Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent 4th DCA Opinion which confirmed that substantial gifts to a lawyer in a testamentary instrument which violates Bar Rule 4-1.8(c) are not void per se; however, such gift create a rebuttable presumption of undue influence. The case is Agee v. Brown, — So.3d —, 2011 WL 5554833 (Fla. 4th DCA, November 16, 2011).
As background, a Florida lawyer prepared a will, trust, and deed for a client (the decedent) which transferred the remainder interest in an enhanced life estate to the lawyer and his spouse. A Bar complaint was filed against the lawyer. The lawyer subsequently admitted that he violated Bar Rule 4-1.8(c) and agreed to a 90 day suspension to resolve the Bar discipline case. That case is The Florida Bar v. Agee 59 So.3d 109 (Fla. 2011).
The lawyer and his spouse (who would also have received a substantial gift through the instruments) filed a petition with the probate court to revoke the most recent will of the decedent and enforce a prior will, which provided for the substantial gifts. Mr. Brown, the personal representative, argued that the prior will was void as against public policy since the instruments providing the substantial gifts to the lawyer and his spouse violated Bar Rule 4-1.8(c). The Bar Rule is below:
(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of 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. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.
The trial court considered the arguments and issued an order dismissing the petition based on a lack of standing. The court reasoned that the prior will was void as against public policy since the lawyer had violated Bar Rule 4-1.8(c) by drafting the instruments which left substantial gifts to him and his spouse.
The 4th DCA opinion held, inter alia, that the Florida Probate Code does not provide an automatic exclusion under these circumstances; therefore, the fact that the lawyer drafted the deed did not make the instruments per se void; however, the circumstances created a rebuttable presumption of undue influence. The opinion concluded that the lawyer and his spouse had standing under the prior will to petition for the revocation of the decedent’s last will and reversed and remanded the case to the trial court for further proceedings.
Bottom line: the Bar Rule prohibits lawyers from preparing instruments which provide that the lawyer will receive a substantial gift. The question is whether the lawyer should then try to enforce the substantial gift provision in probate court after being found guilty of violating the Bar Rule. Just asking…
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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