September 13, 1983
A nonlawyer may not prepare wills and last testaments even if it is merely to fill in standard, pre-printed simple last wills and testaments;
Although a lawyer may receive a fee for speaking at a seminar which the lawyer initiates or which is initiated by a qualified legal assistance organization, as long as the lawyer does not laud his own talents or attributes. A lawyer may not accept post-seminar business from attendees at an estate-planning seminar sponsored by nonlawyers regardless of whether the lawyer speaks for a fee.
When a lawyer knows that a nonlawyer who sponsors an estate-planning seminar intends on engaging in the unauthorized practice of law in the form of preparing wills for the seminar attendees, the lawyer must cease participation in all future seminar.
References: MCPR DR 2-103(D)(1)-(4), DR 2-104(A)(2) and (4), DR 3-101(A); CI-238, CI-313; ABA i1254; Grand Rapids Bar Ass'n v. Denkema, 290 Mich 56 (1939); Detroit Bar Ass'n v. United Guardian Trust, 282 Mich 216 (1937); Hightower v. Detroit Edison Co., 262 Mich 1 (1933).
A lawyer has been asked by a nonlawyer investment advisor to participate on a fixed fee basis with nonlawyers in a seminar, free to the public, at which a faculty of nonlawyers and lawyers, including an estate planner, tax specialist and investment advisor, shall generally discuss respective facets of expertise in the realm of estate planning. The goal of the seminars is to generate contacts to realize at least some post-seminar business. At the end of the seminar, a questionnaire will be distributed to willing attendees upon which a a simple will can be prepared at no charge.
The layer asks whether participation is ethical.
In ABA i1254, a "planning department" of a television religious ministry assisted the viewing public, without charge, in estate planning in gathering requisite information in the form of a telephone questionnaire. When a response was received, the department would send the information to a lawyer within the local viewing area of the responding public. A local lawyer would then draft the will or other necessary documentation. The ABA Committee concluded that to draft a will appropriate for an individual, a lawyer must obtain all relevant facts, and that the decision as to what facts are relevant is an important part of law work. Under the arrangement these functions are not necessarily performed by a lawyer.
Drafting wills and other legal documents is the practice of law and may only be performed by persons licensed to practice law. Grand Rapids Bar Ass'n v. Denkema, 290 Mich 56 (1939); Detroit Bar Ass'n v. United Guardian Trust, 282 Mich 216 (1937); Hightower v. Detroit Edison Co., 262 Mich 1 (1933). A lawyer's participation in a seminar which involves a nonlawyer drafting wills, even fill-in-the-blank variety, would aid the unauthorized practice of law and is prohibited. MCPR DR 3-101(A).
A lawyer may realize a financial spin-off from speaking at a seminar organized by nonlawyers. MCPR DR 2-104(A)(4) would allow the lawyer to accept follow up business as long as the lawyer does not laud himself before the attendees and does not answer specific questions. MCPR DR 2-104(A)(2) states:
"(2) a lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistance organization." Emphasis added.
The term "qualified legal assistance organization" is defined in MCPR DR 2-103(D)(1)-(4) and would appear not to include nonlawyer investment advisor organizers for an estate-planning seminar. In at least two prior opinions lawyers have been prohibited from accepting employment from seminar attendees. CI-238, CI-313.