FLORIDA BAR ETHICS OPINION
December 8, 1964
Advisory ethics opinions are not binding.
It would be improper for an attorney to prepare proposed estate analyses for insurance agents.
Even if the proposed arrangement were otherwise proper, it would be improper to make the fee
for professional services rendered contingent in whole or in part upon the sale of insurance.
6, 12, 13, 27, 35
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar requests our opinion on the following facts and
The general agent for a life insurance company has agents working under his
supervision. These agents approach prospective insurance clients and propose an
estate analysis. The analysis includes: (1) mathematical computation of estate
taxes as if the insurance client had died yesterday, (2) an analysis of critical areas
in estate planning and (3) proposed solutions for critical areas. If insurance is
needed to solve estate problems the agent sells the insurance. If insurance is not
needed the insurance client refers the agent to three other persons of equivalent
The general agent wishes to employ the lawyer to prepare the proposed
analyses and to supply information concerning estate analysis which is needed by
the agents for their respective insurance clients. The analyses would be limited to
explaining the various instruments which should be prepared in a particular case
and to stating the provisions which such instruments would contain. The lawyer’s
only contact would be with the insurance agents, and his name would not appear
on the analysis.
In some manner which is not stated, the analysis initially prepared would first
be presented to attorneys and accountants employed by the prospective client, and
the analysis might be changed after conferences with those individuals. After
those conferences and changes, if any, the analysis would be presented to the
agent’s prospective client with a written explanation, and an oral explanation
would be given by the agent.
The lawyer would be paid for his service by the general agent who, in turn,
would pass on all or part of the cost to his agents as he sees fit.
Our opinion is sought as to the following questions:
1. Is the above arrangement in any way unethical? If so, in what way? Does it in any way
violate Canon 35 dealing with intermediaries?
2. In setting the fee in such a situation is it unethical to set the fee either in whole or in
part on a contingent basis depending on the sale of insurance?
3. What steps must the lawyer take, if any, to prevent the agents from disclosing that the
analysis is prepared by him?
4. If the insurance client does not have an attorney does the lawyer have any
responsibility to prevent the agent from recommending his services?
5. Although it is contemplated that the agent will gather all information, would it be
unethical for the lawyer to participate in gathering information from the insurance client, which
would involve disclosure of the lawyer’s name?
6. Would it be unethical for the lawyer to participate in conferences with the insurance
client’s attorney and accountant?
Questions of similar nature have previously been propounded to our Committee. In our
Opinion 64-33 we covered, particularly in the second situation discussed there, a problem quite
similar to the one now posed.
In connection with the specific questions which are presented, the Committee
unanimously agrees as follows:
1. It would be ethically improper to engage in the work outlined in the factual situation
above. Violations of Canons 6 and 35 are involved for the reasons presented in connection with
the second factual situation outlined in Opinion 64-33. The Committee does not consider
material that the lawyer’s name will not appear on the proposed analyses.
2. Even if the proposed arrangement was otherwise proper, it would be ethically improper
to make the fee for professional services rendered contingent in whole or part upon the sale of
insurance. The effect of such arrangement is to attempt rendition of a service to a prospective
insurance client through an intermediary when the lawyer would be paid by the intermediary
only if the client purchased insurance from the intermediary. Canons 6 and 35 are involved.
3. We can conceive of no effective steps which could be taken to prevent the agents from
disclosing who prepared the analyses if the agents desired to do so.
4. Although it is not always improper to accept employment upon reference by a layman,
we believe it would be wise to decline to represent the prospective insurance client even if he is
referred by the insurance agent without the lawyer’s knowledge or consent. Otherwise, the whole
arrangement could be subject to criticism as a device for channeling legal employment.
5. We also believe it would be unwise to participate in gathering information from the
prospective client by direct contact with the client. We understand the lawyer would be
employed by the general agent to render advice on the basis of information he furnishes. Direct
contact with the prospective insurance client would offer the same possibility for criticism
mentioned immediately above.
6. Assuming that he was to render the services contemplated, a majority of the
Committee believes it would not be improper for the lawyer to confer with attorneys or
accountants representing the prospective insurance client provided the meeting, in effect,
amounts to negotiations “at arm’s length.”