Markman, C.J. (for affirmance).
At issue is whether the rebuttable presumption of undue influence is applicable when the decedent's attorney breaches Michigan Rule of Professional Conduct (MRPC) 1.8(c), which generally prohibits an attorney from preparing an instrument giving the attorney or his or her close family a substantial gift. Appellants argue that a breach of MRPC 1.8(c) automatically renders an instrument void, while the appellee attorney argues that, rather than an invalidation of the instrument, a rebuttable presumption of undue influence arises in these circumstances. After considering the applicable provisions of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and the underlying principles of probate law, it becomes clear to us that a rebuttable presumption applies to these circumstances. And, as we will explain, creating a new per se rule as appellants advocate would not only be contrary to the fundamental principles of probate law and longstanding precedents of this state but would also run afoul of EPIC. Moreover, the adoption of MRPC 1.8(c) has no effect on this conclusion because a breach of this rule, like breaches of other professional conduct rules, only triggers the invocation of the attorney disciplinary process; it does not breach the statutory law of EPIC. For these reasons, we conclude the Court of Appeals correctly held that, in the instant circumstances, existing statutes and caselaw give rise only to a rebuttable presumption of undue influence.
On August 13, 2010, the decedent, Robert Mardigian, executed an amended trust that was prepared by appellee Mark Papazian, and on June 8, 2011, the decedent executed a will prepared by Papazian. The amended trust and will operated to leave the bulk of the decedent's estate to Papazian, who was a close friend of the decedent, and to Papazian's children. On January 12, 2012, the decedent died.
Following the decedent's death, Papazian filed an action in the probate court and sought to introduce the amended trust and will. Appellants, who consist of the decedent's brother, two nephews, two nieces, and girlfriend, challenged the introduction of these documents, moving for summary disposition and requesting that the probate court void all gifts to Papazian and his children as a matter of law. Specifically, they argued that the gifts were contrary to public policy under MRPC 1.8(c).
Papazian appealed, arguing that Michigan did not recognize a per se bar on testamentary gifts to unrelated attorneys and that a breach of MRPC 1.8(c) supplied a basis only for invoking the attorney disciplinary process, not for automatically voiding a trust or will. In a split decision, the Court of Appeals reversed the probate court's order granting summary disposition in favor of appellants. Relying on this Court's decision in In re Powers' Estate, 375 Mich. 150, 134 N.W.2d 148 (1965), the majority held that it was "required to remand for further proceedings, in which [Papazian] will be required to overcome the presumption of undue influence arising from the attorney-client relationship in order for the devises left to him and his family to be enforced." In re Mardigian Estate, 312 Mich.App. 553, 559, 879 N.W.2d 313 (2015). Pointing to the fact that Powers had been decided before this Court adopted MRPC 1.8(c), Judge SERVITTO dissented and would have affirmed the probate court's ruling that the gifts to Papazian and his family were void as against public policy. Id. at 570, 879 N.W.2d 313 (SERVITTO, J., dissenting).
Thereafter, appellants sought leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other action and directed the parties to address whether this Court should overrule Powers. In re Mardigian Estate, 499 Mich. 973, 880 N.W.2d 785 (2016). Subsequently, we granted the application for leave to appeal and directed the parties to address whether the rebuttable presumption set forth in Powers sufficiently protected a decedent and what role this Court's later adoption of MRPC 1.8(c) should play in the consideration of the issue. In re Mardigian Estate, 500 Mich. 1030, 897 N.W.2d 177 (2017).
A trial court's decision regarding a motion for summary disposition is reviewed de novo. Haksluoto v. Mt. Clemens Regional Med. Ctr., 500 Mich. 304, 309, 901 N.W.2d 577 (2017). In addition, the resolution of this case requires the interpretation of statutes, which we also review de novo. Id.
For the reasons that follow, both the historical framework under which we have analyzed gifts to attorneys and the current statutory framework, which codified the historical framework, require us to uphold Powers and its rebuttable presumption of undue influence, notwithstanding the later adoption of MRPC 1.8(c).
