Can a bank's lawyer or attorney trust officer prepare wills for customers drawn in by the bank's trust-department advertising?

Plain-English summary

The inquiry posed two advertising scenarios. In the first, Bank A's telephone "Time-of-Day" service played a recorded commercial urging callers to "See the 'A' National Bank Trust Department today" about a will, and the bank's employed attorney prepared wills for people who came in as a result, in three sub-variations: (a) for a fee, (b) free, and (c) free only if Bank A was named executor. In the second, billboard advertising drew a client to the "X" National Bank Trust Department, where the will was prepared by a trust officer who was (a) not an attorney, (b) an attorney preparing it free, (c) an attorney preparing it for a fee, or (d) an attorney preparing it free only if the bank was named executor.

The Committee found violations in each lawyer scenario. The bank's attorney violates Canons 24, 32, and 43 in 1(a), 1(c), 2(c), and 2(d); and Canons 32 and 43 in 1(b) and 2(b). For 2(a), where the trust officer is not an attorney, the Committee said the inquiry should be referred to the Committee on Unauthorized Practice of Law and does not fall within its jurisdiction. One member was disqualified.

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 bank's attorney prepare wills for customers the bank's advertising brought in?

A: The Committee concluded the bank's attorney violates Canons 32 and 43 whenever he does so, and Canon 24 as well when the will is prepared for a fee or only if the bank is named executor.

Q: Did preparing the will for free instead of a fee avoid the problem?

A: No. The Committee found that preparing the will free still violated Canons 32 and 43 (scenarios 1(b) and 2(b)); the free-of-charge feature removed only the Canon 24 finding in those variants.

Q: What did the Committee do with the variant where the trust officer is not a lawyer?

A: For scenario 2(a), the Committee said the matter should be referred to the Committee on Unauthorized Practice of Law and did not fall within its own jurisdiction.

Background and rules framework

The opinion interprets former Texas Canon 43 (aiding the practice of law by lay agencies), Canon 32 (professional services not to be controlled or exploited by a lay agency), and Canon 24 (solicitation). The modern analog is ABA Model Rule 5.4 (professional independence of a lawyer), which restricts a nonlawyer entity's involvement in delivering a lawyer's services.

Citations and references

Rules of Professional Conduct:

• MR 5.4 (professional independence of a lawyer), as the modern analog
• Texas Canons 24, 32, and 43 (former canons on solicitation, lay control of professional services, and aiding lay practice of law)

See also

• TX Ethics Op. 178: Lawyers Taking Work Through a Lay Intermediary
• TX Ethics Op. 196: Solicitation and "Feeding" of Law Business
• TX Ethics Op. 182: Lawyer as Executor and Estate Fees

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-177/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_177.pdf

Original opinion text

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

QUESTION PRESENTED

Is there a violation of the Canons of Ethics in the following situations? Bank "A" has exclusive telephone "Time-of-Day" service. Before receiving the time of day, anyone calling must listen to a recorded commercial of Bank "A." Among other commercials, this recording states, "Have you made a will? See the 'A' National Bank Trust Department today."

Bank "A" employs an attorney who, among performing other duties for the bank's trust department, prepares wills for anyone who might come in as a result of the telephone advertising.
(a) Assume said attorney prepares the will and charges a fee.
(b) Assume said attorney prepares the will free.
(c) Assume said attorney prepares the will free only if Bank "A" is named as Executor.
2. Assume as a result of billboard advertising which states, "If you have no will, see your attorney or stop at the
'X' National Bank Trust Department," a client sees the "X" National Bank Trust Department, and the trust
officer prepares his will, and
(a) The trust officer is not an attorney.
(b) The trust officer is an attorney and he prepares the will free.
(c) The trust officer is an attorney, and he prepares the will for a fee.
(d) The trust officer is an attorney, and he prepares the will free, only if "X" National Bank is named the Executor.

18 Baylor L. Rev. 274 (1966)

INTERMEDIARIES - AIDING THE PRACTICE OF LAW BY PERSONS NOT MEMBERS OF THE STATE BAR - SOLICITATION - BANKS
Preparation of Will by Trust Officer of bank who is an attorney violates the Canons of Ethics.

Canons 24, 32, 43.

The designations herein correspond to those in the question.

1(a) The bank's attorney violates Canons 24, 32 and 43.
1(b) The bank's attorney violates Canons 32 and 43.
1(c) The bank's attorney violates Canons 24, 32 and 43.
2(a) The inquiry should be referred to the Committee on Unauthorized Practice of Law and does not fall within the jurisdiction of this Committee.
2(b) The bank's attorney violates Canons 32 and 43.
2(c) The bank's attorney violates Canons 24, 32 and 43.
2(d) The bank's attorney violates Canons 24, 32 and 43.

One member disqualified.

Tex. Comm. On Professional Ethics, Op. 177 (1958)