The Florida Bar

June 21, 1972

A lawyer should not undertake to provide “general legal services” to a mutual fund when such services would include preparation of “prototype trust instruments” for use by agents of the mutual fund in dealing with customers.

Opinions: 64-33, 64-70, 67-11

Chairman Clarkson stated the opinion of the committee:

We are again called upon to determine whether proposed legal representation of a lay agency in the estate planning field may violate ethical precepts.

The inquiring member of The Florida Bar states that his firm has been asked to provide “general legal services” to a mutual fund. Initially, the firm would prepare “prototype trust instruments” for use by agents of the mutual fund in dealing with customers. Thereafter, if requested to do so by a customer or his attorney, the law firm would “make an analysis as to whether or not a trust was warranted, and if so, which of the trust forms should be used.” The law firm's compensation would be paid by the mutual fund except in those instances in which the firm prepared legal documents upon request of the customer or his attorney, in which event the firm would be paid directly by the customer or his attorney.

As we have consistently noted in the past, arrangements between lawyers and mutual funds, life insurance agents or other lay agencies active in estate planning work are fraught with ethical pitfalls. Both the former canons and the present code have condemned similar relationships because of the inherent conflict of interest, the inevitable imposition of a lay intermediary between attorney and client and the strong likelihood that the attorney's services may occasionally and unwittingly aid the unauthorized practice of law. The proposed method of dealing between the mutual fund and its potential customers too readily lends itself to the sale of a package which includes legal services.

For the reasons stated in exhaustive detail in our former opinions 64-33, 64-70 and particularly 67-11, we have concluded that the inquiring lawyer should not undertake the representation as proposed.

[Revised: 08-24-2011]