Gifts the Rule Permits

Rule 1.8(c) forbids a lawyer to do two things: solicit a substantial gift from a client, including a testamentary gift, and prepare for a client an instrument that gives the lawyer, or a person related to the lawyer, a substantial gift. The prohibition lifts when the lawyer or other recipient is related to the client.¹ Both verbs describe conduct the lawyer starts. Asking for a gift and drafting the document that delivers it are the two ways a lawyer can steer a transfer, and the rule aims at that steering. It says nothing about a gift the client volunteers, and it never mentions appointments as executor or trustee. Those two gaps mark the rule's edges.

A gap in Rule 1.8(c) is not a safe harbor. The law of undue influence still applies to client gifts, and the general conflict rule still applies to fiduciary appointments, so a benefit the rule leaves alone can draw scrutiny on other grounds. The sorting question for any fact pattern in this area is what the lawyer actually did. If the lawyer asked for the gift or wrote the instrument that carries it, Rule 1.8(c) governs. If the client offered the benefit and the lawyer did neither, the analysis moves to those other sources. Client-initiated gifts come first, then fiduciary appointments.

Client-Initiated Gifts

A gift that the client volunteers, that the lawyer never requested, and that the lawyer does not write into a document sits outside both clauses of Rule 1.8(c). Florida's comment to its version of the rule shows how that silence is read. A lawyer may accept a gift from a client if the transaction meets general standards of fairness and the lawyer does not prepare the instrument bestowing the gift, and a simple present given at a holiday or as a token of appreciation is permitted.² Florida words its exception for non-substantial gifts differently from the Model Rule, so borrow its logic and leave its exact language behind.

The permission for small gifts tracks risk. The rule guards against a lawyer converting a client's trust into property the client would not otherwise have given. A bottle of wine and a card after a closing give a lawyer nothing worth bending advice for, and disciplining acceptance would punish conduct that threatens no one. The Model Rule's text reaches only a substantial gift.

A substantial gift that the client offers is a harder case, and two separate questions run side by side. Florida's comment says that when a client offers a more substantial gift, the rule does not prohibit the lawyer from accepting it, although the client may be able to void the gift under the doctrine of undue influence, which treats client gifts as presumptively fraudulent.³ The disciplinary question asks what the lawyer did, and a lawyer who neither asked for the gift nor drafted the instrument has done nothing the rule forbids. The property question asks how the gift came about, and it starts from suspicion because the concern behind the rule is overreaching and imposition on clients. Client gifts that fall outside a drafting prohibition therefore remain open to challenge for undue influence.⁴ The disciplinary rule targets transfers the lawyer drives, and property law gives the client a remedy against transfers improperly induced.

The permission depends first on the gift being the client's own idea. Because of concerns about overreaching, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, unless the lawyer is related to the client.⁵ A hint of that kind turns a volunteered gift into a solicitation, the first prohibition in Rule 1.8(c). Who first raised the subject therefore decides which analysis applies, and a client's warm expression of gratitude does not settle the point.

The permission depends second on who writes the document. If carrying out a substantial gift requires a legal instrument such as a will or a conveyance, the client should have the detached advice another lawyer can provide, and the lawyer should advise the client to seek independent counsel.⁶ The drafter chooses the words and shapes what the client understands the document to do. The lawyer who would receive the gift cannot also be the person who explains it, and the client's own initiative leaves that problem untouched.

Both versions begin with the same generous client and the same $200,000. The fact that moves the answer is the lawyer's role in producing the instrument. Even the safe path under the disciplinary rule leaves a lawyer who accepts a large gift open to a challenge under property law.

The Restatement of the Law Governing Lawyers takes a stricter line than the Model Rule's text. It bans, with exceptions, both preparing an instrument that effects a gift from a client to the lawyer and accepting such a gift.⁷ Where a jurisdiction follows that approach, the permission described here narrows, so the controlling rule is the one the jurisdiction has adopted.

An exam stem about a substantial gift the client offers invites two opposite errors. The first is to conclude that any substantial gift violates Rule 1.8(c), which forgets that the rule is directed at soliciting and drafting. The second is to conclude that a gift outside the rule is secure, which forgets that undue influence can undo it. The sound analysis asks who raised the gift and who prepared the instrument, and then flags the undue-influence risk.

