Can a lawyer join a church-paid group legal services plan that pays for members' trusts only if the trust leaves the church at least $20,000?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Currency note
This opinion was issued in 2002, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. The DR 2-103(D) and DR 5-107(B) provisions discussed here are addressed in the current rules by Ohio Prof. Cond. R. 7.2 and 5.4. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Plain-English summary
The Board addressed a group legal services plan paid for by a church to provide estate-planning services at no cost to its members. The plan included a condition: if a member needed a self-trusteed revocable trust, the church would bear the cost only if the lawyer prepared the trust with a provision leaving the church, on the member's death, a minimum of $20,000 or 20% of the distributable trust, whichever was greater. The Board concluded that participating in such a plan is improper under DR 2-103(D) and DR 5-107(B).
The Board's reasoning turned on who was directing the lawyer's work. Under DR 5-107(B), a lawyer must not permit a person who recommends or pays the lawyer to direct or regulate the lawyer's professional judgment in rendering legal services. Here the church, as the payer, conditioned its payment on a drafting term that benefited the church itself, which interfered with the lawyer's independent judgment on behalf of the member-client. DR 2-103(D) limited the organizations through which a lawyer could accept group-plan engagements, and a plan structured to channel a fixed benefit back to the sponsor fell outside what the rule allowed.
Common questions
Q: Can a lawyer take estate-planning matters through a church-paid group legal services plan?
A: Not on these terms. The opinion concluded it is improper under DR 2-103(D) and DR 5-107(B) when the church pays for a member's trust only if the lawyer drafts it to leave the church a set minimum amount.
Q: What made this plan improper rather than a permissible group plan?
A: Per the opinion, the payer (the church) conditioned payment on a drafting provision benefiting the payer, which let the third party who paid the lawyer direct the lawyer's professional judgment, contrary to DR 5-107(B).
Q: Would the answer change if the bequest amount were smaller?
A: The opinion addressed the specific $20,000-or-20% condition and found it improper; it did not opine on a plan without a payer-directed bequest condition.
Background and rules framework
The opinion interprets former Ohio Code of Professional Responsibility DR 2-103(D) (accepting employment through qualifying organizations and group legal services plans) and DR 5-107(B) (a lawyer must not permit a person who recommends, employs, or pays the lawyer to direct or regulate the lawyer's professional judgment). The corresponding current provisions are Ohio Prof. Cond. R. 7.2 (Model Rule 7.2) on recommending a lawyer's services and Ohio Prof. Cond. R. 5.4 (Model Rule 5.4) on the professional independence of a lawyer.
Citations and references
Rules of Professional Conduct:
- Former Ohio Code of Professional Responsibility DR 2-103(D), DR 5-107(B)
- Current analogues: Ohio Prof. Cond. R. 7.2, 5.4 (Model Rules 7.2, 5.4)
See also
- Ohio BPC Op. 1989-008: Group Legal Services Plan for a Teachers Association
- Ohio BPC Op. 1998-001: Lawyer-Owned For-Profit Group Legal Services Plan
- Ohio BPC Op. 1988-009: Soliciting Referrals From Non-Bar Organizations
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-02-011.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2002-11
Issued August 9, 2002
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: It is improper under DR 2-103(D) and DR 5-107(B) of the Ohio Code of
Professional Responsibility for a lawyer to participate in a group legal services plan paid
for by a church to provide estate planning services at no cost to church members, but
which contains a provision that if a church member needs a self-trusteed revocable trust,
the church will bear the cost only if the lawyer prepares the trust with a provision that
upon the member’s death the church will receive a minimum of $20,000 or 20% of the
distributable trust, whichever amount is greater.
OPINION: This opinion addresses a question regarding a lawyer’s participation in a
group legal services plan.
Is it proper for a lawyer to participate in a group legal services plan paid
for by a church to provide estate planning services at no cost to church
members, but which contains a provision that if a church member needs a
self-trusteed revocable trust, the church bears the cost only if the lawyer
prepares the trust with a provision that upon the member’s death the
church will receive a minimum of $20,000 or 20% of the distributable
trust, whichever amount is greater?
Under the facts presented, a non-profit religious organization [herein referred to as a
church] wishes to sponsor a group legal services plan to provide estate planning services
to its church members. Church members interested in estate planning services would
contact the planned giving department of the church. The planned giving department
would refer the church member to a law firm for consultation. The law firm would
prepare the necessary and appropriate estate documents for the church members. The
church would pay the law firm its standard hourly rates for the legal services. The church
members would receive the estate planning legal services at no cost, with one exception.