One of the underlying purposes and policies of EPIC is "[t]o discover and make effective a decedent's intent in distribution of the decedent's property," MCL 700.1201(b) (emphasis added), but this purpose long predates EPIC and is entrenched deeply within the history of this state's probate law. Discovering and giving effect to this intent has been viewed as the foundational standard of probate law for centuries. See, e.g., In re Blodgett's Estate, 197 Mich. 455, 461, 163 N.W. 907 (1917) (citing seventeenth-century jurist Lord Coke for the proposition that a testator's intent constitutes "`the polar star to guide judges in their determination'"). See also id. at 461, 163 N.W. 907, quoting 4 Kent,
At the same time, however, "`[u]ndue influence' exercised upon one who executes a will may become the basis for finding the will invalid if that influence took from the testator his right to freely exercise his discretion in disposing of his property." In re Sprenger's Estate, 337 Mich. 514, 521-522, 60 N.W.2d 436 (1953) (emphasis added).
Additionally, there are occasions in which a rebuttable presumption of undue influence can arise:
This rebuttable presumption has been said to apply to cases in which "a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative." In re Hartlerode's Estate, 183 Mich. 51, 60, 148 N.W. 774 (1914). For well over a century, this rebuttable presumption has been applied to circumstances in which an attorney drafts a will providing that attorney with a gift from a client. See, e.g., In re Bromley's Estate, 113 Mich. 53, 54, 71 N.W. 523 (1897) ("[A] bequest in favor of an attorney who draws a will is a circumstance arousing
Most significantly, in Powers, this Court specifically discussed the rebuttable presumption of undue influence as it arises when an attorney drafts a will in his or her own favor. The will in Powers had been drafted by an attorney who was married to the decedent's close friend, and it left substantial portions of the decedent's estate to both the attorney and the close friend (i.e., the attorney's wife). In re Powers' Estate, 375 Mich. at 155-157, 134 N.W.2d 148. Powers began by recognizing the inherent ethical misconduct of the attorney: "If any prizes were to be awarded for dismal professional judgment, the proponent here would be in a fair way to be signally recognized." Id. at 157, 134 N.W.2d 148.
As Powers recognized, the focus of the will contest is to determine the decedent's intention and not to judge and discipline the attorney's conduct. Id. at 178, 134 N.W.2d 148 ("The forum in which to test unprofessional conduct of an attorney in this State is adequately supplied in the State Bar grievance procedure. The forum in which not to test it is a jury trial determining testamentary capacity and undue influence."). Thus, that an attorney drafted a will giving a gift in his or her
In addition, our longstanding caselaw indicates that even when the rebuttable presumption of undue influence arises, "the burden does not rest upon the [proponent of the will] to show that the transaction was free from undue influence." Hill v. Hairston, 299 Mich. 672, 679, 1 N.W.2d 34 (1941). That is, the presumption historically did not shift the ultimate burden of proof to show undue influence. In re Bailey's Estate, 186 Mich. 677, 692, 694, 153 N.W. 39 (1915) ("It is true that a presumption is raised that calls for an explanation, but the burden of proof to show undue influence is not thereby shifted. ... [T]he burden of proof to show undue influence rest[s] upon the contestant, and not the proponent. Such, we think, is the settled law in this State."). See also In re Jennings' Estate, 335 Mich. 241, 244, 55 N.W.2d 812 (1952) (stating that "there is no shifting of the burden of proof under the presumption" and "while it establishes a prima facie case in the absence of testimony on the subject, [the presumption itself] has no weight as evidence, is rebuttable, and cannot be weighed against evidence").
In summary, even when a rebuttable presumption of undue influence has arisen, this Court has held that it does not shift the ultimate burden of proof; rather, that burden always remains with the contestant. This historical framework remains in place today but has now been incorporated through statute rather than existing exclusively in caselaw.
In 1998, the Michigan Legislature enacted EPIC, which became effective April 1, 2000. 1998 PA 386. As part of EPIC, the Legislature codified the applicable burdens of proof in will disputes in MCL 700.3407(1), which provides in pertinent part:
Because EPIC and our rules of evidence each require that a will or trust contestant establish undue influence and that the ultimate burden of persuasion remains with the contestant despite any presumption that may arise, we see no basis to revisit the merits of Powers. Indeed, it may largely be immaterial whether Powers was correctly decided — although we believe that it was — because the Legislature itself subsequently adopted the same historical framework in its enactment of EPIC, which we are bound to follow.
Appellants now ask us to disregard this historical framework and adopt a per se rule of undue influence under which a testamentary gift to a drafting attorney is automatically void when there has been a breach of MRPC 1.8(c). However, we believe that such an approach is inappropriate for several reasons.