Fiduciary Appointments

Both clauses of Rule 1.8(c) turn on the word gift, so a will or trust that names the drafting lawyer as executor, personal representative, or trustee raises a threshold question: is the position a gift at all? An executor is the person a will names to collect the estate's assets, pay its debts, and distribute what remains. A personal representative is the broader label for anyone who administers a deceased person's estate, and a trustee holds and manages property for the beneficiaries of a trust. Florida's comment answers the threshold question directly: the gift rule does not prohibit a lawyer from seeking to have the lawyer, or a partner or associate, named as personal representative of the client's estate or to another potentially lucrative fiduciary position.⁹ A lawyer may not ask a client for a bequest, yet the same lawyer may ask to be considered as executor. The difference lies in what each position is.

A gift passes to the lawyer for nothing. Fiduciary compensation arrives only after the lawyer does the work of the office, and the lawyer must earn the commission or fee under court supervision.¹⁰ A gift has neither of those safeguards, which is why the gift prohibition is the wrong tool here. A flat ban would also sweep in clients with sensible reasons for choosing the lawyer who drafted the instrument, since that lawyer already knows the family, the assets, and the client's wishes. The law treats the appointment as paid work.

Falling outside Rule 1.8(c) does not make the appointment conflict-free. Naming the drafter executor or administrator is not expressly prohibited, yet it is filled with conflict.¹¹ A lawyer advising a client on whom to name has a financial stake in the answer, because the lawyer, a partner, or an associate is paid if chosen. That stake gives the lawyer a reason to steer the client away from a bank, a relative, or another lawyer, and a client who relies on the lawyer to explain the options cannot easily see the tilt. Florida's comment therefore applies the general conflict-of-interest rule whenever there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client about the choice of a personal representative or other fiduciary.¹² An older formulation of the conflict rule, quoted in one court's footnote, asks the same question. Representation may not be materially limited by the lawyer's own interests unless the lawyer reasonably believes it will not be adversely affected and the client consents after consultation.¹³

Because the conflict falls under the general rule and not the gift rule, the client's informed consent can resolve it. Informed consent means that the client agrees after the lawyer has explained what the client needs to know in order to decide. Florida's comment says the lawyer should advise the client of the nature and extent of the lawyer's financial interest in the appointment and of the availability of alternative candidates for the position.¹⁴ Court supervision of the fee does not replace that step, and the lawyer should still advise the client of the potential conflict and seek the client's consent.¹⁵ The consent route fits because the lawyer's benefit is pay for services the client could buy from someone else. Once the client knows the stake and the alternatives, the client can compare the lawyer against other candidates and choose. The Model Rule's gift clause, as quoted above, contains no such consent exception.

An exam stem in which a lawyer drafts a will and names the lawyer as executor invites the answer violation of Rule 1.8(c), and that answer loses points because executor compensation is payment for services. The outcome turns on what the client was told.

Hypothetical Illustration

While preparing a client's will, a lawyer explains that an executor is paid from the estate, lists three options (a bank trust department, the client's sister, or the lawyer), and says what the lawyer would likely charge. The client asks questions and then names the lawyer. The appointment is permitted. Rule 1.8(c) is not engaged, and the general conflict rule is satisfied by disclosure of the financial interest and the alternatives followed by the client's informed consent.

A second lawyer, drafting another client's will, writes the lawyer's own name in as sole executor. The lawyer says nothing about the executor's pay and mentions no one else who could serve, and the client signs without knowing a choice existed. Rule 1.8(c) still does not bar the appointment. But this lawyer advised on the choice of fiduciary while holding a financial interest in the answer, and so is exposed under the general conflict rule.

Both lawyers sought the same appointment, and neither asked for a gift. The only fact that separates them is disclosure of the stake and the alternatives, and the consent that followed. That fact belongs to the general conflict rule, which is why the gift prohibition decides neither scene.

Exam Analysis Steps

A fiduciary appointment sits between the gift rule and the general conflict rule, so sort the facts by asking which body of law each part belongs to:

Identify whether the lawyer is seeking or accepting a position as executor, personal representative, or trustee, and treat the compensation as pay for services and not as a gift under Rule 1.8(c).
Conclude that Rule 1.8(c) does not bar the lawyer from seeking the appointment, or from preparing the instrument that names the lawyer, a partner, or an associate.
Ask under the general conflict rule whether there is a significant risk that the lawyer's interest in being paid will materially limit independent advice about whom the client should choose.
If that risk exists, require the client's informed consent after the lawyer explains the nature and extent of the lawyer's financial interest and the availability of alternative candidates.
Do not treat earned compensation or court supervision as a substitute for that disclosure and consent.

Step three is where exam facts are usually contested. A lawyer who names no alternatives and says nothing about pay presents the risk at its sharpest, while a lawyer who lays out the options and the cost has handled the risk at the stage where it arises.