Can a lawyer review and approve living-trust documents that a non-lawyer company prepared and sold to a customer, when the company hired and pays the lawyer?

Plain-English summary

The Committee addressed a non-lawyer "Seller" who advertised living trusts on radio and television. When a purchaser was found, the Seller tailored trust documents to the purchaser and then asked a lawyer to look over and approve the documents after they were prepared but before signing, with the lawyer confirming the documents were what the purchaser wanted.

The opinion concludes that the Seller, assumed not to be a lawyer, was engaged in the unauthorized practice of law in violation of Section 73-3-55 of the Mississippi Code, which makes it unlawful to practice law without a license and treats writing or dictating instruments such as contracts or wills, or giving counsel, as practicing law. Because the Seller drafted and tailored the trust documents, the Seller was practicing law unlawfully.

The opinion concludes a lawyer could not ethically assist the Seller. Rule 5.5(b) provides that a lawyer shall not assist a non-member of the bar in activity that constitutes the unauthorized practice of law, and the opinion notes the purpose of limiting practice to bar members is to protect the public from unqualified persons. It compares the arrangement to Ethics Opinion No. 33 (improper for a lawyer to participate in a loan closing where the lender renders quasi-legal services and shares attorney's fees).

The opinion concludes the arrangement is fraught with conflict problems: the lawyer is hired and paid by the Seller, has no contact with the purchaser until after the Seller has determined the purchaser's needs and prepared the documents, and would review them without consulting the purchaser about their needs or best interests. The lawyer would owe duties to the original client (the Seller), so the opinion concludes the lawyer could violate Rules 1.1, 1.2(a), 1.3, 1.4(a), 1.7(b), 1.8(f), and 5.5, and that a lawyer must refuse employment where another client's interests would impair the lawyer's professional judgment or where a third party who pays the lawyer would direct that judgment.

In practice

Under this opinion, a lawyer asked to "review and approve" estate-planning documents that a non-lawyer business drafted, tailored, and sold to a customer is in the arrangement the opinion addressed. The opinion concludes the non-lawyer's drafting is the unauthorized practice of law, that the lawyer may not assist it under Rule 5.5, and that the lawyer may not represent the purchaser because the seller, who hires and pays the lawyer, would direct the lawyer's professional judgment, creating the conflicts described in Rules 1.7(b) and 1.8(f).

Common questions

Q: Is a non-lawyer company that drafts and sells tailored living trusts practicing law?

A: The opinion concludes yes; under Section 73-3-55 of the Mississippi Code, writing or dictating instruments and giving counsel is the practice of law, so a non-lawyer doing so is engaged in the unauthorized practice of law.

Q: Can a lawyer just review the documents the seller prepared?

A: Per the opinion, no; reviewing and approving documents the non-lawyer seller drafted assists the unauthorized practice of law in violation of Rule 5.5.

Q: Why can't the lawyer represent the purchaser of the documents?

A: The opinion concludes the lawyer is hired and paid by the seller and would let the seller direct the representation, creating serious conflicts under Rules 1.7(b) and 1.8(f); the lawyer must refuse employment where a paying third party would impair professional judgment.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 5.5 (unauthorized practice of law), together with the competence and diligence rules (1.1, 1.3), the rules on scope and communication (1.2(a), 1.4(a)), and the conflict rules on a lawyer's professional independence (1.7(b) and 1.8(f), barring a paying third party from directing the lawyer's judgment), which correspond to the same-numbered Model Rules. It reads these against Section 73-3-55 of the Mississippi Code defining the practice of law.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 5.5 (unauthorized practice of law; 5.5(b) assisting a non-lawyer) (cf. Model Rule 5.5)
• MRPC 1.7(b) (conflict of interest) (cf. Model Rule 1.7)
• MRPC 1.8(f) (compensation from a third party) (cf. Model Rule 1.8)
• MRPC 1.1, 1.2(a), 1.3, 1.4(a) (competence, scope, diligence, communication)

Statutes:

• Miss. Code Section 73-3-55 (defining and prohibiting the unauthorized practice of law).

Other opinions cited:

• Mississippi Ethics Opinion No. 33 (April 2, 1976): lawyer participation in a loan closing with a non-lawyer rendering quasi-legal services and sharing fees.

