September 27, 1981
- Assist a layman in the unauthorized practice of law;
- Permit a lay intermediary to act as a go-between for himself and the person desiring legal services;
- Share legal fees with a non-lawyer where not authorized by the Disciplinary Rules;
- Permit or solicit a layman to solicit clients on the lawyer's behalf.
As a member of the State Bar Committee on Professional and Judicial Ethics, I have been asked to respond to your request for an informal opinion.
The situation you describe is as follows:
Your firm has a client who is in the process of forming a company that would provide video services. Among the services that your client is interested in providing is the videotaping of wills an depositions. You have asked the following questions with regard to the taping of wills:
If you prepare a simple "form" will for your client's customers, to be filled in by the customer prior to the videotaping session, will a lawyer have to be present while the form is being filled out, or will it be sufficient that your client or one of his staff is present? (You note that if a customer should need a more complex will, you would advise them accordingly and provide them with an appropriate will.)
When your client is advertising for the videotaped wills, whether it be in the newspaper, on the radio or television, does he have to include a statement that the wills are prepared by a lawyer, and if so, will your firm name have to be mentioned?
Since the customer would read his will on the videotape, he would have both a written and videotaped will. Would two witnesses be necessary to appear on the videotape as with the written will?
Since videotaped wills are a new concept, are there any problems with using the videotapes in Court?
Is there any other information we may have regarding the videotaping of wills and depositions which might be helpful to our client?
We see a number of ethical problems with the plan you propose. The major problem is that this appears to constitute the unauthorized practice of law by your client. Disciplinary Rule 3-101 provides:
It appears from the facts as you have described them that your client or one of his staff will be assisting the customer in the completion of the will form. While you have stated that you would advise any customer of your client when he should have a more complex will, it is unclear who will be making the determination that the customer would need a more complex will and/or a trust. If the client or his staff member will be making that decision, that will clearly constitute the unauthorized practice of law.
In Informal Opinion 25, this Committee looked to Ethical Consideration 3-5 of the Code Professional Responsibility for a definition of the practice of law.
"Functionally, the practice of law relates to the rendition of services for others that calls for the professional judgment of a lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client."
We also see a problem with your permitting a lay intermediary to act as a go-between for you and the customer. In several formal Ethics Opinions, this Committee has stated that it is improper for a lay agency or company to actually perform legal work, to act as a middleman between a lawyer and a client, and to solicit customers for a lawyer. Formal Opinion 199; Formal Opinion 187; Formal Opinion 26; see also, Informal Opinion 444; Informal Opinion 204; and Informal Opinion 25.
You have note described the proposed fee arrangement for this plan, but it appears that you may have a violation of Disciplinary Rule 3-102, which provides:
"(A) A lawyer or law firm shall not share legal fees with a non-lawyer, except that: . . . ."
None of the exceptions provided in 3-102 would cover your situation. Disciplinary Rule 3-103 provides:
"(A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law."
If your proposed plan would involve any type of fee-splitting arrangement or commission on the taping of each individual will, you would be acting in violation of DR 3-102. Formal Opinion 56.
With regard to your question on advertising, we would refer you to Administrative Order of the Michigan Supreme Court, 1979-7, which continued in effect Administrative Order 1978-4, which provided:
"A lawyer may on behalf of himself, his partner or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. Except for DR 2-103 and DR 2-104, Disciplinary Rules in conflict with this Order are suspended for a period of one year."
Disciplinary Rule 2-103 (C) provides:
"A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that: . . . ."
Once again, none of the exceptions would apply to your situation. Thus, it would be inappropriate for you to permit your client, when advertising, to mention your firm by name. Prior Opinions of this Committee have also stated that it is improper for a lawyer to perform work for a customer's client where the client was not informed that he was free to seek any legal counsel to perform the work. It is improper for your client to inform its customers that they must or should use your services in drafting their will prior to the videotaping.
Your final two questions with regard to the number of witnesses that would be required with a videotaped will and whether there would be any problems with using a videotaped will in Court present legal questions and therefore are outside of the jurisdiction of this Committee. We would, however, refer you to the Revised Probate Code for its definition of a will which is contained in Section 122.
While this Opinion is that of the undersigned, it has been circulated to the full Committee for comment prior to release.