The exception is that for a church member to receive a self-trusteed revocable trust at no
cost, the church’s group legal services plan requires that the trust contain a provision that
upon the church member’s death, the church will receive a minimum amount of $20,000
or 20% of the distributable trust, whichever amount is greater. In the event that the
church member does not want to bequeath such amount to the church, the church member
would bear the cost for preparing the trust. All monies received through bequests by
church members are used in furtherance of the church’s religious purpose.
Op. 2002-11 2
The Ohio Code of Professional Responsibility encourages lawyers’ participation in
qualified legal assistance organizations as a means by which the legal profession makes
high quality legal services available to all.
EC 2-32 As a party [sic] of the legal profession's commitment to the
principle that high quality legal services should be available to all,
attorneys are encouraged to cooperate with qualified legal assistance
organizations providing prepaid legal services. Such participation should
at all times be in accordance with the basic tenets of the profession:
independence, integrity, competence and devotion to the interests of
individual clients. An attorney so participating should make certain that
his relationship with a qualified legal assistance organization in no way
interferes with his independent, professional representation of the interests
of the individual client. An attorney should avoid situations in which
officials of the organization who are not lawyers attempt to direct
attorneys concerning the manner in which legal services are performed for
individual members, and should also avoid situations in which
considerations of economy are given undue weight in determining the
attorneys employed by an organization or the legal services to be
performed for the member or beneficiary rather than competence and
quality of service. An attorney interested in maintaining the historic
traditions of the profession and preserving the function of a lawyer as a
trusted and independent advisor to individual members of society should
carefully assess such factors when accepting employment by, or otherwise
participating in, a particular qualified legal assistance organization, and
while so participating should adhere to the highest professional standards
of effort and competence.
A qualified legal assistance organization is defined as “an office or organization of one
of the four types listed in DR 2-103(D)(1)-(4), inclusive that meets all the requirements
thereof.” Definitions, Ohio Code of Professional Conduct. The four types of qualified
legal assistance organizations listed in DR 2-103(D)(1)-(4) are a legal aid or public
defender office; a military assistance office; a lawyer referral service; and a bona fide
organization that recommends, furnishes, or pays for legal services to its members or
beneficiaries.
A church operating a group legal services plan for its members is an example of a
qualified legal assistance organization referred to in DR 2-104(D)(4) as a bona fide
organization. A lawyer is permitted to participate with a group legal services plan of a
bona fide organization, such as a church, if the requirements of DR 2-103(D)(4)(a)
through (h) are met and if there is no interference with the exercise of independent
professional judgment on behalf of the lawyer's client.
DR 2-103 (D) A lawyer shall not knowingly assist a person or
organization that furnishes or pays for legal services to others to promote
Op. 2002-11 3
the use of the lawyer's services or those of the lawyer's partner or associate
or any other lawyer affiliated with the lawyer or the lawyer's firm except
as permitted in DR 2-101(B). However, this does not prohibit a lawyer or
the lawyer's partner or associate or any other lawyer affiliated with the
lawyer or the lawyer's firm from being recommended, employed, or paid
by, or cooperating with, assisting, and providing legal services for, one of
the following offices or organizations that promote the use of the lawyer's
services or those of the lawyer's partner or associate or any other lawyer
affiliated with the lawyer or the lawyer's firm if there is no interference
with the exercise of independent professional judgment on behalf of
the lawyer's client: [Emphasis added].
(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide non-profit
community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved by a bar association.
(2) A military legal assistance office.
(3) A lawyer referral service that complies with division (C) of this
rule.
(4) Any bona fide organization that recommends, furnishes, or
pays for legal services to its members or beneficiaries provided all
of the following conditions are satisfied:
(a) The organization, including any affiliate, is organized
and operated so that no profit is derived by it from the
rendition of legal services by lawyers, and that, if the
organization is organized for profit, the legal services are
not rendered by lawyers employed, directed, supervised, or
selected by it except in connection with matters where the
organization bears ultimate liability of its member or
beneficiary.
(b) Neither the lawyer, the lawyer's partner, associate, or
any other lawyer affiliated with the lawyer or the lawyer's
firm, nor any non-lawyer, shall have initiated or promoted
the organization for the primary purpose of providing
Op. 2002-11 4
financial or other benefit to the lawyer, partner, associate,
or affiliated lawyer.
(c) The organization is not operated for the purpose of
procuring legal work or financial benefit for any lawyer as
a private practitioner outside of the legal services program
of the organization.
(d) The member or beneficiary to whom the legal services
are furnished, and not the organization, is recognized as the
client of the lawyer in the matter.
(e) Any member or beneficiary who is entitled to have legal
services furnished or paid for by the organization, if such
member or beneficiary so desires, may select counsel other
than that furnished, selected or approved by the
organization; provided, however, that the organization shall
be under no obligation to pay for the legal services
furnished by the attorney selected by the beneficiary unless
the terms of the legal services plan specifically provide for
payment.