The opinion in support of reversal asserts that a per se rule of undue influence would not abrogate the contestant's burden to show undue influence because "[t]he contestant would have to show that the attorney violated MRPC 1.8(c), which requires showing (1) the attorney drafted the provision leaving himself a gift, (2) the gift was `substantial,' and (3) the attorney and client were not related." We disagree. Such a showing does not establish undue influence in any meaningful sense; rather, it merely shows that there has been a breach of MRPC 1.8(c). As noted earlier, the precise nature of the "undue influence" necessary to invalidate a will is "something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator." In re Williams' Estate, 185 Mich. at 120, 151 N.W. 731 (quotation marks and citation omitted). See also In re Sprenger's Estate, 337 Mich. at 521-522, 60 N.W.2d 436 ("`Undue influence' exercised upon one who executes a will may become the basis for finding the will invalid if that influence took from the testator his right to freely exercise his discretion in disposing of his property.") Whether there has been a
Whether the current probate framework is sufficient to protect a decedent requires difficult policy determinations that involve balancing the decedent's intentions with policies sanctioning unethical attorney conduct. And as this Court has explained:
If the current policy framework is insufficient to protect a decedent when MRPC 1.8(c) has been breached, and any further inquiry into the decedent's intentions should be compromised or foreclosed, it is the Legislature that ought to make this determination and provide for an appropriate limiting rule. See, e.g., Agee v. Brown, 73 So.3d 882, 886 (Fla. App., 2011) ("The best way to protect the public from unethical attorneys in the drafting of wills ... is entirely within the province of the Florida
For these reasons, we conclude that a per se rule of undue influence is untenable and incompatible with the longstanding policies of this state, and it would be inappropriate for this Court sua sponte to adopt such a rule.
Despite the clear statutory requirements and fundamental concepts of probate law in Michigan, appellants contend that the later adoption of MRPC 1.8(c) favors the implementation of the per se rule. Once again, MRPC 1.8(c) states, "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee." There are several reasons why the adoption of this rule does not warrant a change in current law or the overruling of our longstanding precedents in regard to the present controversy.
In addition to the text itself of MRPC 1.0(b), this provision includes a comment setting forth the fundamental scope of the MRPC, and this comment further asserts that a breach of the MRPC merely constitutes a basis for "invoking the disciplinary process." The comment states:
Thus, as limned in the text of MRPC 1.0 and further explained in its accompanying comment, the remedy for a breach of MRPC 1.8(c) is the "disciplinary process." Breaches of the MRPC just do not give rise to causes of action, and private parties cannot seek to enforce a disciplinary rule. Because MRPC 1.8(c) specifically is silent as to the effect of its breach, and because a breach of the MRPC generally only supplies a basis for invoking the attorney disciplinary process, MRPC 1.8(c) does not bear on the validity of Powers or on the resolution of this case.
Accordingly, under Green, a breach of a standard of professional conduct "standing alone should be dealt with by bar disciplinary action rather than" by allowing the breach to affect the substantive legal decisions of a case. Id. at 294, 274 N.W.2d 448.
For these reasons, a breach of the MRPC merely constitutes grounds for invoking the attorney disciplinary process. The rules of professional conduct promulgated by this Court should neither overrule
Independent of the undue-influence analysis, appellants argue that the will and the trust here should be held automatically void because their "purposes" ran contrary to "public policy." MCL 700.7404 provides that "[a] trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve." Furthermore, MCL 700.7410(1) provides that "a trust terminates to the extent ... the purposes of the trust ... are found by a court to be unlawful or contrary to public policy." EPIC does not contain any similar provision for wills. However, even if EPIC contained such a provision, appellants' overall argument fails because (a) it ignores the distinction between the purpose of a will or trust and the manner in which these are formed and (b) automatically invalidating a will or trust for a breach of MRPC 1.8(c) continues to give insufficient regard to the critical countervailing policy consideration: discerning and giving faithful effect to the decedent's intentions. Here, the "purposes" of the will and the trust were to bestow a gift to a friend, which in no way is at odds with public policy. Appellants fail to cite any genuine public policy that runs contrary to the purposes of this will and this trust, but instead merely take issue with the manner in which these instruments were formed, and thus their public policy arguments are flawed.
