July 19, 1982
Whether or not a lawyer employed full time by a trust company may draft wills and trust agreements for customers of the trust company is a legal question beyond the jurisdiction of the Committee.
It is unethical for a lawyer to assist a nonlawyer in the unauthorized practice of law. Attorneys have an affirmative duty to report lay agencies engaged in the unauthorized practice of law.
References: MCPR Canon 3; MCPR DR 3-101(A).
A lawyer asks whether it is ethical (a) for the lawyer to draft wills and trusts for bank customers when employed as inside counsel by the trust company, and (b) for the trust company to provide customers with form trust agreements having a beneficiary designation that is either standard in content or blank for the customer to fill out.
The jurisdiction of this Committee is limited to interpretting ethics rules; the Committee has no authority to respond to questions of law. To the extent that this inquiry concerns ethical issues, the Committee will endeavor to give you guidance. It is beyond the power of this Committee to issue an Opinion on whether or not a lawyer employed full-time by a trust company may draft wills and trusts for trust company customers, since the question is fundamentally legal and not ethical. But see Detroit Bar Ass'n v. Union Guardian Trust Co, 282 Mich 216 (1937); Grand Rapids Bar Ass'n v. Denkema, 290 Mich 56 (1939); Ingham County Bar Ass'n v. Neller Co, 342 Mich 218 (1955); State Bar of Michigan v. Cramer, 399 Mich 116 (1976).
MCPR Canon 3 states "a lawyer should assist in preventing the unauthorized practice of law"; MCPR DR 3-101(A) prohibits a lawyer from aiding a nonlawyer in the unauthorized practice of law. The rationale for this rule is founded in the concept that lawyers alone are subject to the special fiduciary duties inherent in the lawyer-client relationship. Ethics rules do not specify what activities constitute "the practice of law." ABA i1972 indicates that the courts of each jurisdiction are the proper forums to decide what activities constitute the practice of law.
A lawyer's duty not to aid an unauthorized person in the practice of law imposes on the lawyer an affirmative duty to report lay agencies that are engaged in the unauthorized practice of law. In this state, violations should be reported to the State Bar Committee on the Unauthorized Practice of the Law.