Can a lawyer prepare estate analyses that an insurance firm presents to its prospects as the work of the firm's attorney?

Plain-English summary

The committee addressed two related situations involving life-insurance estate analyses. In the first, a Bar member who is not a practicing attorney is employed full-time by a life-insurance firm at a salary plus a minimum bonus (no commissions, no occupational license to practice). He prepares estate analyses for the firm's prospects from information furnished by the agent, and the analysis is submitted to the prospect represented as prepared by an attorney working for the insurance firm, without cost. He may later assist the client's own attorney or accountant, prepares no legal documents, and refers the client out if an attorney is needed; he uses a letterhead showing he is a consulting attorney for the firm. In the second situation, the attorney is in active practice, has the insurance firm as a client on a fixed retainer plus a fixed fee per analysis, and prepares analyses from the firm's information that are presented to prospects as prepared by the agency's attorney, again without cost; if the prospect has no attorney, he offers to handle the matter himself, creating the usual attorney-client relationship.

On the first situation, the committee was divided. Four members found participation improper, reasoning that although a firm may hire an attorney full-time and have him develop analyses for the employer, it is improper for the attorney's opinion to be presented to the client as a Bar member's opinion prepared for the prospect's benefit. No direct attorney-client relationship exists, so Canon 35 is offended as practice through an intermediary; the presentation is misleading because the analysis appears unbiased while it is prepared to sell insurance, and the attorney ends up giving unsolicited advice based on facts furnished by a financially interested employer, raising conflict and lay-agency concerns. Two members thought the practice not unethical if the attorney is employed full-time and the presentation clearly shows the analysis is by an employee of the insurance firm offering one possible solution; one of them suggested using the employer's regular letterhead with the attorney signing as staff counsel.

On the second situation, all members found ethical improprieties. The attorney is not a full-time employee and is allowing his services to be sold to a prospect for the prospect's benefit without being retained by the prospect. The insurer's and the prospect's interests could conflict, the attorney is placing himself in a position of representing conflicting interests without disclosure (Canon 6), his services are being controlled or exploited by a lay agency (Canon 35), and he is rendering an opinion on facts presented by a third party. The committee noted it cannot decide unauthorized-practice questions, but cited Oregon State v. John H. Miller & Co., 385 P.2d 181 (Or. 1963), where an analogous estate-planning service was held to be the unauthorized practice of law, and principles of the National Conference of Lawyers and Life Underwriters (Martindale-Hubbell, Vol. III) condemning circularizing or using such opinions as selling documents. A member whose name or services aided such unauthorized practice would violate Canon 47.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 27, 35, and 47 of the Canons of Professional Ethics; conflicts of interest are now governed by Rule 4-1.7, the lawyer's professional independence (including lay control of legal services) by Rule 4-5.4, and aiding the unauthorized practice of law by Rule 4-5.5 of the Rules Regulating The Florida Bar (Model Rules 1.7, 5.4, and 5.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a practicing attorney prepare estate analyses the insurer presents to prospects as its attorney's work?

A: No. On that second situation, the committee was unanimous that ethical improprieties were involved, including undisclosed conflicting interests and control of the attorney's services by a lay agency.

Q: What about a full-time, salaried insurance-firm lawyer doing the analyses?

A: The committee was divided. A majority (four members) found it improper to present the analysis to the prospect as a Bar member's opinion prepared for the prospect's benefit; two members thought it acceptable if the presentation clearly showed the work was by an employee of the insurer offering one possible solution.

Q: Did the committee decide whether the insurer was practicing law unlawfully?

A: No. It said it is not authorized to determine unauthorized practice, but cited Oregon State v. John H. Miller & Co. and noted that a member aiding such practice would violate Canon 47.

Background and rules framework

The opinion applied former Canons 6 (conflicting interests), 27 (advertising), 35 (professional independence and intermediaries), and 47 (aiding unauthorized practice) of the Canons of Professional Ethics. Those subjects are now addressed by Rule 4-1.7 (conflicts), Rule 4-5.4 (professional independence), and Rule 4-5.5 (unauthorized practice) of the Rules Regulating The Florida Bar (Model Rules 1.7, 5.4, and 5.5). This opinion is the foundation the committee relied on in its later estate-analysis opinions, 64-70 and 64-71.

Citations and references

Rules of Professional Conduct:

• Canons 6, 35 [Canons of Professional Ethics; conflicting interests; professional independence and intermediaries; see current Rules 4-1.7, 4-5.4]
• Canon 47 [aiding unauthorized practice; see current Rule 4-5.5]

Cases:

• Oregon State v. John H. Miller & Co., 385 P.2d 181 (Or. 1963): an analogous estate-planning service held to be the unauthorized practice of law

See also

• FL Bar Ethics Op. 64-70: Preparing Estate Analyses for Insurance Agents
• FL Bar Ethics Op. 64-71: Bank-Paid Work on a Corporation's Pension Plan

