Can a lawyer serve as general counsel to an 'estate protection service' and prepare trust documents for its customers?

Plain-English summary

An organization styled "Estate Protection Service," which offered to act as financial, management, and economic consultants in setting up "family circle trust organizations" apparently to avoid probate and estate taxes, asked a Florida lawyer to serve as its general counsel. The lawyer would prepare trust indentures and other documents for the service's customers, who would be told they could retain their own counsel to review them; if a customer did not, the general counsel would, with the client's consent, represent the client and the "family trust organization."

The committee treated the various unauthorized-practice questions as outside its jurisdiction, but observed that selling a service whose only apparent purpose was organizing an estate from the standpoint of potential tax liability, unaccompanied by conventional business relationships such as insurance, accounting, or a statutorily qualified trustee, would "surely suffer for lack of a label" if it did not constitute the practice of law. The committee found the arrangement not remarkably different from those it had condemned in Opinions 64-33 and 64-70, and concluded it would be improper for the lawyer to act for the service in preparing documents for its prospective or actual customers, even assuming the service was not engaged in the unauthorized practice of law. The committee added that, because the lawyer would not be a full-time employee, he could not use the title "general counsel," citing the withdrawn Opinion 66-19.

Currency note

This opinion was issued in April 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 35 (lay intermediaries) and 47 (aiding the unauthorized practice of law). Those subjects are now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar (professional independence) and Rule 4-5.5 (unauthorized practice) (Model Rules 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 Treat this page as historical context, not current guidance.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. The cited Opinion 66-19 has since been withdrawn.

Common questions

Q: Can a lawyer be 'general counsel' to a company that sells estate-planning packages and draft the trusts it markets?

A: Under this opinion, no. The committee found it improper for a lawyer to prepare trust documents for the customers of an estate protection service, even assuming the service itself was not engaged in the unauthorized practice of law.

Q: Why was the arrangement improper even apart from the unauthorized-practice question?

A: The committee treated it as akin to arrangements it had previously condemned, where a lay intermediary stood between the lawyer and the customers receiving the documents.

Q: Could the lawyer at least use the 'general counsel' title?

A: No. Because he would not be a full-time employee of the service, the committee said he could not use the title general counsel, citing the withdrawn Opinion 66-19.

Background and rules framework

The opinion applied the former Canons 35 (lay intermediaries controlling or exploiting a lawyer's services) and 47 (aiding the unauthorized practice of law). Those subjects are now addressed by Rule 4-5.4 of the Rules Regulating The Florida Bar (professional independence of a lawyer) and Rule 4-5.5 (unauthorized practice); the Model Rule analogues are Rules 5.4 and 5.5.

Citations and references

Rules of Professional Conduct:

• Canon 35 [Canons of Professional Ethics; lay intermediaries]
• Canon 47 [Canons of Professional Ethics; aiding the unauthorized practice of law]

Other opinions cited:

• Florida Opinions 64-33, 64-70, and 66-19 (66-19 since withdrawn)

See also

• FL Bar Ethics Op. 67-14: Broker Employing a Lawyer to Prepare a Deed
• FL Bar Ethics Op. 67-15: Trust-Company Referral to Prepare a Trust

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-11/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-11.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-11
April 25, 1967
Advisory ethics opinions are not binding.
An arrangement whereby the general counsel of an "estate protection service" would prepare various trust indentures or other documents for consideration of clients of the service and on occasion represent such clients is improper.
Canons: 35, 47
Opinions: 64-33, 64-70, 66-19
Chairman MacDonald stated the opinion of the committee:
An organization styled as "Estate Protection Service," offering to act as financial, management, and economic consultants in establishing "family circle trust organizations" for the apparent purpose of avoiding probate and estate taxes for its clientele, has requested a member of The Florida Bar to serve as its general counsel. Apparently the attorney would prepare various trust indentures or other documents for the consideration of these clients with the understanding that the proprietors of the service would advise such clients that they might retain their own counsel for review of these documents. If the customers did not utilize their own attorneys then the general counsel would undertake with the consent of the client to represent the interests of the client and what is termed "the family trust organization."
A number of inquiries are posed, including several relating to the definition of the unauthorized practice of law. Necessarily that is a matter without the scope of the opinion of this Committee. However, it does not seem improvident to observe that the selling of a service for the only apparent purpose of organizing an estate from the principal standpoint of potential tax liability, apparently unaccompanied by any of the other conventional business relationships of insurance, accounting or a statutorily qualified trustee, will surely suffer for lack of a label if it does not constitute the practice of law.
The arrangement posed is not remarkably different from those condemned in our previous Opinions 64-33 and 64-70. We therefore believe that it would be improper for the attorney to act for the Estate Protection Service, even assuming that it is not engaged in the unauthorized practice of law, in the preparation of documents for submission to prospective customers or actual customers of the service.
We necessarily also observe that inasmuch as the attorney is not to be a full-time employee of the service he may not use the title general counsel (see our Opinion 66-19) (since withdrawn).