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Prof Responsibility • Loyalty
PR#030
Legal Definition
In California, a lawyer may not induce a substantial gift from a client or prepare an instrument that gives the lawyer, or a person related to the lawyer, any substantial gift from a client (including a testamentary gift), except when the client is related to the donee. When the lawyer prepares such an instrument, it creates a conclusive presumption of undue influence that invalidates the gift.
Plain English Explanation
ABA rules say lawyers can't "ask for" big gifts, but California's rules say they can't "persuade" clients to give big gifts. California's wording covers more situations, including times when a lawyer hints at wanting a gift without directly asking.
Both sets of rules agree that lawyers shouldn't write legal documents, like wills, that give big gifts to themselves or their family members. This stops lawyers from using their legal know-how to benefit themselves instead of their clients. Both rules make an exception when the client is related to the lawyer or the person getting the gift. This makes sense because gifts between family members are normal and usually not because of pressure from the lawyer.
A big difference is what happens if a lawyer breaks the rule. In California, if a lawyer writes a legal document giving themselves or their family a big gift, the law automatically assumes the lawyer unfairly influenced the client. This means the gift is not valid. The national rules don't spell this out so clearly.
Both sets of rules agree that lawyers shouldn't write legal documents, like wills, that give big gifts to themselves or their family members. This stops lawyers from using their legal know-how to benefit themselves instead of their clients. Both rules make an exception when the client is related to the lawyer or the person getting the gift. This makes sense because gifts between family members are normal and usually not because of pressure from the lawyer.
A big difference is what happens if a lawyer breaks the rule. In California, if a lawyer writes a legal document giving themselves or their family a big gift, the law automatically assumes the lawyer unfairly influenced the client. This means the gift is not valid. The national rules don't spell this out so clearly.
Hypothetical
Hypo 1: Bob, a California lawyer, has been helping Sam with his estate planning for years. Sam has no close family and tells Bob he'd like to leave him $100,000 in his will as thanks for all his help. Bob says, "That's very generous. I'd be happy to draft that into your will for you." Result: Bob has violated the California rule. By agreeing to draft a will that includes a substantial gift to himself, he's created a situation where there's a conclusive presumption of undue influence. The gift would be automatically invalid.
Visual Aids
Related Concepts
Are lawyers allowed to have sex with their clients?
Can an attorney continue to represent a client if a conflict exists?
Does representing clients with inconsistent positions violate the lawyer's Duty of Loyalty?
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How do the California rules differ from the ABA when it comes to a lawyer accepting compensation from a party other than their client?
In assessing a conflict of interest, what is a concurrent conflict?
In assessing the Duty of Loyalty, what's the difference between an actual conflict and a potential conflict?
In California, are lawyer's allowed to have sex with their clients?
In California, how can a lawyer limit their malpractice liability with a client?
In California, how must a lawyer advise their client to seek independent counsel when dealing with potential financial conflicts?
In California, may a lawyer represent an insurance company and its policyholder as joint clients?
In California, what are the restrictions related to lawyers acquiring the media rights of their clients?
In California, when may a lawyer loan money to a client?
What are some common issues that occur when a lawyer represents multiple clients in the same matter?
What are the most common types of conflicts of interest that involve a lawyer's own interest?
What are the restrictions related to lawyers acquiring the media rights of their clients?
What are the restrictions related to lawyers receiving gifts from their clients?
What is an imputed conflict and how can it be resolved?
What is required in order for a lawyer to accept compensation from a party other than their client?
What is required in order for a lawyer to avoid a financial conflict with a client?
What is the Duty of Loyalty?
When does the general rule of imputed conflicts NOT apply?
When may a lawyer appear as a witness in a matter where they represent a party?
When may a lawyer loan money to a client?
When may there be a conflict of interest with a former client?