In summary, appellants' public policy arguments are without merit because the "purposes" of the instruments in dispute are not contrary to public policy and because their per se approach fails entirely to consider even the most dominant countervailing public policy considerations set forth in EPIC, namely the decedent's intentions.
Among the underlying purposes and policies of EPIC, reflected deeply within our state's caselaw, is the discernment and effectuation of the decedent's intentions in the distribution of his or her property. Indeed, the "guiding polar star" in probate law is that the intentions of the decedent control in this regard. The per se rule of undue influence advocated by appellants would foreclose at some juncture any further consideration of these intentions in favor of an assessment of the behavior of the decedent's attorney. Appellants' per se rule would run contrary to the foundational principles of probate law, longstanding precedents of this state, and the express provisions of EPIC that require the contestant to bear the burden of establishing undue influence. And the adoption of MRPC 1.8(c), which occurred well before our Legislature enacted EPIC, has no effect on our conclusion in this case because a breach of the MRPC is exclusively a basis for invoking the attorney disciplinary process and does not override the substantive law of EPIC. Therefore, we respectfully reject the approach advocated by appellants, endorse the rebuttable presumption of undue influence articulated in Powers, and would affirm the judgment of the Court of Appeals for the reasons set forth in this opinion.
Brian K. Zahra
Elizabeth T. Clement
McCormack, J. (for reversal).
The ethical code that governs every member of the State Bar of Michigan categorically forbids a lawyer from drafting a will for a client that leaves the lawyer a substantial gift. Yet this Court's outdated precedent enables a lawyer to do so anyway. To be sure, that precedent requires the lawyer to show no undue influence was applied to his client. But that showing is required after the client has passed away, giving the lawyer a consequential evidentiary advantage.
I would overturn In re Powers' Estate, 375 Mich. 150, 134 N.W.2d 148 (1965), to the extent that it held that courts should apply a mere presumption of undue influence to a will contest where an attorney has drafted a testamentary document that names himself as a beneficiary. That particular equitable remedy may have been sufficient before significant changes to our ethics code, the law of probate, and our approach to presumptions. But it is no longer sufficient to protect the public. I would therefore replace it with a per se rule of undue influence that voids substantial testamentary gifts to attorney-drafters. Those who draft wills should not benefit from them.
We owe the public better. I would reverse the Court of Appeals.
The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., the statutory framework that governs testamentary transfers, was enacted so that "a decedent's intent in distribution of the decedent's property" could be "discover[ed] and [made] effective[.]" MCL 700.1201(b). Thus, the "fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible." In re Kremlick Estate, 417 Mich. 237, 240, 331 N.W.2d 228 (1983). The same applies to trust documents. In re Maloney Trust, 423 Mich. 632, 639, 377 N.W.2d 791 (1985). To determine the decedent's intent, we read a testamentary document as a whole and, when it contains no ambiguity, enforce it as written. Bill & Dena Brown Trust v. Garcia, 312 Mich.App. 684, 693-694, 880 N.W.2d 269 (2015).
I agree with the affirming opinion that a court must do all in its power to carry out the testator's intent. That's the whole point: when someone has potentially exerted undue influence on a decedent, courts can no longer be sure that the testamentary instrument, the end product of that alleged influence, accurately reflects the testator's intent. In re Sprenger's Estate, 337 Mich. 514, 521-522, 60 N.W.2d 436 (1953); Detroit Bank & Trust Co. v. Grout, 95 Mich.App. 253, 274-276, 289 N.W.2d 898 (1980). Testamentary gifts that result from undue influence are void.
Generally, the burden of proof rests with the contestant alleging undue influence. MCL 700.3407(1)(c); Kar v. Hogan, 399 Mich. 529, 539, 251 N.W.2d 77 (1976); In re Kramer's Estate, 324 Mich. 626, 634-635, 37 N.W.2d 564 (1949). But this Court has long applied a different framework when an attorney drafts a testamentary instrument for her own benefit. In those cases, we recognized as early as 1897 that the attorney's palpable self-interest "arous[es] suspicion, and raises a presumption more or less strong that undue influence has been exerted. ..." Donovan v. Bromley, 113 Mich. 53, 54, 71 N.W. 523 (1897).
