Some estate and trust lawyers are urging the Florida Bar to recommend tighter rules governing lawyers who draft a client's will or trust and also serve as the personal representative or trustee for the estate.

Florida Supreme Court rules prohibit lawyers from being named as beneficiaries in the wills they draft for clients. But nothing stops them from being designated as personal representative or trustee. As the personal representative or trustee, an attorney stands to earn significant fees.

Rohan Kelley of Fort Lauderdale, who heads the Bar's real property, probate and trust law section, said too many lawyers "are writing themselves into documents for their own personal gain." Lawyers should not serve in fiduciary roles in more than 50 percent of the cases where they draft the will or trust, he said.

"We need a disciplinary rule for lawyers who serve as not only trustees but personal representatives," Kelley said. Lawyers who are found to be serving as the personal representatives or trustees for most of their estate cases should face discipline, he argued.

If lawyers place themselves in fiduciary roles in wills or trust documents they draft, it is imperative that they set up a legal mechanism that allows for their removal from such positions, said Christopher Boyett, Holland & Knight's South Florida private wealth team leader based in Miami. "It's absolutely awful to set up a situation where you cannot be removed," he said.

Kelley said, however, that resolving this ethical dilemma is not high on the Bar's priority list.

A personal representative under a will must file a petition to be appointed by the court, take an oath and file certain pleadings. Under a trust arrangement, there is no need to involve a court.

Florida law offers a sliding scale for fees of personal representatives -- ranging from 3 percent of the first $1 million in probate estate assets to 1.5 percent of everything above $10 million. The fee can rise to 6 percent if a lawyer agrees to serve as both a personal representative and counsel to the estate, according to trust and estate lawyers.

State law does not specify what a reasonable fee for a trustee would be. But lawyers interviewed for this article said an annual fee of 1.5 percent of the total value of the trust is generally considered reasonable.

Some trust and estate lawyers say there are circumstances where the best way for a lawyer to represent a trust and estate client is to serve in a fiduciary role, and the lawyer should be fairly compensated.

"It's not easy to be a personal representative or a trustee, and it can come with a fair amount of liability," said Michael Simon, a partner at Gunster Yoakley & Stewart in West Palm Beach.

But lawyers also agree that the lack of ethical guidance from the Bar increases the potential for attorneys to take advantage of estate and trust clients, who generally are elderly and may not be at their mental peak.

"There are ethical issues that have not been fully considered," said trust and estate lawyer Jeffrey Baskies, a partner at Ruden McClosky in Fort Lauderdale.

Thus, trust and estate lawyers say their colleagues should never solicit a personal representative or trustee appointment, should ensure there is a removal mechanism in place, and should only accept fiduciary roles in a small number of wills or trust agreements that they are involved in.

Boyett said that sometimes lawyers have little choice but to serve as trustees or personal representatives. Longtime clients may want someone they know well to handle anticipated family disputes, or they may not have any relatives or friends they trust, or they don't trust financial institutions to do the job, he said.

But Boyett said that lawyers' position in these cases should be: "You will serve as a convenience to [the client], but this is not a role that you are lobbying for."

"I don't think that it would be appropriate for a professional adviser, including a lawyer, to solicit that appointment," Simon said.

Trust and estate lawyers say most of their colleagues act in an ethical way. But they are concerned about those who don't. "I don't know a lot of lawyers who ask their clients to appoint them," Baskies said. On the other hand, he adds, "I won't say that doesn't happen."