Can an estate-planning lawyer hire a financial planner to inventory assets, explore options, and witness documents for the lawyer's clients?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-93-6 (1993) asked whether estate-planning lawyers may retain a financial planner, with the client's knowledge and consent and at a reasonable fee, to develop an inventory of the client's assets, assist in exploring estate-planning options, and witness executed documents. The committee answered yes, provided the arrangement is consistent with SCR 20:5.4 and SCR 20:7.2(b), does not involve a conflict of interest, and satisfies the lawyer's duty under SCR 20:5.3(a) to make reasonable efforts to ensure the planner's conduct is compatible with the lawyer's professional obligations, one of the most important of which is confidentiality under SCR 20:1.6.
On SCR 20:5.4, the committee explained that the rule prohibits a lawyer from sharing fees with a nonlawyer, from forming a partnership with a nonlawyer if any of its activities constitute the practice of law, and from permitting a person who recommends the lawyer to direct or regulate the lawyer's professional judgment. To stay within the rule, the committee concluded the arrangement should provide for separate and discrete billing of the lawyer's services and the planner's services, and the lawyer must insist on no interference with independent professional judgment; the planner may suggest ideas, but final responsibility for the plan must rest with the lawyer.
On SCR 20:7.2(b), the committee noted that a lawyer may not give anything of value to a person for recommending the lawyer's services. So if the planner refers clients to the lawyer, the lawyer may not promise to channel work back to the planner in exchange. The committee concluded that such a mutual-referral arrangement would not only violate SCR 20:7.2(b) but also create a conflict of interest under SCR 20:1.7(b), because the lawyer would be receiving a personal benefit (referrals) in exchange for persuading the client to hire the planner for additional work.
Currency note
This opinion was issued in 1993, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The rules it relies on, including the referral provision then in SCR 20:7.2(b) and the conflict rule SCR 20:1.7, have been revised since. 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: Could an estate-planning lawyer hire a financial planner to help with a client's plan?
A: Yes. The committee concluded a lawyer may do so with the client's knowledge and consent and at a reasonable fee, if the arrangement complies with SCR 20:5.4 and 20:7.2(b), involves no conflict, and satisfies the supervision and confidentiality duties under SCR 20:5.3(a) and 20:1.6.
Q: How should the lawyer and planner handle billing?
A: Separately. The committee concluded the arrangement should provide for separate and discrete billing of the lawyer's services and the planner's services, so the lawyer is not sharing fees with a nonlawyer in violation of SCR 20:5.4.
Q: Can the lawyer and planner agree to send each other clients?
A: No. The committee concluded a mutual-referral arrangement would violate SCR 20:7.2(b)'s bar on giving value for recommendations and create a conflict of interest under SCR 20:1.7(b).
Q: Who is responsible for the final estate plan?
A: The lawyer. The committee concluded the planner may make suggestions, but final responsibility for the plan must rest with the lawyer, who must allow no interference with independent professional judgment.
Background and rules framework
The opinion interprets SCR 20:5.4 / Model Rule 5.4 (professional independence; no fee-sharing with nonlawyers), SCR 20:7.2(b) / Model Rule 7.2 (no giving value for recommending the lawyer's services), SCR 20:5.3(a) / Model Rule 5.3 (responsibilities regarding nonlawyer assistants), SCR 20:1.6 / Model Rule 1.6 (confidentiality), and SCR 20:1.7(b) / Model Rule 1.7 (conflicts of interest). The committee read these rules together to permit a properly structured lawyer-planner arrangement while barring fee-sharing, loss of independent judgment, and reciprocal referrals.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:5.4 / Model Rule 5.4 (professional independence; fee-sharing with nonlawyers)
- Wis. SCR 20:7.2(b) / Model Rule 7.2 (giving value for recommendations)
- Wis. SCR 20:5.3(a) / Model Rule 5.3 (supervision of nonlawyer assistants)
- Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
- Wis. SCR 20:1.7(b) / Model Rule 1.7 (conflicts of interest)
See also
- WI Ethics Op. E-94-6: Financial Planners in Estate Planning Practice
- WI Ethics Op. E-00-04: Fee to a Lawyer for Recommending Service Providers
- AL Bar Ethics Op. 1993-20: Rule 5.4 Prohibits Fee-Splitting With a Nonlawyer
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-93-6.pdf
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