Ten years later, we reiterated that it was "generally recognized by the profession as contrary to the spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this court has held that such dispositions are properly looked upon with suspicion." Abrey v. Duffield, 149 Mich. 248, 259, 112 N.W. 936 (1907). The presumption of undue influence, as applied to attorney-drafter-beneficiaries, is the same presumption that applies whenever a testator favors a fiduciary. Powers, 375 Mich. at 180-181, 134 N.W.2d 148 (opinion by SOURIS, J.). The presumption arises
That is, the presumption is no different for an attorney-drafter-beneficiary or another fiduciary-beneficiary, despite the attorney's unique role in preparing the questionable instrument and plain ethical violation in drafting it.
We last examined this presumption against an attorney-drafter in In re Powers, more than half a century ago. Maybe it made sense then. For the reasons that follow, I believe it is time to reconsider it.
In my view, the affirming opinion's decision today to affirm the rebuttable presumption for attorney-drafters fails the testator while protecting the lawyer. To begin, the rebuttable presumption is easily surmountable. The presumption does not change the ultimate burden of proof, which rests with the party alleging undue influence. Id. at 538, 251 N.W.2d 77.
In other words, it allows the benefitting party the opportunity to satisfy the burden of persuasion to avoid a directed verdict. Widmayer, 422 Mich. at 289, 373 N.W.2d 538. But the opposing party can rebut the presumption with "sufficient" evidence. Kar, 399 Mich. at 542, 251 N.W.2d 77; In re Peterson Estate, 193 Mich.App. 257, 262, 483 N.W.2d 624 (1991).
And applying the presumption against attorney-drafters (as contrasted with other beneficiary-drafters) ignores the unique status of the attorney. The Powers court missed this, stating:
That's not right. The prospect of discerning testator intent when the attorney-drafter is compromised is far harder than for other compromised drafters. Evidence of testator intent is most commonly located in the testamentary document itself and the mind of the attorney who drafted it. While the first is ordinarily the best evidence of intent, Karam v. Law Offices of Ralph J. Kliber, 253 Mich.App. 410, 424, 655 N.W.2d 614 (2002), where there is a possibility that the document was the product of undue influence, it is of little use. In such a case an attorney-drafter's testimony would be the next surest evidence of intent, given that she was intimately involved with the testator in producing the instrument; indeed, when an attorney-drafter is not the beneficiary of a contested instrument, her testimony can be critical to a court trying to assess testator intent where undue influence on the part of a fiduciary is alleged. See, e.g., Jennings' Estate, 335 Mich. at 244, 55 N.W.2d 812 ("The presumption was held to have been rebutted and overcome by a showing that the will had been executed after independent legal counsel in [various cases.]"); In re Grow's Estate, 299 Mich. 133, 140, 299 N.W. 836 (1941) (noting only that while a presumption might have arisen, the testator "had independent advice of Mr. Phillips, an attorney of Pontiac, in the preparation of his will").
The affirming opinion seems to presume that that information is easily knowable. But that's exactly the problem. It's not. If we could readily determine Mr. Mardigian's intent, there would be no need for this appeal. But it is precisely because our precedent allows attorneys to draft wills for their own benefit that difficult situations like this arise and courts must resolve matters without the most reliable evidence of testator intent. I don't know how the affirming opinion can be so sure what Mr. Mardigian's intent was. That's the problem unique to attorney-drafter beneficiaries.
Because I agree with the affirming opinion that protecting testator intent is our goal, I would adopt a per se rule of undue influence for attorney-drafters.
Courts have equitable powers over the settlement of an estate. MCL 700.1302 and MCL 700.1303. And they have equitable powers to address cases of fraud. Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 590, 702 N.W.2d 539 (2005). "Undue influence is a species of fraud," and the rules of fraud therefore apply to questions of undue influence. Adams v. Adams (On Reconsideration), 276 Mich.App. 704, 710 n. 1, 742 N.W.2d 399 (2007). Courts may apply equitable powers to preserve the integrity of the judiciary as well. Stachnik v. Winkel, 394 Mich. 375, 382, 230 N.W.2d 529 (1975). The Powers presumption was an appropriate equitable tool for its time, but it now should receive an update: a testamentary instrument produced by an attorney-beneficiary should be seen as one that has resulted from undue influence. Full stop.
