(dissenting).
The formal accusation filed by the. Disciplinary Board charged that respondent had violated Canon 5, EC 5-5 and EC 5-6 of the South Dakota Code of Professional Responsibility by naming himself as sole heir and executor in the will of Wallace A. Nelson. That will, however, was executed in 1956; the Code of Professional Responsibility was adopted in July of 1970.* Although the petition for probate of the Nelson -will was filed in August of 1976, that petition specifically disavowed any personal pecuniary claim by respondent as an heir, devisee,, or legated of the estate. Accordingly, I would hold that any impropriety by respondent in drafting the 1956 Nelson will was adequately dealt with by our decision in Matter of Estate of Nelson, 274 N.W.2d 584 (S.D.1978).
With respect to the other wills in which respondent was named as executor, co-executor, alternate executor, or trustee, the referee found that the record did not disclose that respondent had consciously influenced the testators to name him in those capacities. I accept this finding.
The considerations expressed in Canon 5, EC 5-6 should be clear enough for all to appreciate. The measure of care to be taken by a lawyer to avoid even the appearance of impropriety when acceding to a request to be named as executor, trustee, or attorney may well require the preparation of documentation beyond the usual recital in the instrument itself. Although a client may have the right to ask his or her attorney to serve in a fiduciary capacity, the attorney should not undertake to accept the designation without making a record that will clearly dispel any later suggestion that the motivation for such designation was anything other than the client’s free, informed, uninfluenced decision.
I would dismiss the proceedings.
Since the formal accusation does not allege that respondent had violated any of the pre-T97,0 Canons of Professional Ethics, we need not speculate on that point.