Q: Dear Ethics Lawyer, My best friend asked me to prepare an estate plan for her giving various family members substantial gifts. With gratitude for our friendship she also wishes to bequeath my daughter, her goddaughter, a first edition book of philosopher Jeremy Bentham, whom she knows is one of her favorites. She will sign a written waiver of any conflict and confirming that she had the opportunity to seek advice of other counsel. May I do this under the ethical rules?
A: First, your friend and daughter have good taste in 18th Century Utilitarian philosophers. This question implicates Model Rule 1.8(c), which prohibits a lawyer from preparing a document for a client that gives the lawyer or a person related to the lawyer in a “close familial relationship” (which includes children, among other relationships) “any substantial gift” unless the lawyer or recipient is related to the client. Is the first edition Bentham book a “substantial gift”? Most likely, if it has a value more than a token amount. If so, does the “goddaughter” relationship fall within the “related to the client” exception? This exception is not clarified in Comments to the rule and is less specifically defined than the “close familial relationship” used earlier in Rule 1.8(c). However, the Ethics Lawyer does not recommend relying on it as meeting the exception; you should have another lawyer prepare these documents.