Generally, to prove undue influence, "`[m]otive, opportunity, or even ability to control'" is insufficient. In re Karmey Estate, 468 Mich. 68, 75, 658 N.W.2d 796 (2003), quoting Kar, 399 Mich. at 537, 251 N.W.2d 77. Instead, "affirmative evidence" must be shown. Id. I would hold that a lawyer who drafts testamentary instruments in violation of MRPC 1.8(c) has provided that "affirmative evidence." I
I don't share the affirming opinion's concerns about a per se rule. First, the idea that a per se rule would somehow usurp the role of the Legislature rests on a flawed premise; the suggestion that EPIC has somehow codified the Powers presumption is simply not correct. For one thing, the Legislature provided "undue influence" as a basis to invalidate a will, MCL 700.3407(1)(c), but it has not defined the term. Nowhere does it mandate a "rebuttable presumption" as the standard for assessing undue influence, whether for attorneys or anyone else. Rather, this Court invented that doctrine. Donovan, 113 Mich. at 54, 71 N.W. 523.
Powers was decided in a different legal world. The rules of professional conduct, probate law, and our approach to rebuttable presumptions have all changed significantly since 1965. Considered together, those changes require an updated approach to our old rule if we are serious about protecting the public in this context.
Bear with me; this part is a bit of a slog. Over the last century or so, a sea change has occurred in how the legal profession views and operationalizes its ethics rules. When this Court first introduced the presumption of undue influence in the context of an attorney-beneficiary of an estate at the end of the nineteenth century, there was no formal code of ethics governing lawyers; only personal morality and specific statutes governed lawyer conduct. See Niehoff, In the Shadow of the Shrine: Regulation and Aspiration in the ABA Model Rules of Professional Conduct, 54 Wayne L Rev. 3, 5-6 (2008); Wolfram, Toward a History of the Legalization of American Legal Ethics-II The Modern Era, 15 Geo. J Legal Ethics 205, 206 (2002) ("The early history of American legal ethics gave no indication that lawyers would one day become a highly regulated profession. For the most part, regulation was highly traditional, episodic, and reactive, and was addressed primarily to pathological extremes of lawyer behavior."). If attorney conduct was regulated, it was case by case in litigation. 1 Hazard et al., The Law of Lawyering (4th ed.), § 1.08, p. 1-29. And "[p]rior to the late 1800's there were no conflict of
Alabama produced the nation's first ethical code in 1887, and the ABA built upon that code when it issued the 1908 Canons of Ethics. Hazard, Law of Lawyering at §§ 1.09 and 1.10, pp. 1-31, 1-32.
In 1935 this Court first tried to codify the ethical responsibilities of members of the State Bar. That year the Court adopted the Canons of Professional Ethics of the American Bar Association.
Canon 11, the amended version of which the Court adopted in 1938, provided in full:
Dealing with Trust Property.
Canon 11 therefore only advised that lawyers "should refrain" from actions taking advantage of their client's confidence; it did not explicitly prohibit a lawyer from receiving a gift under a testamentary instrument the lawyer drafted. What is more, the Court adopted no detailed or functional grievance procedure.
Under these rules, an attorney who drafted a will to which she was a beneficiary suffered no consequences. For one example, the State Bar's Committee on Professional and Judicial Ethics issued an ethics opinion on this topic in 1948. Opinion 112, 1948, 29 Mich. State Bar J 141 (1950). The attorney who was the subject of the opinion was indebted to his client and drafted the client's will discharging the attorney of all debt. Id. Citing our older opinions on the topic, the Committee stated that it could not "assume that the lawyer had improper motives," but "the circumstances are such as to place him in a most unfavorable light." Id. at 142. The Committee concluded that an attorney here could not ethically draft such a will. Id. at 142-143. But the upshot of the opinion was only that the Bar received some theoretical instruction on ethics; the unnamed attorney presumably remained debt-free.
This was the professional-rules backdrop against which the question we decide here was last considered in Powers. A lot happened next.
In 1971, this Court tried to provide additional guidance to the profession by adopting parts of the Code of Professional Responsibility of the American Bar Association, issued two years earlier.
Things changed in an important way with the ABA's Model Rules of Professional Responsibility in 1983. Professor Geoffrey Hazard, Jr., the reporter for the ABA commission that produced the Model Rules, stated that the ethical rules should establish "`the lawyer's legal obligations and not [be] expressions of hope as to what a lawyer ought to do.'" Peters, Note, The Model Rules as a Guide for Legal Malpractice, 6 Geo. J Legal Ethics 609, 611 (1993), quoting Hazard, Jr., Legal Ethics: Legal Rules and Professional Aspirations, 30 Clev. St. L Rev. 571, 574 (1982). In other words, the rules should have some teeth.
