Can a lawyer notify former will clients that a change in federal tax law may affect the wills the lawyer drafted for them?

Plain-English summary

A member asked whether a lawyer may ethically notify clients whose wills the lawyer prepared of changes in federal tax law or regulations that may affect a previously executed will.

The committee said a lawyer may ethically call a client's attention to changes in the law bearing on the client's previously executed will, subject to conditions: the lawyer or his firm prepared the will; the lawyer has no reason to believe the will has been revoked or superseded; the lawyer has reason to believe that, because of new developments, the existing will may no longer achieve the testator's desires; and the lawyer does not solicit or suggest his or the firm's employment. The committee acknowledged that an indirect suggestion of employment is unavoidably implicit in such a communication, but said this ethical weakness is outweighed by the benefit and service to the client. It cautioned that an ethical lawyer will not send such communications indiscriminately, but will be certain they are clearly justified by the lawyer-client relationship and the client's need to know. The committee noted the subject is also covered by ABA Opinion 210 and discussed in Drinker's treatise.

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 27 and 28 of the Canons of Professional Ethics, concerning advertising and solicitation; the published opinion maps the analysis to current Rule 4-7.18(a) of the Rules Regulating The Florida Bar (the solicitation rule; Model Rule 7.3), and communication with clients is addressed by Rule 4-1.4 (Model Rule 1.4). Florida's advertising and solicitation rules were also substantially affected by Bates v. State Bar of Arizona, 433 U.S. 350 (1977), decided after this opinion. 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 Treat this page as historical context, not current guidance.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 the lawyer tell will clients about a tax-law change affecting their wills?

A: Yes, subject to conditions. The lawyer or firm must have prepared the will, have no reason to think it was revoked, have reason to believe the change may defeat the testator's desires, and not solicit new employment.

Q: Isn't that an indirect pitch for new work?

A: The committee acknowledged an indirect suggestion of employment is unavoidably implicit, but concluded the benefit and service to the client outweighed that ethical weakness.

Q: Could the lawyer send such notices broadly?

A: No. The committee said such communications must not go out indiscriminately and must be clearly justified by the lawyer-client relationship and the client's need to know.

Background and rules framework

The opinion applied former Canons 27 and 28 of the Canons of Professional Ethics on advertising and solicitation. The published opinion maps the analysis to current Rule 4-7.18(a) of the Rules Regulating The Florida Bar (solicitation; Model Rule 7.3); the duty to keep a client reasonably informed appears in Rule 4-1.4 (Model Rule 1.4). The committee balanced the solicitation concern against the value of informing a client whose will may no longer work as intended.

Citations and references

Rules of Professional Conduct:

• Canons 27, 28 [Canons of Professional Ethics; advertising and solicitation; see current Rule 4-7.18(a)]

Other opinions cited:

• ABA Opinion 210: notifying clients of changes in the law affecting their affairs

See also

• FL Bar Ethics Op. 64-60: A Will-Update Memorandum for Clients
• FL Bar Ethics Op. 65-20: Wills for a Group of Coworkers

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-61/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-61-1.pdf

Original opinion text

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

FLORIDA BAR ETHIC OPINION
OPINION 64-61
October 6, 1964
Advisory ethics opinions are not binding.
A lawyer may notify his clients, whose wills are prepared by the lawyer, of changes in federal tax law or regulations which may affect their wills.
Canons: 27, 28 [See current 4-7.18(a)]
Opinion: ABA 210
Vice-Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar inquires if a lawyer may ethically notify his clients, whose wills are prepared by the lawyer, of changes in federal tax law or regulations which may affect a will previously prepared by the lawyer for his client.
A lawyer may ethically call a client's attention to changes in the law which may bear on the client's previously-executed will. The propriety depends upon these conditions: the lawyer (or his firm) prepared the will; the lawyer has no reason to believe that the will has been revoked or superseded; the lawyer has reason to believe that, because of the new developments in the law, the existing will may no longer achieve the testator's desires; and the lawyer does not solicit or suggest his or his firm's professional employment. An indirect suggestion of employment is, unfortunately, unavoidably implicit in the communication, but this ethical weakness is outweighed by the benefit and service to the client. An ethical lawyer will not, of course, send out such communications indiscriminately, but will be certain that they are clearly justified by a lawyer-client relationship and by the client's need to know.
The subject is also covered by Opinion 210 of the Professional Ethics Committee of the American Bar Association and is discussed in Drinker, Legal Ethics, page 254.