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-33.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 64-33
June 22, 1964
Advisory ethics opinions are not binding.
It is improper for an attorney employed full-time by an insurance firm to prepare an estate analysis for prospective clients of the insurance firm, since the attorney's opinion is to be presented to the client as an opinion of a member of The Florida Bar prepared for the benefit of a prospective client. It also is improper for a practicing attorney to prepare an estate analysis from information furnished by an insurance agency to be presented to the prospective client as having been prepared by the agency's attorney.
Canons: 6, 27, 35, 47
Cases: Oregon State v. John H. Miller & Co., 385 P.2d 181 (Ore. 1963)
Chairman Smith states the opinion of the committee:
A member of The Florida Bar requested the opinion of the Professional Ethics Committee relative to two rather complex, but related, problems. The inquiry has been considered by all members of this Committee. It is difficult to express in a compiled form the views presented by the Committee. The following, however, fairly represents a composite of the opinions received.
In the first situation presented, a member of The Florida Bar, who is not a practicing attorney, is employed full time by a firm engaged in the sale of life insurance. The attorney receives a salary plus a minimum bonus from the life insurance firm. The compensation is not directly related or connected with the legal services rendered and the attorney does not receive commissions. The attorney is a member of various legal associations, but does not have the necessary occupational licenses for the practice of law. The services of this attorney include the preparation of estate analyses for prospective clients of the insurance firm. The insurance agent furnishes the attorney with information from which the analysis is prepared. The analysis is then submitted to the prospective client with the representation that the analysis is prepared by an attorney working for the life insurance firm. The analysis is furnished without cost to the prospective client. Subsequently, as the matter develops, the attorney for the life insurance organization may consult with or assist the client's attorney, certified public accountants or other professional advisors. There is no preparation of legal documents by the attorney involved and, if the client needs an attorney, a referral is made by the insurance firm. The attorney uses a letterhead which shows his name and indicates that he is a consulting attorney for the insurance firm by which he is employed. No other person in the insurance firm uses this letterhead and the attorney's name does not appear on any other letterhead used by the firm.
In the second situation, the attorney is a member of The Florida Bar and is engaged in the active practice. One of his clients is an insurance firm engaged in the sale of life insurance. The attorney receives a fixed retainer for the agency's general legal work and, in addition, receives a fixed fee for the preparation of the estate analysis. This attorney maintains the usual licenses of law and is a member of legal associations. His services include the preparation of estate analysis from information furnished by the life insurance firm. Once prepared, an analysis is presented to the prospective client and the representation is made that the analysis has been prepared by the agency's attorney. There is no cost for the services to the prospective client. Subsequently, the attorney will assist the client's own attorney or other professional advisors. If the insurance client does not have an attorney, the attorney for the insurance group will offer to handle the matter for the client. At this point, the usual attorney-client relationship is created with the client paying to the attorney fees for services rendered.
The Committee is divided in its opinion as to the first situation presented. In the second instance, the Committee unanimously believes that ethical improprieties are involved.
As to the first situation, four members of the Committee feel that the attorney's participation in the program is ethically improper. These members believe, as do the others, that it is quite proper for a firm to hire an attorney and for that attorney to serve the firm full time. All members further feel that it is proper for the attorney to render opinions or develop estate analyses for the benefit of the attorney's employer. The majority maintain, however, that it is improper for the attorney's opinion to be presented to the client as an opinion of a member of The Florida Bar prepared for the benefit of the prospective client. No direct relationship exists between the attorney and client and, it is argued, Canon 35 is offended because the situation amounts to the practice of law through an intermediary. Further, the majority feel that the situation is misleading inasmuch as the attorney's opinion apparently is presented as an unbiased evaluation whereas it is in fact prepared for the purpose of selling life insurance and is most likely slanted in that direction. As a result, the attorney is in a position of giving unsolicited legal advice to a member of the public upon representations of fact furnished to the attorney by his employer, who is financially interested in the circumstances. There is a possibility of conflict of interests and of engaging in the practice of law through a lay agency in violation of specific provisions of the Canons of Ethics.
Two members of the Committee believe that the attorney's practice is not unethical providing he is employed full time by the life insurance firm, and providing further that the presentation to the client is made so that it clearly appears that the estate analysis is made by an employee of the life insurance firm for the purpose of presenting one possible solution to the estate problem of the client. One member of the minority suggests that the circumstances would be more properly presented if the attorney used the regular letterhead of his employer and signed the analysis as staff counsel or in some other capacity which clearly shows the relationship of the attorney to the insurance organization.
Regarding the second factual situation, all members believe that ethical improprieties are presented. The attorney is not a full time employee of the insurance agency. He is allowing his services to be sold or presented to the prospective client, for the benefit of the client, when he has not been retained by the client for that purpose. The interest of the insurance company and that of the client could easily conflict and the attorney is placing himself in a position of representing conflicting interests. There is no disclosure of this fact, contrary to the provisions of Canon 6. In addition, the professional services of the attorney are being controlled or exploited by a lay agency, contrary to the provisions of Canon 35. In addition, the attorney is in effect rendering an opinion on a factual situation presented to him by a third party. This offends both the Canons mentioned.
This Committee is not authorized to determine whether a particular practice constitutes unauthorized practice of law. Thus we can express no opinion regarding the activities of the life insurance agencies concerned. In one of the few cases on point, however, Oregon State v. John H. Miller & Co., 385 P.2d 181 (Ore. 1963), an analogous estate planning service was declared to constitute the unauthorized practice of law. Further, statements of principle are periodically propounded by the National Conference of Lawyers and Life Underwriters. These principles are referred to on pages 151A and 152A, Volume III, Martindale-Hubbell. Therein it is stated that it is improper for a life underwriter to furnish attorneys who will give legal advice to the life underwriter's clients or prospective clients. The life underwriter, it is said, may properly obtain legal advice from an attorney for the underwriter's own guidance. However, it is improper to circularize any such opinion or to use it as a selling document. The same material presents certain findings which tend to condemn the practice of an attorney as set forth above.
Should the problems be presented to the Committee on Unauthorized Practice of Law of The Florida Bar, and should that group find that the insurance firms are engaged in such practices, it is obvious that any member of The Florida Bar permitting his professional services or name to be used to aid such unauthorized practice would be in violation of Canon 47.