Consent and Independent Counsel

Consent and Independent Counsel

Most conflict rules let a client’s informed consent cure the problem, and Rule 1.8(c) does not. It forbids a lawyer to solicit any substantial gift from a client, including a testamentary gift, and to prepare for a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer or other recipient of the gift is related to the client.¹ The sentence contains one exception, and the exception is kinship. No clause excuses the lawyer because the client agreed, and none excuses the lawyer because another lawyer advised the client. A student who expects the usual consent cure will look for such a clause and not find it. This section explains why. The Model Rule comes first, with its reasons for withholding both cures. Maryland, which wrote one of them into its own rule, follows.

The Model Rule: Only Kinship Excepts

Under the Model Rule, only a family relationship rescues an otherwise forbidden gift. A lawyer who solicits a substantial gift from an unrelated client violates the rule by soliciting. A lawyer who drafts an instrument giving the lawyer or a relative of the lawyer a substantial gift violates it by drafting. Nothing the client says before or after either act changes the result.²

The rule’s neighbors confirm the reading. Rule 1.8(a), on business transactions with clients, is a consent-plus rule: the client’s consent is required, and so is a further safeguard, namely that the terms be fair and reasonable to the client. The gift provision belongs instead to a group of non-consentable conflicts, which the client’s agreement cannot cure. The group also includes the rules on obtaining media rights in the client’s story, providing financial assistance to a client in litigation, and acquiring a proprietary interest in the subject of the representation.³

The reason lies in how consent normally works. Consent cures an ordinary conflict because the client, with the facts in hand, weighs a risk to the client’s own interests from an independent position. A gift conflict denies the client that position, because the person asking for agreement is the person who profits from it. The lawyer would explain the conflict, draft the acknowledgment, and present it in the same meeting where the lawyer is advising on the gift. A signature obtained that way shows only that the client was willing to defer once more. The rule therefore accepts one explanation for the gift that does not depend on the lawyer’s professional position: a family tie that exists apart from the representation.

Advising the client to consult another lawyer fails as a cure for a plainer reason, which is that the rule lists no such exception. A recommendation made after the lawyer solicited the gift does not undo the solicitation, and a recommendation the client ignores does not undo the drafting that follows. The recommendation keeps its value as practice. When a client independently wants to make a substantial gift to the lawyer, the safer course is for another lawyer to prepare the instrument, because the rule reaches only the lawyer who solicits or prepares. The referral protects the lawyer by removing the lawyer from the transaction, and it does not excuse a lawyer who stays in.

An exam stem that supplies a long disclosure, a signed acknowledgment, and a client of sound mind is built to tempt the answer that consent cured the problem.

Only one change in the facts would alter the result, and it is the one the rule names. If the client were the lawyer’s aunt, the relatedness exception would lift the ban and no form would be needed. In both versions the signature does no work, and the family tie does all of it.

Maryland: Independent Counsel as a Second Exception

Not every jurisdiction copied the Model Rule’s single exception. Maryland’s highest court has described its version of Rule 1.8(c) as unique among the forty-five jurisdictions that had adopted a version of the ABA rule, and it adopted an additional exception for situations where the client is represented by independent counsel in connection with the gift.⁵ A footnote to a Maryland majority opinion quotes the rule’s text in pertinent part. It bars a lawyer from preparing an instrument giving the lawyer, or the lawyer’s parent, child, sibling, or spouse, a substantial gift from a client, except where the client is related to the donee or is represented by independent counsel in connection with the gift.⁶ The Model Rule has the first exception only.

The committee that recommended the rule to the court split over the second exception. Two of its seven members thought that gifts of this kind, except where client and lawyer are related, should be absolutely prohibited because of the potential for harm. The majority thought that requiring independent counsel was adequate protection, and that an absolute prohibition would be impractical and unnecessary and would unfairly restrict the client’s donative intent.⁷ Both sides saw the same danger and differed over whether a cure existed. The majority’s cure replaces the conflicted adviser with an unconflicted one, so that the client hears about the gift from a lawyer who gains nothing from it.

The exception is narrow. The court stressed that even this less stringent form remains an absolute prohibition against substantial transactions outside the two limited exceptions.⁸ Its weight falls on the word independent. The quoted text does not define the term, but the majority’s reasoning shows what it must mean: counsel with no stake in the gift. A lawyer in the drafting lawyer’s own firm shares the drafter’s financial and professional interest in the client relationship, so advice from that colleague is the same conflict at another desk. The representation must also be in connection with the gift, which means the independent lawyer advises the client on the gift itself.

A bar-exam stem that mentions outside counsel therefore has two possible answers, and the governing rule decides which is right.

On the exam, apply the Model Rule unless the question states that a particular state’s rule governs. A mention of client consent changes nothing under either version. A mention of independent counsel requires you to ask first which rule applies. Under the Model Rule it changes nothing. Under a Maryland-type rule you must then ask whether the counsel was truly independent, meaning a lawyer outside the drafting lawyer’s firm who represented the client in connection with the gift. Recommending outside advice is good practice under every version, so an answer choice that praises the lawyer for making the recommendation may be accurate as advice and still say nothing about whether the rule was satisfied.