The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
June 22, 1964
June 22, 1964
It is improper for an attorney employed full-time by an insurance firm to prepare an estate analysis for prospective clients of the insurance firm, since the attorney's opinion is to be presented to the client as an opinion of a member of The Florida Bar prepared for the benefit of a prospective client. It also is improper for a practicing attorney to prepare an estate analysis from information furnished by an insurance agency to be presented to the prospective client as having been prepared by the agency's attorney.
Canons: 6, 27, 35, 47
Cases: Oregon State v. John H. Miller & Co., 385 P.2d 181 (Ore. 1963)
Chairman Smith states the opinion of the committee:
A member of The Florida Bar requested the opinion of the Professional Ethics Committee relative to two rather complex, but related, problems. The inquiry has been considered by all members of this Committee. It is difficult to express in a compiled form the views presented by the Committee. The following, however, fairly represents a composite of the opinions received.
In the first situation presented, a member of The Florida Bar, who is not a practicing attorney, is employed full time by a firm engaged in the sale of life insurance. The attorney receives a salary plus a minimum bonus from the life insurance firm. The compensation is not directly related or connected with the legal services rendered and the attorney does not receive commissions. The attorney is a member of various legal associations, but does not have the necessary occupational licenses for the practice of law. The services of this attorney include the preparation of estate analyses for prospective clients of the insurance firm. The insurance agent furnishes the attorney with information from which the analysis is prepared. The analysis is then submitted to the prospective client with the representation that the analysis is prepared by an attorney working for the life insurance firm. The analysis is furnished without cost to the prospective client. Subsequently, as the matter develops, the attorney for the life insurance organization may consult with or assist the client's attorney, certified public accountants or other professional advisors. There is no preparation of legal documents by the attorney involved and, if the client needs an attorney, a referral is made by the insurance firm. The attorney uses a letterhead which shows his name and indicates that he is a consulting attorney for the insurance firm by which he is employed. No other person in the insurance firm uses this letterhead and the attorney's name does not appear on any other letterhead used by the firm.
In the second situation, the attorney is a member of The Florida Bar and is engaged in the active practice. One of his clients is an insurance firm engaged in the sale of life insurance. The attorney receives a fixed retainer for the agency's general legal work and, in addition, receives a fixed fee for the preparation of the estate analysis. This attorney maintains the usual licenses of law and is a member of legal associations. His services include the preparation of estate analysis from information furnished by the life insurance firm. Once prepared, an analysis is presented to the prospective client and the representation is made that the analysis has been prepared by the agency's attorney. There is no cost for the services to the prospective client. Subsequently, the attorney will assist the client's own attorney or other professional advisors. If the insurance client does not have an attorney, the attorney for the insurance group will offer to handle the matter for the client. At this point, the usual attorney-client relationship is created with the client paying to the attorney fees for services rendered.
The Committee is divided in its opinion as to the first situation presented. In the second instance, the Committee unanimously believes that ethical improprieties are involved.
As to the first situation, four members of the Committee feel that the attorney's participation in the program is ethically improper. These members believe, as do the others, that it is quite proper for a firm to hire an attorney and for that attorney to serve the firm full time. All members further feel that it is proper for the attorney to render opinions or develop estate analyses for the benefit of the attorney's employer. The majority maintain, however, that it is improper for the attorney's opinion to be presented to the client as an opinion of a member of The Florida Bar prepared for the benefit of the prospective client. No direct relationship exists between the attorney and client and, it is argued, Canon 35 is offended because the situation amounts to the practice of law through an intermediary. Further, the majority feel that the situation is misleading inasmuch as the attorney's opinion apparently is presented as an unbiased evaluation whereas it is in fact prepared for the purpose of selling life insurance and is most likely slanted in that direction. As a result, the attorney is in a position of giving unsolicited legal advice to a member of the public upon representations of fact furnished to the attorney by his employer, who is financially interested in the circumstances. There is a possibility of conflict of interests and of engaging in the practice of law through a lay agency in violation of specific provisions of the Canons of Ethics.
Two members of the Committee believe that the attorney's practice is not unethical providing he is employed full time by the life insurance firm, and providing further that the presentation to the client is made so that it clearly appears that the estate analysis is made by an employee of the life insurance firm for the purpose of presenting one possible solution to the estate problem of the client. One member of the minority suggests that the circumstances would be more properly presented if the attorney used the regular letterhead of his employer and signed the analysis as staff counsel or in some other capacity which clearly shows the relationship of the attorney to the insurance organization.
Regarding the second factual situation, all members believe that ethical improprieties are presented. The attorney is not a full time employee of the insurance agency. He is allowing his services to be sold or presented to the prospective client, for the benefit of the client, when he has not been retained by the client for that purpose. The interest of the insurance company and that of the client could easily conflict and the attorney is placing himself in a position of representing conflicting interests. There is no disclosure of this fact, contrary to the provisions of Canon 6. In addition, the professional services of the attorney are being controlled or exploited by a lay agency, contrary to the provisions of Canon 35. In addition, the attorney is in effect rendering an opinion on a factual situation presented to him by a third party. This offends both the Canons mentioned.
This Committee is not authorized to determine whether a particular practice constitutes unauthorized practice of law. Thus we can express no opinion regarding the activities of the life insurance agencies concerned. In one of the few cases on point, however, Oregon State v. John H. Miller & Co., 385 P.2d 181 (Ore. 1963), an analogous estate planning service was declared to constitute the unauthorized practice of law. Further, statements of principle are periodically propounded by the National Conference of Lawyers and Life Underwriters. These principles are referred to on pages 151A and 152A, Volume III, Martindale-Hubbell. Therein it is stated that it is improper for a life underwriter to furnish attorneys who will give legal advice to the life underwriter's clients or prospective clients. The life underwriter, it is said, may properly obtain legal advice from an attorney for the underwriter's own guidance. However, it is improper to circularize any such opinion or to use it as a selling document. The same material presents certain findings which tend to condemn the practice of an attorney as set forth above.
Should the problems be presented to the Committee on Unauthorized Practice of Law of The Florida Bar, and should that group find that the insurance firms are engaged in such practices, it is obvious that any member of The Florida Bar permitting his professional services or name to be used to aid such unauthorized practice would be in violation of Canon 47.