## Facts

- Two sibling attorneys practiced together and handled substantial probate work.
- Over a multi-year period, many wills they drafted contained clauses directing the executor to employ one of them to probate the estate, and some named a lawyer or a close family member as executor/executrix or co-executor.
- The State relied largely on the high frequency of these clauses to argue the lawyers must have suggested or solicited their own future employment or fiduciary appointments when drafting the wills.
- The lawyers denied solicitation and presented testimony that clients requested the clauses and appointments; evidence also indicated similar clauses were used by other local attorneys.
- A referee in the disciplinary proceeding found no proven ethical violation, while cautioning that such clauses are undesirable because they can suggest solicitation or create conflicts.

## Issues

1. Whether including will provisions directing the executor to retain the drafting lawyers (or appointing them or a family member as fiduciary) constituted unethical solicitation on this record.
2. Whether statistical evidence showing a high percentage of such clauses, without specific proof of solicitation, was sufficient to establish professional misconduct warranting discipline.

## Decision

- The court declined to find professional misconduct and imposed no discipline.
- The court accepted the referee’s determination that solicitation was not proved by the evidence presented.
- The court strongly disapproved the practice of inserting attorney-employment (and related fiduciary-appointment) clauses because it may imply solicitation or create conflicts of interest.

## Legal Principles

- Solicitation of professional employment is unprofessional, including solicitation by personal communication or interview.
- Attorney discipline requires proof of misconduct; a high incidence of attorney-employment clauses, standing alone, does not compel a finding of solicitation.
- Referee fact-finding is given substantial weight in disciplinary review, though the court retains ultimate authority over discipline.
- Will provisions directing retention of the drafting lawyer or naming the lawyer or close relatives as fiduciaries raise serious ethical concerns and may create an appearance of solicitation or a conflict if not shown to reflect the client’s independent choice.

## Conclusion

The court dismissed the disciplinary complaint because the State’s primarily statistical showing did not establish actual solicitation, while cautioning that drafting wills to secure the drafter’s future employment or fiduciary roles is ethically suspect and should be avoided absent clear client-initiated selection.


State v. Gulbankian, 54 Wis. 2d 605, 196 N.W.2d 733 (Wis. 1972)