Can a lawyer for a bank's trust department prepare guidelines for drafting trusts and let the bank distribute them to other lawyers who draft trusts naming the bank as trustee?

Plain-English summary

A member represented the trust department of a bank. The department's policy was to employ, for a particular trust, the attorney who had brought the trust to the bank, and before accepting a trust the inquiring lawyer reviewed and approved it from the bank's standpoint. He had been asked to prepare guidelines for the attorneys preparing such trusts, to be given to any lawyer who inquired before drafting a trust agreement. The inquiry was whether preparing such guidelines was improper, and in particular whether Canon 35 would be violated.

The committee was unanimous that there would be no ethical impropriety in preparing the guidelines, provided they were prepared for distribution only to attorneys. Two members suggested that the guidelines should be submitted in the name of the bank.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 35 of the Canons of Professional Ethics, which addressed lay intermediaries between lawyer and client; a lawyer's professional independence is now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rule 5.4). 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 Treat this page as historical context, not current guidance.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: Can a bank's trust counsel prepare trust-drafting guidelines for the bank to circulate?

A: Yes. The committee unanimously found no impropriety in preparing such guidelines, provided they were distributed only to attorneys.

Q: Were there any conditions or suggestions?

A: The guidelines had to be distributed only to attorneys, and two members suggested they be submitted in the name of the bank.

Background and rules framework

The opinion applied former Canon 35 of the Canons of Professional Ethics, which guarded against a lay agency intervening between lawyer and client and controlling the lawyer's services. A lawyer's professional independence from those who pay for or direct the lawyer's services is now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rule 5.4). The committee's condition (distribution to attorneys only) kept the guidance within the legal profession rather than directed at the public.

Citations and references

Rules of Professional Conduct:

• Canon 35 [Canons of Professional Ethics; lay intermediaries; see current Rule 4-5.4]

See also

• FL Bar Ethics Op. 67-15: Trust-Company Referral to Prepare a Trust

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-12.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-12
February 27, 1965
Advisory ethics opinions are not binding.
A lawyer who is legal counsel for the trust department of a bank may properly prepare guidelines for preparation of trusts that will be acceptable to the bank, in order that the bank may distribute the guidelines to other lawyers who are drafting trust instruments under which the bank will serve as trustee.
Canon: 35
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states that he represents the trust department of a bank. It is the policy of that trust department to employ the attorney for a particular trust who has brought the trust to the bank. Before the trust is accepted, it is the inquiring lawyer's duty to review the same and approve it from the bank's standpoint. In this connection, he has been requested to prepare guidelines for the use of the attorneys preparing such trusts. These guidelines would be given to any lawyer making inquiry preparatory to the drafting of a trust agreement. The inquiry is if there is any ethical impropriety in preparing such guidelines, as requested by the bank. In particular, he inquires if Canon 35 would be violated.
It is the unanimous opinion of this Committee that there would be no ethical impropriety in preparing such guidelines provided the same are prepared for distribution only to attorneys.
Two members of the Committee suggest that such guidelines should be submitted in the name of the bank.