The Relative Exception

Rule 1.8(c) forbids a lawyer to solicit a substantial gift from a client, including a testamentary gift, and to prepare an instrument that gives the lawyer or a person related to the lawyer a substantial gift. One qualification at the end of the rule governs both prohibitions: neither applies “unless the lawyer or other recipient of the gift is related to the client.”¹

The qualification looks in a different direction from the ban. The lawyer’s ties decide whether a gift falls inside the ban, because a gift to the lawyer or to someone related to the lawyer is what triggers it. The exception asks whether the lawyer or other recipient is related to the client. Two questions follow: who counts as related, and what the exception leaves unanswered. It answers the question under Rule 1.8(c). It does not answer whether the gift was the product of overreaching.

The rule defines its own term. 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.² The definition has three layers: the named relatives, any other relative, and an individual whose bond with the lawyer or the client is close and familial. The word include keeps the list open.

One definition serves both sides of the rule. Applied to the lawyer, it marks the lawyer’s circle, the people whose receipt of a gift the rule treats as the lawyer’s own. Applied to the client, it marks the exception. A single person can stand on both sides. A lawyer’s spouse who is also the client’s niece is related to the lawyer, which puts the gift inside the ban, and related to the client, which lifts the ban.

The design of the rule suggests why kinship with the client matters. The comments explain the concern behind the ban: before a client makes a gift to his or her attorney, the client should have the detached advice of an independent attorney.³ A tie that predates the representation explains a gift without reference to the lawyer’s advice, so the concern weighs less when the recipient belongs to the client’s family. The third layer of the definition extends the same logic to a person the client treats as family in fact.

The last layer of the definition gives students the most trouble. Questions on it usually describe a long, warm professional relationship and ask whether it is a close, familial relationship. Both words carry weight: the bond must be close, and it must resemble family in the way the people live and treat one another. Friendliness and trust cannot suffice, because trust is what every lawyer-client relationship runs on. If trust satisfied the exception, nearly every client would qualify, and the ban would seldom apply to the clients it was written to protect.

Hypothetical Illustration

A lawyer has represented a client for twenty years, and the two have dinner together several times a year. The lawyer prepares the client’s will, which leaves the lawyer a lakefront lot. The friendship is real and the client trusts the lawyer completely, but the tie is a professional relationship that grew warm. It is not a close, familial relationship, so the exception is unavailable, and the drafting prohibition is violated if the lot is a substantial gift.

An elderly client took in a neighbor’s daughter and raised her from age six without formally adopting her. The daughter, now a lawyer, prepares his will, which leaves her the house. The two have kept a parent-and-child relationship for decades. She is an individual with whom the client maintains a close, familial relationship, so the exception applies.

The two scenes differ in the quality of the tie. The first lawyer knows the client at least as well as the second does, and both are trusted, so familiarity and trust cannot be what moves the answer. Blood and marriage are not required either, since the second lawyer has neither.

The current definition dates from 2002. That amendment added the solicitation clause and expanded the exception, which had applied where “the client is related to the donee,” by defining “related” to include the listed relatives and individuals with a close, familial relationship.⁴ Study materials that quote the exception as applying “where the client is related to the donee” use the earlier phrasing.⁵ The current text controls any analysis today.

Exam Analysis Steps

Because the exception asks about relatedness to the client while the elements of the violation ask about the lawyer, run it as a separate pass after the other elements are in place.

Identify who receives the gift: the lawyer when the lawyer takes it, or the other person when someone else does.
Check whether that person is the client’s spouse, child, grandchild, parent, or grandparent.
If not, ask whether the person is another relative of the client.
If not, ask whether the client or the lawyer maintains a close, familial relationship with the person, which takes a bond like that of family and not a warm professional friendship.
If none of these ties exists, treat the exception as unavailable, so the solicitation or drafting prohibition applies whenever its other elements are met.

The kinship can run through either person: the lawyer-son is himself the client’s child, while the lawyer’s spouse who is the client’s niece qualifies as the recipient. Steps two and three are usually quick. Step four is where an exam question hides its contested facts.

Limits of the Exception

A lawyer who fits the exception has answered one question: whether Rule 1.8(c) forbids the solicitation or the drafting. A second question arises whenever someone challenges the gift: whether the client’s decision was free or the product of overreaching. The two questions use different tests. The disciplinary rule asks only whether the recipient is related to the client, which a court can settle from the family tree. Undue-influence law asks how the gift came about, which a court can settle only by examining the relationship and the circumstances in which the document was made.⁷

Kinship makes it likelier that a gift reflects a bond that predates the representation, but it does not remove the risk of overreaching. A child with access to a failing parent and control of the drafting can pressure that parent as effectively as a stranger can. A bright line suits discipline, because a lawyer must know before acting whether the conduct is allowed, so undue-influence law carries the fact-sensitive work.