The Rules, then, were meant to eliminate flimsy aspirational ideals and draw (at least some) clear lines. In the Shadow of the Shrine, 54 Wayne L Rev. at 10.
In 1988, this Court adopted Model Rule 1.8(c), along with many others, when it promulgated the current version of the Michigan Rules of Professional Conduct (MRPC).
We have not amended MRPC 1.8(c) since its adoption.
The affirming opinion today gives these changes short shrift: these important changes in the rules governing lawyers, and specifically MRPC 1.8(c), should force us to rethink the Powers presumption.
Ethical principles have always undergirded suspicions about testamentary gifts to an attorney-drafter. See Abrey v. Duffield, 149 Mich. 248, 259, 112 N.W. 936 (1907).
But attorney Papazian drafted his client's will and trust in clear violation of MRPC 1.8(c). His transgression is simply of a different kind and scope than that of Dr. Powers' attorney. And that difference means the Powers presumption should no longer be the appropriate equitable tool for determining undue influence. The resulting will or trust is the fruit of the ethical transgression. And so, when an attorney seeks to enforce his or her ethically prohibited work product, a court is put in the position of essentially aiding the swindle. See Succession of Cloud, 530 So.2d 1146, 1150 (La. 1988) ("When an attorney enters into a contract with his client in direct and flagrant violation of a disciplinary rule and a subsequent civil action raises the issue of enforcement (or annulment) of the contract, this court, in order to preserve the integrity of its inherent judicial power, should prohibit the enforcement of the contract which directly contravenes the Code adopted by this court to regulate the practice of law.").
In a closely related context, we have declined to allow courts to be conscripted into unethical enterprises. Indeed, we have endorsed the view that it is nonsensical for courts to uphold unethical fee agreements when those agreements will subject the attorney to discipline for violating our professional rules. See Abrams v. Susan Feldstein, P.C., 456 Mich. 867, 569 N.W.2d 160 (1997) (reversing and agreeing with the Court of Appeals dissent). The Court of Appeals has followed suit. See, e.g., Evans & Luptak, PLC v. Lizza, 251 Mich.App. 187, 196, 650 N.W.2d 364 (2002) (quoting Judge GRIFFIN's dissent in Abrams for the proposition that it would be "`absurd'" to allow an attorney to enforce a fee agreement forbidden under our ethics rules); Speicher v. Columbia Twp. Bd. of Election Comm'rs, 299 Mich.App. 86, 91-93, 832 N.W.2d 392 (2012) (noting that "courts have the authority and obligation to take affirmative action to enforce the ethical standards set forth by the Michigan Rules of Professional Conduct" and therefore refusing to enforce a contract violating the
Not surprisingly, change has also come to our probate laws in the 60-plus years since we decided Powers. Indeed, the entire legal system governing probate has gone through two series of significant changes that introduced and modified an informal probate procedure. The affirming opinion does not address these changes at all, but I find them critical. In 1978, the Legislature developed "independent" probate as an alternative to supervised probate. 1978 PA 642, art 1, § 7 (codified at 1979 CL 700.7). Independent probate favored less court supervision than supervised probate — the approach in place at the time of Powers. Id. (defining "independent probate" as "probate designed to operate without unnecessary intervention by the probate court as provided in article 3"); Foster & Zack, Informal Estate Proceedings in Michigan (2000), p. 1-1 (noting that "the probate register," and not the court, "made decisions and signed documents throughout independent proceedings from commencement to the certificate of completion"). This alternative was retained, with modifications, as "informal" probate in our present system, EPIC, 1998 PA 386, § 3301 (codified at MCL 700.3301). Informal proceedings are the process "for probate of a will or appointment of a personal representative conducted by the probate register without notice to interested persons." MCL 700.1105(b); see also MCL 700.3301 (describing procedures for informal probate).
In addition to the changes to probate law, our approach to rebuttable presumptions in the broader civil context has changed. A few months before we decided Powers, we held that a rebuttable presumption itself could sometimes be weighed as evidence. In re Wood Estate, 374 Mich. 278, 294, 132 N.W.2d 35 (1965). A jury had to be instructed to apply a presumption unless it was rebutted. In other words, under this view "the presumption is `evidence,' to be weighed and considered with the testimony in the case." 2 McCormick, Evidence (7th ed.), § 344, p. 699. This gave the presumption greater effect and turned it into a "burden shifting device: Once the presumption was established, the burden shifted to the opponent to establish that the presumed fact was not true. Moreover, even if rebutted, the presumption was to be presented to the jury as a conditional mandatory inference." 1 Mich. Court Rules Practice, Evidence (3d ed.), § 301.2, p. 171.
