Can a Florida lawyer draft a document whose legality is genuinely uncertain, such as a living will?

Plain-English summary

A lawyer asked whether he could ethically prepare a document for a client where he was in genuine, good-faith doubt about the instrument's legality, and where he could not, under the current state of the law, advise the client with any assurance whether the instrument or the conduct it authorized would be lawful. The committee framed its analysis around the example (treated as hypothetical) of an instrument directing that no extraordinary life-sustaining procedures be used in the event of terminal illness, referencing Florida's felony statute on assisting self-murder, F.S. 782.08, and the New Jersey decision In the Matter of Quinlan.

The committee answered the inquiry in the affirmative, subject to conditions. It worked through Canon 7 of the Code of Professional Responsibility and its Ethical Considerations: EC 7-6 (the lawyer as advisor gives a professional opinion on the likely ultimate court decision and the practical effect), EC 7-2 (the bounds of the law are often difficult to ascertain), EC 7-1 (certainty of law ranges from well-settled rules to areas without precedent), and EC 7-3 (in serving as advisor the lawyer should give a professional opinion on the likely outcome). The committee observed that EC 7-3 did not squarely address what a lawyer should do where genuine uncertainty makes such an opinion impossible, and that DR 7-102(A)(7), which bars counseling or assisting conduct the lawyer knows to be illegal or fraudulent, was likewise not directed to the situation.

Taking those sections together, the committee concluded the lawyer's actions should be governed by his evaluation of the state of the law. Where genuine uncertainty exists, he should give the client his opinion to that effect, with full disclosure of all relevant considerations and possible legal effects, including any possibility of civil or criminal liability arising from the instrument and conduct under it. The client should be clearly advised of the possible liability of the third party designated to use the instrument, and that third party should receive like advice from the attorney if the third party is not involved in the transaction and does not have his own counsel.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.2 and 4-2.1 before relying on any specific requirement mentioned here.

Common questions

Q: Can a Florida lawyer draft a document if its legality is genuinely uncertain?

A: The opinion concluded yes, provided the lawyer gives the client his opinion about that uncertainty and fully discloses the possible legal effects and any civil or criminal liability.

Q: What did the committee say the lawyer must disclose to the client?

A: Per the opinion, all relevant considerations and possible legal effects, including any possibility of civil or criminal liability to anyone as a result of the instrument and the conduct under it.

Q: Did the duty to disclose extend to anyone besides the client?

A: Yes. The opinion concluded a third party designated to use the instrument should receive like advice from the attorney if that party is not involved in the transaction and does not have his own counsel.

Background and rules framework

The opinion applied Canon 7 of the former Code of Professional Responsibility and its Ethical Considerations (EC 7-1, 7-2, 7-3, 7-6) on a lawyer's duty as advisor when the law is uncertain, and DR 7-102(A)(7), which barred counseling or assisting conduct the lawyer knows to be illegal or fraudulent. Those provisions correspond to Model Rule 2.1 (advisor; current Florida Rule 4-2.1) and Model Rule 1.2(d) (limits on counseling or assisting client conduct; current Florida Rule 4-1.2). The opinion cited Florida Statutes section 782.08 and In the Matter of Quinlan as part of its illustrative example, not as controlling law it resolved.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR Canon 7; EC 7-1, 7-2, 7-3, 7-6 (lawyer as advisor when law is uncertain)
• CPR DR 7-102(A)(7) (no counseling or assisting illegal or fraudulent conduct)

Statutes:

• Fla. Stat. 782.08 (felony to deliberately assist another in self-murder)

Cases:

• In the Matter of Quinlan, 355 A.2d 647 (N.J. 1976), termination of extraordinary life-sustaining efforts

