17.

[18] In re Estate of Samochee, 1975 OK 143, ¶47, 542 P.2d 498 (defining undue influence as when a “testator has been induced to execute instrument which in form is his will, but which in reality expresses [a] testamentary disposition he would not have made voluntarily”). See also Restatement (Third) Property §8.3(b), at 143.

[19] See generally Campisi et al., supra note 9.

[20] See e.g., In re Cook’s Estate, 1918 OK 569, ¶12, 175 P. 507 (noting will contestant “not confined to the facts which he may be able to adduce, but is entitled to all the natural inferences which may be derived from established facts”).

[21] See 1 R. Robert Huff, Oklahoma Probate Law and Practice §6.2, at 89 (3d ed. 1995); Restatement (Third) Property §8.3 cmt. e, at 145.

[22] See Quinn et al., supra note 12, at 161–62.

[23] In re Estate of Holcomb, 2002 OK 90, ¶18, 63 P.3d 9 (citing In re Estate of Maheras, 1995 OK 40, ¶9, 897 P.2d 268).

[24] Id. at ¶31. Advice is deemed “independent” when the testatrix consults “fully and privately about [her] will with a person so dissociated from the stronger party that the advice may be treated as having been given impartially and confidentially.” Maheras, 1995 OK 40, ¶9.

[25] Maheras, 1995 OK 40, ¶11.

[26] Id. at ¶12.

[27] William M. McGovern Jr., “Undue Influence and Professional Responsibility,” 28 Real Prop. Prob. and Tr. J. 643, 644 (1994).

[28] See, e.g., In re Disciplinary Action Against Boulger, 637 N.W.2d 710 (N.D. 2001) (drafting attorney reprimanded for preparing will naming himself as contingent devisee); Attorney Grievance Comm’n v. Saridakis, 936 A.2d 886 (Md. 2007) (attorney violated Rule 1.8(c) by drafting will giving himself substantial bequest, even though attorney had a co-worker serve as “independent counsel”).

[29] Rule 1.1, Oklahoma Rules of Professional Conduct, 5 O.S. Ch. 1, App. 3-A [hereinafter “ORPC”]. See also Restatement (Third) of the Law Governing Lawyers §§0, 52 (Am. Law Inst. 2000) (noting a lawyer owes a client a duty to “pursu[e] the client’s lawful objectives in matters covered by the representation” with the “competence and diligence normally exercised by lawyers in similar circumstances”).

[30] See Hesser v. Central Nat’l Bank & Trust Co. of Enid, 1998 OK 15, ¶16, 956 P.2d 864 (quoting Fretwell v. Protection Alarm Co., 1988 OK 84, ¶6, 764 P.2d 149) (noting that obligation to help client execute a valid will is part of the attorney’s “common law duty to perform with care [and] skill”).

[31] In re Free’s Estate, 1937 OK 708, ¶12, 75 P.2d 476 (quoting McCarty v. Weatherly, 1922 OK 12, ¶25, 204 P. 632) “The proponents of a will [must] prove, not only the due execution of the will as provided by law, but that the instrument was in fact the free and voluntary act and will of the testatrix.”

[32] See 84 O.S. §43.

[33] Rule 1.1 cmt. 5, ORPC.

[34] See, e.g., Rathblott v. Levin, 697 F. Supp. 817 (D.N.J. 1988) (upholding complaint by devisee who alleged that drafter of will “was negligent in failing to firmly establish [the testator’s] testamentary capacity and free will,” thereby causing the devisee to incur substantial expenses in defending the will contest). But see Logotheti v. Gordon, 607 N.E.2d 1015 (Mass. 1993) (dismissing claim against lawyer for drafting will despite signs testator was incapacitated and using relative of alleged influencer as interpreter in communicating with testator).

[35] Rule 1.6 cmt. 2, ORPC.

[36] Rule 1.6, ORPC.

[37] Rule 1.6(b)(1)-(3), ORPC (emphasis added). All of the exceptions in Rule 1.6(b) are permissive, meaning an attorney is not required to disclose information in those situations.

[38] See Rule 1.14(b), (c), ORPC.

[39] See Rule 1.14 cmt 6, ORPC, “In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.” See also In re Eugster, 209 P.3d 435 (Wash. 2009) (stating a lawyer may take limited protective action if they reasonably believe client is under undue influence only if client is also suffering diminished capacity).

[40] Ronald D. Rotunda and John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility §1.14-1 (2013–14 ed.). Cf. ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 404 (1996) (noting lawyer’s mere belief client is exercising poor judgment does not warrant “protective action” under Rule 1.14).

[41] Rule 1.6(a), ORPC.

