Ethics Opinion

Opinion 68-46

FLORIDA BAR ETHICS OPINION
OPINION 68-46
September 23, 1968
Advisory ethics opinions are not binding.
A lawyer who asks a party not represented by counsel to sign a quitclaim deed needed to procure
an insurable title in his client should state in understandable terms the precise reason for his
request.
Canon:

9

Chairman MacDonald stated the opinion of the committee:
Confronting the Committee is a difficult problem relating to the scope of
Canon 9 and the nature of the ethical proscriptions imposed upon attorneys by its
provisions. A member of The Florida Bar inquires thusly:
My problem arises as follows: “A,” who is retired, and his wife purchased a
property in Florida and declared the same as homestead. They have a daughter
and a son who never lived in the property. The wife died six months later and the
daughter died leaving no children. “A” remarries in less than a year after the
deaths of his wife and daughter. The sole surviving son, joined by his wife,
executed and delivered a fee simple deed to “A” and his new wife conveying all
interest in this homestead property. At approximately the same time “A,” joined
by his new wife through a straw conveyance, received back the title to the
property as an estate by the entireties. The son several years thereafter died
leaving no heirs but did leave his surviving widow. All of these transactions were
handled by an attorney who is now deceased. The second wife assumed that she
had good title to the property, signed a contract for its sale at a highly inflated
price of $90,000. At the time for issuance of title insurance, the title company
stated that the wife has only a life estate and cannot make a conveyance without
first obtaining a deed from the widow of the deceased son of “A.”
As you are probably aware, many cases hold that the fee simple deed from
the son joined by his wife to “A” and his new wife is a nullity, and that all the
surviving widow of “A” has is a life estate in this property. I have checked most
of these cases and find this to be the law.
The ethical question involved is whether or not I can properly request from
the surviving widow of the son a fee simple deed without disclosing to her the
circumstances of the purchase. My client, of course, is the surviving second wife
of “A.”
Canon 9, although entitled “Negotiations with Opposite Party” and containing provisions
precluding direct negotiation or communication with a party represented by counsel, also deals
with another and equally vital topic not necessarily suggested by its title, i.e., dealings of an

attorney with a party not represented by counsel. In that respect the Canon admonishes lawyers
as follows:
It is incumbent upon the lawyer most particularly to avoid everything that
may tend to mislead a party not represented by counsel, and he should not
undertake to advise him as to the law.
Although the Canon manifestly does not preclude communication or discussion with a
party not represented by counsel, so long as it does not constitute the giving of advice as to
applicable law, or the making of statements which might reasonably be regarded by the
unrepresented party as the giving of legal advice, it is obvious that both the spirit and letter of
this Canon require that an attorney exercise extreme caution in any dealings on behalf of a client
with another not represented by counsel. In the present instance, it is our judgment that there
would be no impropriety per se in the request that a party unrepresented by counsel execute a fee
simple deed. However, in the judgment of a majority of the Committee, it is so completely
unlikely that any person of reasonable intelligence would not make inquiry as to the reason for
this request, that the lawyer in this circumstance should anticipate that such a request would be
made. Indeed, it is not at all unlikely that failure of the other party to make any inquiry would
indicate such an utter lack of appreciation of the circumstances as to create an affirmative duty
on the part of the lawyer to advise the other party to seek disinterested advice. In any event,
under the circumstances described, the lawyer in the course of making the request for the deed
should anticipate the necessity for giving an appropriate explanation, and while expressly not
undertaking to advise as to the applicable law, should state in understandable terms the precise
reason for the request, i.e., that the title insurer asked to insure the title in connection with a
proposed sale by the second wife has taken the position that she has only a life estate, and that in
order for complete title to be vested in her in the judgment of the title company it is necessary
that what the insurer regards as a remainder interest in the daughter-in-law of the deceased
husband be conveyed to the wife.
It is recognized that the rendition of this advice may well cause the daughter-in-law to
decline to grant the deed. However, in our judgment this would be a genuine service to the client
wife, because it is not at all unlikely that in the event of later disclosure, a claim might be
advanced based upon alleged fraud or similar misconduct, which would prove embarrassing not
only to the lawyer, but to his client.