See also

• ABA Formal Op. 491: Avoiding Counseling or Assisting Crime or Fraud

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-35/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-35-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-35
October 17, 1977
Advisory ethics opinions are not binding.
An attorney may draft a legal document for a client, even though he may have a genuine, good faith uncertainty as to its legality, provided that he gives his client an opinion to that effect and fully discloses possible legal effects and civil or criminal liability. Third parties directly designated in such a document should receive a similar disclosure from the attorney if they are not represented by counsel or are not involved in the transaction.
CPR: Canon 7; EC 7-1, 7-2, 7-3, 7-6; DR 7-102(A)(7)
Statute: F.S. 782.08
Case: In the Matter of Quinlan, 355 A.2d 647 (N.J. 1976)
Vice Chairman Richman stated the opinion of the committee:
A member of the Bar has been asked by his client to draft a legal document for the client, and the attorney is in doubt as to the legality of the instrument. He is also in doubt as to whether performance of certain conduct authorized by the instrument to be taken by a third party would be in violation of law, especially certain criminal law. He refers to a case of first impression in another jurisdiction appearing to, in effect, validate such an instrument under certain circumstances despite the possible existence of at least general statutory proscriptions concerning that same type of conduct by a third party, and he further refers to a Florida statute containing similar general statutory proscriptions.
For purposes of this inquiry the Committee assumes that there is on the part of the attorney absolute, genuine, good faith uncertainty as to the legality of the instrument and as to the legality of that conduct so authorized to be taken by the third party. The Committee also assumes that the attorney cannot, under the current state of the law, advise the client with any degree of assurance at all that the instrument is or is not lawful and that such third-party conduct would or would not be lawful under the law of this state.
This opinion does not address or concern situations in which, although there may not be controlling law directly in point, an attorney can nonetheless render an opinion as to the legality of an instrument and as to conduct authorized thereby.
The attorney inquires as to whether he may ethically prepare the instrument for the client under the foregoing circumstances. The Committee answers the inquiry in the affirmative, subject to the following portions of this opinion.
In this advisory opinion of the Committee the facts have been generalized because it is not within the province of this Committee to render opinions of law or to concur with an attorney's opinion that Florida law in a particular area is genuinely uncertain. Nonetheless, the attorney's inquiry requires a response from this Committee because it involves a matter of ethics, as well as matters of law. Canon 7 of the Code of Professional Responsibility addresses the subject of an attorney's advice to a client when the relevant law is uncertain.
Solely for the purpose of providing a frame of reference and a possible example of a situation to which this opinion might conceivably be interpreted by some to be applicable, and without in any way basing this opinion upon any specific fact situation or expressing or addressing any specific point of law, we refer to the following fact situation, which for present purposes is considered to be hypothetical: A lawyer is requested to prepare an instrument directing any doctor treating the lawyer's client to not utilize any heroic or extraordinary life-sustaining, resuscitative or maintenance procedures to preserve the client's life in the event the client has a terminal illness or injury. The client further requests that the instrument provide that in the event the client is not competent at the time of such terminal illness or injury, the decision as to whether or not to use extraordinary, heroic efforts be joined in by a specified third party. See in that regard, Florida Statutes, Section 782.08, where felonious conduct is defined to include "deliberately assisting another in the commission of self murder. . . ." and The Matter of Quinlan, 355 A.2d 647 (N.J. 1976), where no unlawful conduct on the part of certain parties was found to exist, subject to certain stated conditions, where those parties engaged in conduct involving termination of efforts to preserve the life of another who existed in a noncognitive, vegetative state.
The New Jersey Supreme Court in Quinlan referred to the need for ". . . the law, equity and justice. . ." to not be helpless "in the face of modern technological marvels presenting questions hitherto unthought of" and also noted the need to answer novel questions previously unexplored.
Under EC 7-6, "A lawyer as advisor furthers the interests of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision."
As set forth in EC 7-2: "The bounds of the law in a given case are often difficult to ascertain. . . . The limits and specific meaning of apparently relevant law may be made doubtful by changing or developing constitutional interpretations, inadequately expressed statutes or judicial opinions, and changing public and judicial attitudes." EC 7-1 notes that "certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent."
EC 7-3 provides, in pertinent part: "Where the bounds of law are uncertain the action of the lawyer may depend on whether he is serving as an advocate or advisor . . . [A] Lawyer serving as advisor primarily assists his client in determining the course of future conduct and relationships . . . In serving a client as advisor, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law."
But EC 7-3 does not address the point, or provide specific guidance, as to what the lawyer should do in a situation where, due to genuine uncertainty as to the law, especially in areas without precedent, the lawyer cannot render an opinion in good faith with any degree of assurance that it will likely ultimately be consistent with the decisions of the courts. More specifically, as to the general facts of this inquiry, EC 7-3 does not appear to provide guidance as to the conduct of an attorney in preparing an instrument of the type described in this inquiry where the attorney has such genuine uncertainty as to the likely outcome in the courts in the event the instrument, or the conduct authorized thereby, is challenged. It is that point to which this Opinion of the Committee is directed.
As the Preliminary Statement to the Code provides, the ethical considerations of the Code are "a body of principles upon which the lawyer can rely for guidance in many specific situations" whereas the disciplinary rules . . . are mandatory in character. The disciplinary rules of the Code, in our view, are likewise not specifically directed to the subject matter of this inquiry, although DR 7-102(A)(7) does say that a lawyer is specifically precluded from counseling or assisting his client . . . "in conduct that the lawyer knows to be illegal or fraudulent." (Emphasis added.)
It is the Committee's opinion, taking into consideration the foregoing sections of the Code, that the actions of the inquiring attorney in preparing the suggested instrument and in advising the client with respect to the instrument should be dictated and governed by the lawyer's evaluation of the state of the law and, in the event of genuine uncertainty on his part in that regard, he should give to the client his opinion to that effect, accompanied by full disclosure to the client of all of the relevant considerations and possible legal effects, including any possibility of civil or criminal liability on the part of anyone as a result of the instrument and conduct thereunder. The client should clearly be advised as to the possible liability of the third party who is designated to use the instrument and authorized thereby to engage in certain conduct. In addition, that third party should receive like advice from the attorney if the third party is not involved in the transaction or does not have his own counsel in that regard.