Ezel / Ethics Opinions / WISBAR
WISBAR 1994

Can an estate-planning lawyer hire nonlawyer financial planners as contractors to gather client data and help prepare documents?

Short answer: The opinion concluded that an estate-planning lawyer's use of nonlawyer financial planners and investment advisors as independent contractors, paid hourly to give free consultations gathering data for the lawyer's review and to help prepare documents, involves no per se violation. The lawyer must supervise the nonlawyers (SCR 20:5.3), not assist unauthorized practice (SCR 20:5.5), not share fees with or be directed by them (SCR 20:5.4), avoid false or misleading communications (SCR 20:7.1), and pay them only for services performed, not for referrals (SCR 20:7.2).

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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1994
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion E-94-6 considered an estate-planning lawyer who wanted to hire nonlawyer financial planners and registered investment advisors as independent contractors, paid an hourly fee by the lawyer, to give potential clients a free consultation at which data is gathered for the lawyer's review for estate-planning purposes. The lawyer would then consult with the client and provide estate-planning services, and the nonlawyer contractors might also be retained to help prepare necessary documents and transfer assets to accomplish the client's approved objectives. The committee concluded that this method of delivering estate-planning legal services, if undertaken by a Wisconsin lawyer, would involve no per se violations of the rules, while flagging several significant concerns.

Those concerns track the supervisory and nonlawyer rules. Under SCR 20:5.3, the lawyer must supervise nonlawyer assistants to ensure their conduct is compatible with the lawyer's professional obligations. SCR 20:5.5 prohibits the lawyer from assisting nonlawyers in the unauthorized practice of law, and SCR 20:5.4 prohibits sharing fees with nonlawyers or being subject to their direction or regulation. False or misleading communications about the lawyer's services would violate SCR 20:7.1, and it is misconduct under SCR 20:7.2 to give anything of value to a person for recommending the lawyer's services, so the nonlawyer contractors must be paid only for services actually performed, not for referrals. The committee noted that Formal Opinion E-92-2 offers additional cautions in this area and concluded that the arrangement requires careful planning, supervision, and follow-through to conform to the rules.

Currency note

This opinion was issued in 1994, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (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 an estate-planning lawyer use nonlawyer financial planners as contractors?

A: Yes, with care. The committee concluded that the described arrangement involves no per se violation, provided the lawyer observes the supervisory and nonlawyer rules.

Q: How must the nonlawyer contractors be paid?

A: Only for services performed. The committee concluded that under SCR 20:7.2 the lawyer may not give anything of value for recommending the lawyer's services, so the contractors must be paid for actual work, not for referrals, and the lawyer may not share fees with them (SCR 20:5.4).

Q: What is the lawyer's duty over the nonlawyers' work?

A: Supervision. The committee concluded that SCR 20:5.3 requires the lawyer to supervise the nonlawyer assistants to ensure their conduct is compatible with the lawyer's professional obligations, and SCR 20:5.5 bars assisting their unauthorized practice.

Background and rules framework

The opinion applied the nonlawyer-assistant and professional-independence rules: SCR 20:5.3 / Model Rule 5.3 (supervision of nonlawyer assistants), SCR 20:5.5 / Model Rule 5.5 (unauthorized practice), and SCR 20:5.4 / Model Rule 5.4 (fee-sharing and independence). It also applied the advertising and solicitation rules SCR 20:7.1 / Model Rule 7.1 (false or misleading communications) and SCR 20:7.2 / Model Rule 7.2 (payment for recommending the lawyer's services).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:5.3 / Model Rule 5.3 (nonlawyer assistants)
  • Wis. SCR 20:5.5 / Model Rule 5.5 (unauthorized practice)
  • Wis. SCR 20:5.4 / Model Rule 5.4 (fee-sharing; independence)
  • Wis. SCR 20:7.1 / Model Rule 7.1 (false or misleading communications)
  • Wis. SCR 20:7.2 / Model Rule 7.2 (payment for recommendations)

Other opinions cited:

  • Wisconsin Formal Op. E-92-2 (additional cautions on this arrangement)

See also

Source

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