The combination of these changes is a boon to the unethical lawyer. The probate system is easier to navigate without court involvement. And decreased judicial oversight means it is less likely that unscrupulous lawyers are found out; it is easier for them to escape with their testamentary boodle. And if they are questioned, the rebuttable presumption of yesterday is a far lower hurdle to clear for today's lawyers than it was in 1965 for Dr. Powers' lawyer. The affirming opinion does not explain why a court-fashioned rule that made sense before these changes still makes sense.
In my view these changes in the law underscore why attorney-beneficiary instruments should be prohibited. A per se rule would harmonize probate law and MRPC 1.8(c), and get courts out of both the difficult business of struggling to discern testator intent when the primary sources are unreliable and the distasteful business of approving attorneys' ethical workarounds.
Harmonizing these rules is also efficient. A rebuttable presumption forces the parties into a messy undue influence battle in probate court. Inefficiencies multiply when a party aggrieved by the lawyer's misconduct seeks restitution in a parallel grievance proceeding. The result is nasty, poor, brutish, and long. This case illustrates the point: litigation has been ongoing since February 2012, roughly one dozen law firms have been involved so far, and its documentary record fills five-and-a-half
The framers of Rule 1.8(c) presaged this concern. During debates, the ABA voted down a proposal by the New York Bar to make Rule 1.8(c) a flexible rule by amending it to state that a lawyer "ordinarily" should not draft such instruments. ABA, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, p. 187. The ABA instead doubled down, making the Rule unwaivable by clients, unlike many other rules, and by providing that the conflict of interest it creates is imputed to all members of a lawyer's firm. See Hazard, Law of Lawyering at § 13.14, p. 13-32. The reason for these exacting prophylactic rules was to "reduce even the possibility of later recriminations or a later will contest that could frustrate the client's intentions." Id.
A per se rule of undue influence would accomplish the same goals. And it would restore some dignity to the oft-maligned legal profession. Instead the affirming opinion says on the one hand that a lawyer is prohibited from preparing a testamentary instrument that leaves a substantial gift to herself and then permits its enforcement when the corrupt instrument is challenged. I am deeply troubled that the opinion leaves in place a rebuttable presumption regime that provides a roadmap for unethical attorneys.
Over a century ago this court recognized that an attorney who drafts a client's will leaving himself a substantial gift presented a special problem for a court whose job it is to protect the testator's intent. In my view, changes in the law and in the rules governing the conduct of lawyers make the historical remedy this court adopted to handle this problem — a rebuttable presumption of undue influence — no longer sufficient to protect the public. Yes, lawyers who violate their ethical duties to clients can be punished in the disciplinary process. But that only solves part of the problem. Because I agree with the affirming opinion that testator intent is paramount, I would update our equitable remedy to ensure that intent is respected. Our equitable remedy can and should reflect the updates to the relevant substantive law and ethics rules.
In not doing so, the court protects compromised lawyers over the public. I would have reversed the Court of Appeals.
David F. Viviano
Richard H. Bernstein
The opinion in support of reversal asserts that the instant citation constitutes a "novel use of legislative history." However, we do not rely on the above to confer meaning upon EPIC; it is merely cited as consistent with what we have argued the text already shows.
In addition, as we have noted earlier, the problematic nature of the instant will and trust arises from the manner in which these two instruments were formed, not from their purpose. Moreover, with respect to fraud, the opinion in support of reversal does not acknowledge the longstanding principle that "[f]raud cannot be presumed, but must be proved." Brown v. Dean, 52 Mich. 267, 271, 17 N.W. 837 (1883). See also Goldberg v. Goldberg, 295 Mich. 380, 384, 295 N.W. 194 (1940) ("The burden of showing fraud is upon the person alleging it. Fraud is never presumed, nor is it to be lightly inferred.") (citations omitted). A per se rule of undue influence, however, does exactly that: it presumes the existence of fraud or, more specifically, the existence of undue influence while discharging the contestant's affirmative responsibility to establish that the decedent's free agency has been abrogated.