## Facts

- A client retained an Ohio attorney to probate her sister’s estate; the probate matter lasted several months and involved repeated office visits by the client.
- During this period, the client discussed her own estate plan with the attorney and stated she intended to make a bequest benefiting the attorney’s minor son.
- The attorney suggested the client consider involving another attorney but did not require independent counsel.
- The attorney drafted the client’s will, which the client executed; it named the attorney and his son as the sole beneficiaries and named the attorney as executor.
- Before the client’s death, she also placed substantial funds into joint and survivorship accounts with the attorney, resulting in a potential transfer of more than $200,000 outside probate.
- The local bar association filed disciplinary charges; after hearing, the disciplinary board found misconduct and recommended a six-month suspension.

## Issues

1. Whether an attorney violates Ohio professional-responsibility standards by preparing a client’s will that makes the attorney and the attorney’s family principal beneficiaries, without insisting the client obtain independent counsel.
2. Whether a six-month suspension adequately protects the public and the profession given the magnitude of the lawyer’s benefit and the surrounding circumstances.

## Decision

- The Supreme Court of Ohio adopted the disciplinary board’s findings that the attorney committed misconduct.
- The court concluded the attorney failed to comply with EC 5-5 by not insisting on independent counsel when the client’s will substantially benefited the attorney and his son.
- The court held the conduct adversely reflected on the attorney’s fitness to practice law in violation of DR 1-102(A)(6).
- The court increased the sanction from a six-month suspension to a one-year suspension and taxed costs to the attorney.

## Legal Principles

- A lawyer should not suggest being named a beneficiary in a client’s will; if the client insists on such a bequest, the lawyer should insist the client obtain independent counsel to prepare the instrument (EC 5-5).
- Failure to require independent counsel when the lawyer stands to receive a substantial testamentary benefit may constitute conduct adversely reflecting on fitness to practice law (DR 1-102(A)(6)).
- Attorney discipline may be imposed based on the serious conflict risk and public appearance created by self-interested estate-planning representation, even without proof of actual fraud or undue influence.
- Sanctions may be increased when the benefit is substantial, the attorney-client relationship is brief, and the record lacks independent corroboration of the client’s intent.

## Conclusion

The Ohio Supreme Court disciplined an attorney for drafting and supervising execution of a will that made the attorney and his son the sole beneficiaries without insisting on independent counsel, holding the conduct violated EC 5-5 and DR 1-102(A)(6) and warranted a one-year suspension.


Mahoning Cnty. Bar Assn. v. Theofilos, 36 Ohio St. 3d 43, 521 N.E.2d 797 (Ohio 1988)