The rule’s text says nothing about how large a share a related drafter may take. Courts nonetheless give kinship some weight: one upheld a trust drafted by the settlor’s grandson that gave the grandson a remainder, finding no presumption of undue influence because the two were related.⁸ Even so, a lawyer’s kinship to the client is not an absolute defense to a claim of undue influence.⁹ The Restatement writes a limit into its own version of the exception, which applies only if “the gift is not significantly disproportionate to those given to donees similarly related to the donor.”¹⁰ The Model Rule text has no such limit, so disproportion does its work on the undue-influence side.

In both scenes the recipient is the client’s child, so the disciplinary rule is silent. What moves the answer is the size of the drafter’s share compared with the shares of similarly related people, and that fact matters on the undue-influence track, not the disciplinary one.

The Lipper case shows the second track working against a related drafter. Frank, a lawyer, drafted the will of his mother, the testatrix, and took under it; the will cut out the issue of a predeceased son. Under the typical statutory presumption of undue influence, an attorney who drafts a will and takes under it is a classic case, yet Frank avoids the presumption because he is related to the testatrix. Whether a judicial presumption arises depends on whether the jurisdiction applies the traditional approach or the Restatement approach.¹¹ Under the Restatement (Third) of Property, a presumption of undue influence arises if there was a confidential relationship between the defendant and the testator and suspicious circumstances are present.¹²

The two approaches diverge on Frank. The Restatement approach arguably raises the presumption: he stood in a confidential and fiduciary relationship with his mother, and arguably there are suspicious circumstances, since cutting out the predeceased son’s issue is an unnatural and unfair disposition, Frank was active in procuring and executing the will, and he benefited disproportionately. The more traditional and narrower version arguably does not, because Frank had a confidential relationship but it is questionable whether his mother was of weakened intellect.¹³ Kinship removed the statutory presumption and left a contest that turns on the jurisdiction’s test.

A friend stands on the other side of the line. Friendship alone does not bring a person within the exception for relatives, although some courts have upheld wills where the drafter-devisee and the testator were close friends, and the Restatement treats “other natural object[s] of the client’s generosity” like relatives.¹⁴ Under the current text of Rule 1.8(c), a friend fits the exception only when the bond is a close, familial relationship, which friendship by itself does not show.¹⁵

The two tracks can also come apart. When a lawyer drafted a will for a family friend that included a devise to himself, the court found no undue influence, yet the lawyer was reprimanded for violating a disciplinary rule.¹⁶ A gift that survives challenge can still cost the lawyer, because the validity of the gift and the lawyer’s license are decided under different tests.

Closeness that falls short of the exception can still matter, but only at the sanction stage. A lawyer who violated Model Rule 1.8(c) was suspended for only 60 days, and his “very close relationship” with the testator was cited as a mitigating factor.¹⁷ In that decision the court first found misconduct, then accepted the 60-day suspension on which the respondent and the Commission agreed. It listed among the mitigating factors his recognition that his conduct was wrong, his very close relationship with the decedent, and his 40 years of unblemished practice.¹⁸ The closeness reduced the sanction. It did not prevent the finding of a violation.

Exam Analysis Steps

Because the disciplinary rule and undue-influence law ask different questions, run a gift to a drafting lawyer through both tests and do not stop at the first.

Decide whether the recipient is related to the client under the current definition: a spouse, child, grandchild, parent, grandparent, other relative, or an individual with whom the lawyer or the client maintains a close, familial relationship.
If the recipient is related, conclude that Rule 1.8(c) does not forbid the solicitation or the drafting, and end the disciplinary analysis there.
Turn to undue influence and ask, under the jurisdiction’s traditional or Restatement test, whether a confidential relationship exists together with suspicious circumstances, such as a share out of proportion to what similarly related people receive, the drafter’s active role in procuring the instrument, or an unnatural disposition.
If the recipient is only a friend, treat the exception as unavailable unless the bond is close and familial, and treat any very close relationship as mitigation of the sanction, not a defense.

Step three is where a related drafter’s real exposure lies, since the exception has done all it can by step two.

The Relative Exception

Who Counts as Related

Limits of the Exception

Endnotes21