Every legal services plan shall provide that any member or
beneficiary may assert a claim that representation by
counsel furnished, selected, or approved by the
organization would be unethical, improper, or inadequate
under the circumstances of the matter involved. The plan
shall provide for adjudication of a claim under division
(D)(4)(c) of this rule and appropriate relief through
substitution of counsel or providing that the beneficiary
may select counsel and the organization shall pay for the
legal services rendered by selected counsel to the extent
that such services are covered under the plan and in an
amount equal to the cost that would have been incurred by
the plan if the plan had furnished designated counsel.
(f) The lawyer does not know or have cause to know that
the organization is in violation of applicable laws, rules of
court, and other legal requirements that govern its legal
service operations.
(g) The organization has filed with the Supreme Court of
Ohio, on or before the first day of January of each year, a
report with respect to its legal service plan, if any, showing
its terms, its schedule of benefits, its subscription charges,
agreements with counsel, and financial results of its legal
Op. 2002-11 5
service activities or, if it has failed to do so, the lawyer does
not know or have cause to know of the failure.
DR 5-107(B) requires that a lawyer avoid influence by someone other than the client.
This rule buttresses the requirement of DR 2-103(D) that in order to participate with a
group legal services plan there be no interference with the exercise of independent
professional judgment on behalf of the lawyer’s client:
DR 5-107(B) A lawyer shall not permit 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.
The proposed church sponsored group legal services plan contains a provision that
improperly interferes with the exercise of independent professional judgment on behalf of
the lawyer's client and thus violates DR 2-103(D) and DR 5-107(B). The church bears
the cost of the lawyer’s preparation of a self-trusteed revocable trust at no cost to the
member only if the lawyer drafts the trust with a provision that upon the church
member’s death the church will receive a minimum amount of $20,000 or 20% of the
distributable trust, whichever amount is greater. In the event that the church member
does not want to bequeath such amount to the church, the church member must bear the
cost for the lawyer’s preparation of the trust.
The objectionable provision—trust preparation at no cost to the group legal services plan
member if the lawyer drafts a trust for the member with a provision that upon the
member’s death the church will receive a minimum amount of $20,000 or 20% of the
distributable trust, whichever amount is greater—places the participating lawyer in a
conflict. The more bequests made to the church, the more satisfied the church is with the
participating lawyer’s legal services. The more satisfied the church is with the lawyer’s
services, the more likely it is to refer plan members to that particular lawyer. The more
the lawyer is rewarded by having plan members referred to him or her, the more likely it
is that the lawyer will encourage inclusion of the trust provision that benefits the church.
The provision jeopardizes the lawyer’s independent professional judgment in providing
legal services that meet the client’s needs because the group legal services plan requires
that the church’s needs be given consideration in every client matter involving a self-
trusteed revocable trust.
Further, DR 2-103(D)(4)(a) requires that the organization is organized and operated so
that no profit is derived from the rendition of group legal services by the lawyer. As
proposed, the organization is operating its group legal service plan to receive large sums
of money (twenty thousand dollars or twenty percent of the distributable trust whichever
is greater) from the rendition of group legal services by the plan lawyer. The
organization is offering the lawyer’s preparation of a self-trusteed revocable trust as a no
cost plan benefit only if it receives a windfall from the provision of the legal services.
While this may not violate the letter of DR 2-103(D)(4)(a), for it is not “profit” in the
sense that the organization has non-profit status and the money from the bequest would
be used only in furtherance of religious purposes, it violates the spirit of the rule. DR 2-
Op. 2002-11 6
103(D)(4)(a) is a rule that is concerned with “profits” by a sponsoring organization
having an impact on the attorney-client relationship. As explained in the ABA
annotations to the DR 2-103(D)(4)(a) “[t]his provision is premised upon the connection
between the realization of profit by a lay organization from the rendition of legal services
by a lawyer and the potential for interference with the independent exercise of the
lawyer’s professional judgment to enhance that profit.” American Bar Foundation,
Annotated Code of Professional Responsibility 76 (1979).
In conclusion, this Board advises as follows. It is improper under DR 2-103(D) and DR
5-107(B) of the Ohio Code of Professional Responsibility for a lawyer to participate in a
group legal services plan paid for by a church to provide estate planning services at no
cost to church members, but which contains a provision that if a church member needs a
self-trusteed revocable trust, the church will bear the cost only if the lawyer prepares the
trust with a provision that upon the member’s death the church will receive a minimum of
$20,000 or 20% of the distributable trust, whichever amount is greater.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.
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