Can a lawyer review and finalize estate planning documents that a financial planning company gathered information for and drafted, then sent to the client's chosen attorney?

Plain-English summary

A financial planning company offered clients an information-gathering service, for a fee, to prepare estate planning documents such as revocable living trusts, durable powers of attorney, living wills, and pour-over wills. The client completed the company's application and signed a "disclosure and compliance" statement acknowledging the company's representative was not an attorney, that the client should consult an attorney for legal advice, that post-review changes cost $25 per page, and that the client had selected a designated attorney from a list. The company prepared the documents from the client's application, and the attorney then reviewed them for legal sufficiency and met with the client before execution. The inquiry asked whether the attorney aids the unauthorized practice of law and violates other rules.

The committee concluded the attorney may facilitate the company's unauthorized practice of law in violation of Rule 5.5(b), because the company gathers the information and drafts the documents, and the legal consultation does not occur until after the company has already advised the client on which documents are appropriate and prepared them. It relied on Opinions 90-19, 90-20, 474, and 261, all finding lawyers aided non-lawyers' unauthorized practice in comparable arrangements. The "disclosure and compliance" statement did not change the result, because the representative could in fact provide legal services in explaining the documents' advantages and disadvantages and preparing them.

On the second question, the committee found the arrangement infringes the lawyer's duty to provide independent representation free from conflict and may involve impermissible fee splitting. Because the facts did not show who pays the attorney, the company's payment could raise a question whether the client is the company or the individual, echoing the Rule 1.7 conflict the committee identified in Opinion 90-20. If the client's fee to the company is partly paid over to the attorney, the attorney shares legal fees with a non-attorney in violation of Rule 5.4(a), and the arrangement could compromise Rule 5.4(c) if the company directs or regulates the lawyer's professional judgment.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (Rules 1.7, 5.4, and 5.5(a)), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer review estate documents a financial planner drafted for the planner's clients?

A: The opinion concluded the lawyer may aid the company's unauthorized practice of law under Rule 5.5(b), because the company advises on and prepares the documents before the lawyer's review.

Q: Does the client's signed statement that the planner gave no legal advice fix the problem?

A: No. The opinion concluded the statement does not change the result, because the representative could in fact provide legal services in explaining and preparing the documents.

Q: What conflict and fee problems does the arrangement create?

A: The opinion concluded it raises a Rule 1.7 conflict over who the client is, and that any share of the client's fee paid to the attorney is improper fee splitting under Rule 5.4(a), with Rule 5.4(c) implicated if the company directs the lawyer's judgment.

Background and rules framework

The opinion applied Rule 5.5(b) (assisting unauthorized practice) as its primary holding, with Rule 1.7 (conflicts over who the client is) and Rule 5.4(a) and (c) (fee splitting with and direction by a non-lawyer) as additional violations the arrangement could produce (Model Rules 1.7, 5.4, 5.5).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 (unauthorized practice) / Illinois Rule 5.5(b)
• Model Rule 5.4 (professional independence; fee sharing) / Illinois Rule 5.4(a), (c)
• Model Rule 1.7 (conflicts of interest) / Illinois Rule 1.7

Other opinions cited:

• ISBA Opinions 90-19, 90-20, 474, 261: lawyers aiding non-lawyers' unauthorized practice in estate-document arrangements.

See also

• ISBA Ethics Op. 90-20: Lawyer Working for a Living-Trust Marketer
• ISBA Ethics Op. 90-35: Wills Through a Nonprofit Plan
• ISBA Ethics Op. 90-19: Nonlawyer Preparing Trust Documents

Source

• Landing page: https://www.isba.org/ethics/opinions/9110