See also

• MS Bar Ethics Op. 221: Reporting Out-of-State UPL
• MS Bar Ethics Op. 211: Insurer Control of Defense Counsel

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/212/
• Original PDF: https://www.msbar.org/media/1062/et_op_212-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 212

OF THE MISSISSIPPI BAR

RENDERED March 04, 1994

AMENDED April 06, 2013

UNAUTHORIZED PRACTICE OF LAW - CONFLICT OF INTEREST - A lawyer shall not represent a client who drafts and provides living trust documents to purchasers and further may not represent the purchaser of such documents.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

An individual ("Seller") advertises on the radio and t.v. for the sale of Living Trusts. When a Purchaser is procured, the "Seller" of the Trust tailors the documents to the Purchaser. The "Seller" of the Trust documents requests a lawyer to look over and approve the documents, after the documents are prepared, but before they are signed. The lawyer ascertains that the documents are what the Purchaser wants.

It is assumed that the "Seller" of the documents is not a lawyer. Thus, the "Seller" would be engaged in the unauthorized practice of law in violation of Section 73-3-55, Mississippi Code of 1972 as amended.

This statute provides in part that:

It shall be unlawful for any person to engage in the practice of law in this State who has not been licensed according to law. Any person violating the provisions of this Section shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished in accordance with the provisions of Section 97-23-43. Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any Court in this State, or give any counsel or advice therein, or who shall write or dictate any . . . contract, or Last Will and Testament . . . shall be held to be engaged in the practice of law. (Section 73-3-55, Mississippi Code of 1972, as amended.)

Thus, it is clear that the "Seller" of such Living Trust documents is not an attorney licensed according to law and thus is engaged in the unauthorized practice of law in this State.

A lawyer could not ethically assist the "Seller" in the unauthorized practice of law. Rule 5.5(b) of the Rules of Professional Conduct provides that, "A lawyer shall not assist a person who is not a member of the Bar in the performance of activity that constitutes the unauthorized practice of law." The comment to Rule 5.5 provides, "The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the Bar protects the public against rendition of legal services by unqualified persons."

Thus, any lawyer assisting such a ''Seller" in the unauthorized practice of law would violate Rule 5.5 of the Rules of Professional Conduct. The basic reason for this rule, and for the statutes prohibiting the practice of law by unauthorized persons, is to protect the public against the rendition of legal services by unqualified persons.

The situation presented to the Ethics Committee in the fact scenario set out above is exactly the problem sought to be avoided by Section 73-3-55, Mississippi Code of 1972, and Rule 5.5 of the Rules of Professional Conduct.

In a somewhat similar factual situation, this Committee held in Ethics Opinion No. 33, rendered April 2, 1976, that it was improper for a lawyer to participate in a loan closing transaction in which the mortgage lender renders legal or quasi-legal services and receives a division of "attorney's fees", ostensibly the lawyers. The factual situation set out hereinabove is fraught with problems. It appears that the lawyer was hired and paid by the "Seller of the documents", without ever having any contact with the client prior to the documents being sent to the lawyer for approval. The needs of the Purchaser/Client would be determined by the "Seller" and then personnel of the Seller would tailor the documents to the needs of the Purchaser/Client. Only after the documents had been completed by the "Seller" would they be forwarded to the lawyer for review. The Purchaser/Client has no knowledge of the lawyer nor his involvement until the lawyer contacts the Purchaser/Client with the documents prepared by the "Seller". The lawyer ostensibly would be reviewing and approving the documents and would do so without consulting with the Purchaser/Client or determining the Purchaser/Client's need for the services involved or whether the services being rendered were in the best interest of the Purchaser/Client. Such a lawyer would owe duties to his original client, the "Seller", creating serious conflict of interest problems.

In this set of facts, the lawyer could violate Rules 1.1, 1.2 (a), 1.3, 1.4(a), 1.7(b), 1.8(f), and 5.5 of the Rules of Professional Conduct. A lawyer must refuse employment if the interest of another client would impair the professional judgment of the lawyer. Further, the lawyer would be subject to permitting a person, who recommends, employs, or pays him to render legal services for another, to direct or regulate his professional judgment in rendering such legal services. A serious conflict of interest would naturally arise between the "Seller" Client and the "Purchaser" client. For the myriad of reasons set out above, this situation should be avoided at all costs by members of the Bar.