Can a foundation employ a house lawyer to prepare wills for its guests and constituents while the lawyer represents only the foundation?

Plain-English summary

The committee was asked whether a foundation might employ a house attorney to serve on its staff and assist certain people with their wills, while exclusively representing the foundation, by counseling foundation guests and constituents about their wills.

The committee unanimously found such action improper and unethical, in possible violation of Canons 6, 35, and 47. It quoted Drinker, Legal Ethics, at page 160, that drawing wills for trust companies to have their patrons sign is wholly improper, particularly where the lawyer is expected to have the trust company named executor and trustee, and found the foundation situation analogous. The committee said drawing a will requires a direct attorney-and-client relationship and that the attorney must look out for the best interests of the client. It read Canon 35 to provide that a lawyer's relation to the client should be personal and the responsibility direct, and that while a lawyer may accept employment from an organization to render legal services in matters in which the organization as an entity is interested, that employment should not include rendering legal services to the organization's members on their individual affairs. The committee therefore held it would be wholly improper to provide counsel to advise and prepare wills for a foundation's guests and constituents.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 35, and 47 of the Canons of Professional Ethics; an organization rendering legal services to its members, the lawyer's independence, and the bar on assisting unauthorized practice are now addressed by Rules 4-5.4, 4-5.5, and 4-1.7 of the Rules Regulating The Florida Bar (Model Rules 5.4, 5.5, and 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the foundation's staff lawyer prepare wills for its constituents?

A: No. The committee held it wholly improper, because drawing a will requires a direct lawyer-client relationship and the foundation's lawyer was retained to represent only the foundation.

Q: Why did the organization's interest not cover the members' wills?

A: The committee read Canon 35 to allow employment by an organization for matters in which the organization as an entity is interested, but not to extend to rendering legal services to the organization's members on their individual affairs.

Background and rules framework

The opinion applied former Canons 6, 35, and 47 of the Canons of Professional Ethics, emphasizing the requirement of a personal, direct lawyer-client relationship and the limits on serving an organization's members through the organization. Those concerns are now addressed by Rules 4-5.4, 4-5.5, and 4-1.7 of the Rules Regulating The Florida Bar (Model Rules 5.4, 5.5, and 1.7). The committee relied on Drinker, Legal Ethics, at page 160.

Citations and references

Rules of Professional Conduct:

• Canons 6, 35, 47 [Canons of Professional Ethics; see current Rules 4-5.4, 4-5.5, 4-1.7]

Other authorities:

• Drinker, Legal Ethics, p. 160

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-26/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-26-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 61-26
November 28, 1961
Advisory ethics opinions are not binding.
It would be wholly improper for a foundation to provide counsel to advise and prepare wills for guest and constituents while being retained solely by the foundation to represent its interests.
Canons: 6, 35, 47
Chairman Holcomb stated the opinion of the committee:
The Committee has received an inquiry as to whether a Foundation might employ a house attorney to serve on the staff and assist certain people in the matter of wills, exclusively representing the Foundation, and who would counsel Foundation guests and constituents in the matter of their wills.
The Committee unanimously finds that such action on the attorney's part would be improper and unethical and would violate possibly Canons 6, 35 and 47 of the Canons of Professional Ethics. Mr. Drinker, in Legal Ethics, page 160, states: "The practice of drawing wills for trust companies to have their patrons sign is wholly improper, particularly where the lawyer is expected to have the trust company named executor and trustee." We think this is analogous to the stated situation. The drawing of a will requires a direct attorney-and-client relationship. The attorney must look out for the best interests of the client, and we believe the proposal to be a clear violation of Canon 35, which, among other things, states:
A lawyer's relation to his client should be personal, and the responsibility should be direct to the client. . . .
A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs.
We, therefore, hold that it would be wholly improper to provide counsel to advise and prepare wills for guests and constituents of a foundation.