The Florida Bar

Ethics Opinion

Opinion 76-35

October 17, 1977
Advisory ethics opinions are not binding.
An attorney may draft a legal document for a client, even though he may have a genuine, good
faith uncertainty as to its legality, provided that he gives his client an opinion to that effect and
fully discloses possible legal effects and civil or criminal liability. Third parties directly
designated in such a document should receive a similar disclosure from the attorney if they are
not represented by counsel or are not involved in the transaction.

Canon 7; EC 7-1, 7-2, 7-3, 7-6; DR 7-102(A)(7)
F.S. 782.08
In the Matter of Quinlan, 355 A.2d 647 (N.J. 1976)

Vice Chairman Richman stated the opinion of the committee:
A member of the Bar has been asked by his client to draft a legal document
for the client, and the attorney is in doubt as to the legality of the instrument. He
is also in doubt as to whether performance of certain conduct authorized by the
instrument to be taken by a third party would be in violation of law, especially
certain criminal law. He refers to a case of first impression in another jurisdiction
appearing to, in effect, validate such an instrument under certain circumstances
despite the possible existence of at least general statutory proscriptions
concerning that same type of conduct by a third party, and he further refers to a
Florida statute containing similar general statutory proscriptions.
For purposes of this inquiry the Committee assumes that there is on the part of the
attorney absolute, genuine, good faith uncertainty as to the legality of the instrument and as to
the legality of that conduct so authorized to be taken by the third party. The Committee also
assumes that the attorney cannot, under the current state of the law, advise the client with any
degree of assurance at all that the instrument is or is not lawful and that such third-party conduct
would or would not be lawful under the law of this state.
This opinion does not address or concern situations in which, although there may not be
controlling law directly in point, an attorney can nonetheless render an opinion as to the legality
of an instrument and as to conduct authorized thereby.
The attorney inquires as to whether he may ethically prepare the instrument for the client
under the foregoing circumstances. The Committee answers the inquiry in the affirmative,
subject to the following portions of this opinion.
In this advisory opinion of the Committee the facts have been generalized because it is
not within the province of this Committee to render opinions of law or to concur with an
attorney’s opinion that Florida law in a particular area is genuinely uncertain. Nonetheless, the
attorney’s inquiry requires a response from this Committee because it involves a matter of ethics,

as well as matters of law. Canon 7 of the Code of Professional Responsibility addresses the
subject of an attorney’s advice to a client when the relevant law is uncertain.
Solely for the purpose of providing a frame of reference and a possible example of a
situation to which this opinion might conceivably be interpreted by some to be applicable, and
without in any way basing this opinion upon any specific fact situation or expressing or
addressing any specific point of law, we refer to the following fact situation, which for present
purposes is considered to be hypothetical: A lawyer is requested to prepare an instrument
directing any doctor treating the lawyer’s client to not utilize any heroic or extraordinary
life-sustaining, resuscitative or maintenance procedures to preserve the client’s life in the event
the client has a terminal illness or injury. The client further requests that the instrument provide
that in the event the client is not competent at the time of such terminal illness or injury, the
decision as to whether or not to use extraordinary, heroic efforts be joined in by a specified third
party. See in that regard, Florida Statutes, Section 782.08, where felonious conduct is defined to
include “deliberately assisting another in the commission of self murder. . . .” and The Matter of
Quinlan, 355 A.2d 647 (N.J. 1976), where no unlawful conduct on the part of certain parties was
found to exist, subject to certain stated conditions, where those parties engaged in conduct
involving termination of efforts to preserve the life of another who existed in a noncognitive,
vegetative state.
The New Jersey Supreme Court in Quinlan referred to the need for “. . . the law, equity
and justice. . .” to not be helpless “in the face of modern technological marvels presenting
questions hitherto unthought of” and also noted the need to answer novel questions previously
Under EC 7-6, “A lawyer as advisor furthers the interests of his client by giving his
professional opinion as to what he believes would likely be the ultimate decision of the courts on
the matter at hand and by informing his client of the practical effect of such decision.”
As set forth in EC 7-2: “The bounds of the law in a given case are often difficult to
ascertain. . . . The limits and specific meaning of apparently relevant law may be made doubtful
by changing or developing constitutional interpretations, inadequately expressed statutes or
judicial opinions, and changing public and judicial attitudes.” EC 7-1 notes that “certainty of law
ranges from well-settled rules through areas of conflicting authority to areas without precedent.”
EC 7-3 provides, in pertinent part: “Where the bounds of law are uncertain the action of
the lawyer may depend on whether he is serving as an advocate or advisor . . . [A] Lawyer
serving as advisor primarily assists his client in determining the course of future conduct and
relationships . . . In serving a client as advisor, a lawyer in appropriate circumstances should give
his professional opinion as to what the ultimate decisions of the courts would likely be as to the
applicable law.”
But EC 7-3 does not address the point, or provide specific guidance, as to what the
lawyer should do in a situation where, due to genuine uncertainty as to the law, especially in
areas without precedent, the lawyer cannot render an opinion in good faith with any degree of
assurance that it will likely ultimately be consistent with the decisions of the courts. More
specifically, as to the general facts of this inquiry, EC 7-3 does not appear to provide guidance as

to the conduct of an attorney in preparing an instrument of the type described in this inquiry
where the attorney has such genuine uncertainty as to the likely outcome in the courts in the
event the instrument, or the conduct authorized thereby, is challenged. It is that point to which
this Opinion of the Committee is directed.
As the Preliminary Statement to the Code provides, the ethical considerations of the Code
are “a body of principles upon which the lawyer can rely for guidance in many specific
situations” whereas the disciplinary rules . . . are mandatory in character. The disciplinary rules
of the Code, in our view, are likewise not specifically directed to the subject matter of this
inquiry, although DR 7-102(A)(7) does say that a lawyer is specifically precluded from
counseling or assisting his client . . . “in conduct that the lawyer knows to be illegal or
fraudulent.” (Emphasis added.)
It is the Committee’s opinion, taking into consideration the foregoing sections of the
Code, that the actions of the inquiring attorney in preparing the suggested instrument and in
advising the client with respect to the instrument should be dictated and governed by the
lawyer’s evaluation of the state of the law and, in the event of genuine uncertainty on his part in
that regard, he should give to the client his opinion to that effect, accompanied by full disclosure
to the client of all of the relevant considerations and possible legal effects, including any
possibility of civil or criminal liability on the part of anyone as a result of the instrument and
conduct thereunder. The client should clearly be advised as to the possible liability of the third
party who is designated to use the instrument and authorized thereby to engage in certain
conduct. In addition, that third party should receive like advice from the attorney if the third
party is not involved in the transaction or does not have his own counsel in that regard.