Can a lawyer prepare wills for a nonprofit's members when the nonprofit gathers the information and relays all communications between lawyer and member?

Plain-English summary

A not-for-profit organization offered its Illinois members a free will-drafting plan. A member signed a request and completed a questionnaire supplied by the organization; the organization gathered the information and sent it to an attorney, who drafted the will and returned it, along with any requests for more information, to the organization, which then transmitted everything to the member. The attorney never had direct contact with the member or attended the will's execution. The inquiry asked whether the participating lawyer aids the unauthorized practice of law.

The committee concluded the lawyer facilitates the organization's unauthorized practice of law in violation of Rule 5.5(b), which bars assisting a non-lawyer in activity that constitutes the unauthorized practice of law. It analogized to ISBA Opinions 90-13 (bank-directed land trust and deed), 474 (insurance-agency estate-planning proposals), and 261 (bank-directed will preparation), all found to aid unauthorized practice. The committee also invoked In re Yamaguchi, where the Illinois Supreme Court found that a lawyer who signed but did not independently review documents completed and litigated by a non-lawyer aided the unauthorized practice of law; if the lawyer here merely adds pro forma approval to organization-prepared drafts without independent review, the same result follows.

Beyond unauthorized practice, the committee identified further problems. Because the organization selects and pays the lawyer, questions arise about who is the client and who may seek redress for negligence. Rule 5.4(c) bars a payer from directing the lawyer's professional judgment, so the lawyer must exercise independent judgment for the member (citing Opinion 87-2 on agent-retained representation). Routing all communication through the organization could deprive the lawyer of the direct communication Rule 1.4(b) requires, and transmitting communications through the organization divulges the member's confidences and secrets to it, implicating Rule 1.6.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule 5.5(a), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer draft wills for a nonprofit's members through the nonprofit's plan?

A: The opinion concluded that under the described plan the lawyer aids the organization's unauthorized practice of law in violation of Rule 5.5(b), because the organization gathers the information and relays all communications.

Q: What if the lawyer just reviews and signs the organization's drafts?

A: The opinion concluded that, under In re Yamaguchi, adding pro forma approval without independent review and verification of the member's position aids the unauthorized practice of law.

Q: What confidentiality problem does routing communications through the nonprofit create?

A: The opinion concluded that transmitting all communication through the organization divulges the member's confidences and secrets to it, implicating Rule 1.6, and may deprive the lawyer of the direct communication Rule 1.4(b) requires.

Background and rules framework

The opinion applied Rule 5.5(b) (assisting unauthorized practice) as its core holding, with Rule 5.4(c) (no direction of the lawyer's judgment by a payer), Rule 1.4(b) (communication adequate to informed decisions), and Rule 1.6 (confidentiality) identified as additional problems with routing the representation through the organization (Model Rules 1.4, 1.6, 5.4, 5.5).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 (unauthorized practice) / Illinois Rule 5.5(b)
• Model Rule 5.4 (professional independence) / Illinois Rule 5.4(c)
• Model Rule 1.4 (communication) / Illinois Rule 1.4(b)
• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6

Cases:

• In re Yamaguchi, 118 Ill. 2d 417, 515 N.E.2d 1235 (1987), lawyer who signed but did not review non-lawyer-prepared filings aided unauthorized practice.

Other opinions cited:

• ISBA Opinions 90-13, 474, 261: lawyers aiding institutions' unauthorized practice; Opinion 87-2 on agent-retained representation.

See also

• ISBA Ethics Op. 90-20: Lawyer Working for a Living-Trust Marketer
• ISBA Ethics Op. 90-13: Bank Preparing Land Trust or Deed
• ISBA Ethics Op. 90-19: Nonlawyer Preparing Trust Documents

Source

• Landing page: https://www.isba.org/ethics/opinions/9035