Knocking on Heaven's Door: Ending the Ban on Live Person-to-Person Solicitation to Close the Racial Estate-Planning Gap

Abstract

The well-documented and persistent racial wealth gap, together with the other barriers, has created a predictably racialized estate-planning gap, with damaging consequences in communities of color. Despite Anglo-American law’s strong and oft-expressed preference for testacy, a formal legal commitment to enabling those competent persons who wish to control the devolution of their property upon death to do so, and a rule of professional responsibility banning conduct with a discriminatory impact, the profession continues to burden itself with a rule that virtually ensures that (especially poor) people of color do not benefit from estate-planning as much as they might. This Article proposes a modification of Model Rule 7.3(b), to lift the solicitation ban as it applies to competent, non-dependent adults to whom non-litigation estate-planning services are offered, and from whom informed consent, confirmed in writing, is obtained for any resulting legal services. It is a clear, practical step that balances legitimate concerns about protecting vulnerable clients with the need for access to estate-planning services.

Keywords: professional responsibility, professional ethics, solicitation, race