Can a lawyer let an insurance agent solicit will clients, gather their information, and send it in for the lawyer to draft the will?

Plain-English summary

The Committee was asked whether an attorney could let an insurance agent act as a lay intermediary who solicits will business: contacting prospective testators, recommending the attorney, gathering all information needed to draft a will, and transmitting it to the attorney, who drafts the will to be signed at the testator's home, with the attorney possibly never meeting or discussing the will with the client.

The opinion concludes the arrangement is improper. It relies on the Committee's prior Opinion No. 11 (Nov. 20, 1962), which found it improper for an attorney to let a lay intermediary engaged in estate planning regularly refer will and trust clients because of a close relationship between them. The opinion states the arrangement implicates Rule 1.1 (competent representation) and violates Rule 5.4(c), which bars a lawyer from permitting a person who recommends, employs, or pays the lawyer to direct or regulate the lawyer's professional judgment. It explains that a lawyer drafting a will must investigate the facts himself sufficiently to render complete service and ensure the testator's true intentions are expressed, and may not rely entirely on an outside lay intermediary to supply the facts. The opinion adds that the prearranged recommendation may violate the rules against solicitation, citing Rule 7.2(i).

In practice

Under this opinion, a lawyer cannot delegate will-client intake and fact-gathering to an insurance agent or other lay intermediary who solicits and recommends the lawyer. The opinion applies Rule 1.1 to require the lawyer's own competent investigation, Rule 5.4(c) to bar the intermediary from directing the lawyer's judgment, and Rule 7.2(i) to the prearranged recommendation. It frames the lawyer's direct responsibility to ascertain the testator's intentions as the reason reliance on the intermediary is insufficient.

Common questions

Q: Can an insurance agent gather will information for me so I just draft the document?

A: No. The opinion holds the lawyer must make a sufficient investigation of the facts himself and may not rely on an outside lay intermediary to supply all the necessary facts.

Q: Why does using a referring intermediary raise a problem beyond convenience?

A: The opinion cites Rule 5.4(c), which bars a lawyer from letting a person who recommends, employs, or pays him direct or regulate his professional judgment, and notes the prearranged recommendation may violate the solicitation rules under Rule 7.2(i).

Q: What does the lawyer have to do personally?

A: The opinion states the lawyer is primarily responsible for being certain the testator's true intentions are expressed in the will, which requires the lawyer's own competent investigation under Rule 1.1.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.1 (competence; Model Rule 1.1), Rule 5.4(c) (professional independence; a recommender may not direct the lawyer's judgment; Model Rule 5.4), and Rule 7.2(i) (advertising and solicitation; giving value for a recommendation; Model Rule 7.2). It follows the Committee's earlier Opinion No. 11 (1962) on lay intermediaries in estate planning.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / MS RPC 1.1 (competent representation)
• MR 5.4 / MS RPC 5.4(c) (a recommender may not direct or regulate the lawyer's professional judgment)
• MR 7.2 / MS RPC 7.2(i) (giving anything of value for recommending the lawyer's services)

Other opinions cited:

• Mississippi Ethics Opinion No. 11 (Nov. 20, 1962): improper to let a lay intermediary in estate planning regularly refer will and trust clients

See also

• MS Bar Ethics Op. 94: Volunteering Will Advice
• MS Bar Ethics Op. 91: Contingent-Fee Sharing With a Medical Consultant
• MS Bar Ethics Op. 74: Lawyer on a TV News Feature

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/51/
• Original PDF: https://www.msbar.org/media/1083/et_op_51-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 51

OF THE MISSISSIPPI BAR

RENDERED May 04, 1979

AMENDED April 06, 2013

SOLICITATION - INDEPENDENCE OF LAWYER - Improper for an Attorney to Permit a Lay Person to be an Intermediary Between Attorney and Client in Preparation of Will.

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

May an attorney allow an insurance agent, a lay intermediary, to solicit business for him, by making contact with persons who may desire a will, recommending the attorney, obtaining all necessary information to draw a will and transmitting the information to the attorney, who draws the will. The person would then sign the will in his home. It is not clear whether the attorney would even see and discuss the will with the testator, his client.

This question has previously been answered in Opinion No. 11, rendered by this Committee on November 20, 1962. It is improper for an attorney to allow a lay intermediary (engaged in estate planning) to regularly refer clients to the attorney for services involving wills and trusts, where such referral is obviously done largely because of the close relationship of the attorney and the lay intermediary.

Such action would also Rule 1.1 of the Mississippi Rules of Professional Conduct (MRPC) which requires an attorney to represent his client competently. It also violates Rule 5.4(c), MRPC, which provides that a lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

When an attorney accepts the employment of drafting a will, he should make a sufficient investigation of the factual situation to render complete service to the client. An attorney-client relationship is established. The attorney should not rely on a lay intermediary (outside the attorney's office) to ascertain the factual situation. The particular training of the attorney is used to determine and advise all consequences of various methods available in wills and trusts for testamentary transfers. The attorney is primarily responsible to be certain that the testator's true intentions are expressed in the will. Relying on an independent lay intermediary completely to supply all necessary facts would be improper and insufficient.

Such action may well violate rules against solicitations where the attorney and lay person prearrange for the attorney to be recommended. See Rule 7.2(i), MRPC.

The attorney-client relationship is the sacred basis of our legal profession, and all attorneys should strive to maintain this relationship with dignity in a manner above reproach.