[42] Rule 1.0(e), ORPC.

[43] Rule 1.0 cmt. 6, ORPC.

[44] Cf. Rule 1.14(a), ORPC (mandating that when dealing with a client who has diminished capacity, the lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship”).

[45] See 43A O.S. §10-104.

[46] See N.H. Bar Ass’n Ethics Committee Advisory Op. 2014-15/5, “The Lawyer’s Authority to Disclose Confidential Client Information to Protect a Client from Elder Abuse or Other Threats of Substantial Bodily Harm.”

[47] Rule 1.7, ORPC.

[48] Rule 1.7 cmt. 1, ORPC.

[49] See generally ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 434 (2005).

[50] Rule 2.1, ORPC.

[51] The rules generally proscribe accepting payment from third parties because “third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing.” Rule 1.8 cmt. 11, ORPC. See also id. cmt. 12 (noting, “A conflict of interest exists [under Rule 1.7(a)] if there is significant risk that the lawyer’s representation of the client will be materially limited by … the lawyer’s responsibilities to the third-party payer”).

[52] See McGovern, supra note 27, at 665.

[53] Rule 5.4(c), ORPC.

[54] See Christensen v. Britton, 784 P.2d 908, 912 (Mont. 1989). See also In re Estate of Jessman, 554 N.E.2d 718 (Ill. App. Ct. 1990) (finding presumption of undue influence when devisee contacted attorney, drove testator to attorney’s office and was named guardian of testator).

[55] See, e.g., Holcomb, 2002 OK 90, ¶38 (citing as evidence rebutting presumption testimony that the testatrix alone “provided the dispositive terms of the will … outside of [the] presence” of the alleged influencer).

[56] Martin J. Ganderson and Jessica L. Mellington, Ethics: The Power of Attorney 8–15 (2006), available at https://bit.ly/3Nm72MM.

[57] Holcomb, 2002 OK 90, ¶18 (citing Maheras, 1995 OK 40, ¶9).

[58] ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 428, at 5 n.13 (2002) (citing Rule 1.4(b), which states, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”).

[59] 58 O.S. §43 (stating, “If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined”).

[60] See 58 O.S. §82 (requiring the provisions of a lost will to be “clearly and distinctly proved by at least two credible witnesses”).

[61] In re Estate of Overton, 417 N.W.2d 653, 658 (Minn. Ct. App. 1988). See also Bratton v. Owens, 1990 OK CIV APP 16, 794 P.2d 423 (rejecting undue influence claim based on attorney’s testimony); Langford v. McCormick, 552 So. 2d 964 (Fla. Dist. Ct. App. 1989) (relying on attorney’s testimony to refute undue influence); In re Estate of Kline, 613 N.E.2d 1329 (Ill. App. Ct. 1993) (relying on testimony of drafting attorney to find no undue influence); In re Estate of Gonzales, 775 P.2d 1300 (N.M. Ct. App. 1988) (rejecting presumption of undue influence because attorney drafted documents based on his conversations with decedent), cert. quashed, 769 P.2d 731 (N.M. 1989).

[62] Rule 3.7(a), ORPC, states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

[63] Rule 3.7 cmt. 1, ORPC. See also id. cmt. 2 (noting the risk of prejudice is heightened when a jury is involved).

[64] Rule 3.7(a)(1), (2), ORPC.

[65] Rule 3.7 cmt. 3, ORPC.

[66] Rule 3.7(a)(3), ORPC.

[67] See Texas Committee on Prof’l Ethics, Op. 439, 50 Tex. B.J. 617 (1987) (noting that because attorney who prepared will could have foreseen need for his testimony when accepting representation for will contest, facts do not give rise to an exception on grounds of undue hardship) (applying Rule 3.7 analog, DR 5-101).

[68] OBA Legal Ethics Committee, Advisory Op. 280 (1974).

[69] See, e.g., In re Estate of Seegers, 1986 OK CIV APP 21, 733 P.2d 418 (holding trial court should have disqualified attorney who prepared contested will from representing party in probate) (applying Rule 3.7 predecessor, DR 5-101). See also In re Estate of Waters, 647 A.2d 1091 (Del. 1994) (holding trial court committed “plain error” by allowing an attorney to appear in a will contest both as trial advocate for estate and as necessary witness testifying on contested issues of undue influence and testamentary capacity); Eccles v. Nelson, 919 So. 2d 658 (Fla. App. 2006) (disqualifying attorney who prepared will under Rule 3.7 because his testimony “concern[ed] crucial issues” of capacity, undue influence, and genuineness of signature).

[70] McGovern, supra note 27, at 681.