Can a law firm run a separately named business that sells standard will forms to the public, and can that business prepare individual wills?
NY State Bar Ethics Opinion 636: Selling standard will forms to the public
Short answer: The opinion concluded that a law firm may run a separately named business that sells general standard will forms to the public, provided the forms carry a proper caveat, because that is not the practice of law; but preparing or advising on individual wills is the practice of law, which requires using a lawyer principal's name and bars nonlawyer ownership or fee sharing.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A law firm proposed to set up a separate entity under a name like "The Will Store," not containing the principals' names, to (a) sell "prepared Last Wills and Testaments" to the public and (b) prepare and supervise the execution of wills for individual members of the public.
On the first proposal, the committee explained that a lawyer may write and be paid for writing on legal topics, including publishing standard form wills, so long as the lawyer does not purport to render individual legal advice and the forms carry an appropriate warning that they are general and should not be used to solve individual problems (EC 2-5, DR 2-104(E), citing N.Y. State 625). A lawyer may also run a separate business that is not the practice of law, so long as the lawyer does not use it to solicit legal work, does not recommend its products to clients, and otherwise complies with the rules. So a firm could establish a separate entity to publish general standard will forms with the required caveat, and because that activity is not the practice of law, it could use any lawful trade name and operate with nonlawyers (DR 3-103(A)).
The committee drew a sharp line at individualization. When a lawyer who holds himself out as such performs activities touching on the practice of law, the lawyer is held to all professional standards even outside a conventional practice, and even where the same activity by a nonlawyer might not be the unlawful practice of law. The committee stressed that what constitutes the practice of law is a question of law beyond its jurisdiction, but offered guidance: if the wills are individualized or offered as solutions to specific problems, or if an employee helps select or adapt a form to particular circumstances, the business becomes the practice of law (EC 3-5, citing State v. Winder and People v. Divorce Associated and Publishing).
On naming, the committee concluded that if the business is not the practice of law it may use any lawful trade name, but if it is the practice of law the firm must use one or more lawyer principals' names (EC 2-11, DR 2-102(B)). It saw nothing inherently misleading in "The Will Store" as a motto used alongside a lawyer principal's name, but a trade name may not stand alone where the firm's activities would constitute the practice of law, and it would be improper to include a nonlawyer principal or to share fees with a nonlawyer (DR 3-101(A), 3-102(A), 3-103(A)). The committee answered the first question yes and the second question no.
Currency note
This opinion was issued in 1992, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on the unauthorized practice of law, firm names, and sharing fees with nonlawyers have since been renumbered and revised. 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, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer sell generic will forms to the public under a trade name?
A: Yes. The committee held that publishing general standard will forms with a caveat that they should not be used to solve individual problems is not the practice of law, so the business may use any lawful trade name.
Q: When does selling will forms become the practice of law?
A: When the wills are individualized or an employee advises on selecting or adapting a form to a customer's specific situation. The committee said that crosses into the practice of law (EC 3-5).
Q: Can the will business be named without a lawyer's name or include nonlawyer owners?
A: Only if it is not the practice of law. If it is, the business must use a lawyer principal's name and may not have nonlawyer principals or share fees with nonlawyers (DR 2-102(B), 3-101(A), 3-102(A), 3-103(A)).
Background and rules framework
The opinion interpreted New York's former Code: DR 2-102(B) (firm names and trade names), DR 2-104(E) (writing on legal topics), DR 3-101(A) (aiding unauthorized practice), DR 3-102(A) (sharing fees with nonlawyers), and DR 3-103(A) (partnership with a nonlawyer), with EC 2-5, 2-11, and 3-5. The closest Model Rule analogues are Rule 5.4 (professional independence; fee sharing), Rule 5.5 (unauthorized practice), and Rule 7.5 (firm names). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 5.4 (professional independence of a lawyer)
- MR 5.5 (unauthorized practice of law)
- MR 7.5 (firm names and letterheads)
- NY DR 2-102(B), DR 2-104(E), DR 3-101(A), DR 3-102(A), DR 3-103(A); EC 2-5, 2-11, 3-5
Cases:
- State v. Winder, 42 A.D.2d 1039 (4th Dep't 1973): selling a divorce kit with advice is the practice of law
- People v. Divorce Associated and Publishing Ltd., 95 Misc. 2d 340 (Sup. Ct. 1978): unauthorized practice through form sales
- New York County Lawyer's Ass'n v. Dacey, 21 N.Y.2d 694 (1967): general publication of legal forms
Other opinions cited:
- N.Y. State 625 (1992): publishing standard forms with a caveat
- N.Y. State 557 (1984): lawyer's separate business not constituting the practice of law
See also
- NY State Bar Op. 644: A corporation with nonlawyers for tax reductions
- NY State Bar Op. 662: Affiliating with a nonlawyer in tax proceedings
- NY State Bar Op. 637: Former judicial office and other admissions on letterhead
Source
- Landing page: https://nysba.org/opinion-636/