Can a Wisconsin lawyer work with a company that sells living-trust and estate-planning products to review or draft documents for its customers?

Plain-English summary

Opinion E-90-7 considered organizations that sell estate-planning products, particularly living-trust documents drafted by lawyers not licensed in Wisconsin, and that solicit Wisconsin lawyers to review their standard form documents (such as revocable living trusts) and to draft related documents (such as a deed). The question was the circumstances under which a Wisconsin lawyer may provide representation relating to the sale of such products.

The committee identified the threshold issue as whether a particular organization is engaged in the unauthorized practice of law, an issue it said it lacked authority to decide. It concluded that if such an organization is found to be engaging in the unauthorized practice of law, a lawyer may not assist in its activities, citing SCR 20:5.5(b). The committee then drew a line: a lawyer may, at a client's request, represent a client who is considering the purchase of estate-planning products, but nonwaivable conflicts of interest are created if the lawyer has some type of contractual association with a seller of an estate-planning product to provide related legal services to client-buyers, citing SCR 20:1.7 and SCR 20:2.1.

Currency note

This opinion was issued in 1990, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 help a company that sells living-trust documents?

A: Not if the company is engaged in the unauthorized practice of law. The committee concluded that whether the organization is doing so is a threshold question it could not decide, but that if it is, a lawyer may not assist its activities under SCR 20:5.5(b).

Q: Can a lawyer represent a customer who is thinking about buying these products?

A: Yes. The committee concluded that a lawyer may, at a client's request, represent a client who is considering the purchase of estate-planning products.

Q: What is the problem with a contract between the lawyer and the seller?

A: It creates nonwaivable conflicts. The committee concluded that a contractual association with the seller to provide related legal services to client-buyers creates nonwaivable conflicts of interest under SCR 20:1.7 and SCR 20:2.1.

Background and rules framework

The opinion interpreted SCR 20:5.5 / Model Rule 5.5 (unauthorized practice of law, in particular subsection (b) on assisting nonlawyers), SCR 20:1.7 / Model Rule 1.7 (conflicts of interest), and SCR 20:2.1 / Model Rule 2.1 (independent professional judgment), in the context of lawyers working with companies that sell living-trust and other estate-planning products.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:5.5 / Model Rule 5.5 (unauthorized practice; assisting nonlawyers)
• Wis. SCR 20:1.7 / Model Rule 1.7 (conflicts of interest)
• Wis. SCR 20:2.1 / Model Rule 2.1 (independent professional judgment)

Other references:

• Annot., 71 A.L.R.3d 1000 (sale of legal forms as unauthorized practice)

See also

• WI Ethics Op. E-92-2: Lawyers and Living Trust Marketing
• WI Ethics Op. E-93-6: Retaining a Financial Planner
• WI Ethics Op. E-94-6: Planners in Estate Practice

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-90-7.pdf