"
MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-25
Advertising-Solicitation: Propriety of Offering To Prospective Clients Estate Planning Guide and Will Package
You request an opinion from this Committee on the ethical propriety of selling legal advice in the ""form of a ""do-it-yourself"" will package. You describe this proposed offering as a ""simple, self-executing and low cost will package"". You also state a part of the package is the opportunity for review with an attorney.
Your letter frames four ""ethical questions"" which this Committee will individually address as follows:
1. What is the extent of our duty to inform purchasers of a will package of changes in the law which might affect the status of their estate?
The Maryland Rules of Professional Conduct state: ""Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and comply with reasonable, request for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.""
This rule, in effect since January 1, 1988 has no direct counterpart to the former Disciplinary Rules of the Code, however, the comments to this Rule are more instructive. Therein the guiding principle is that the lawyer should fulfill reasonable client expectation for information consistent with the duty to act in the client's best interest, and the client's overall requirements as to the character of representation.
The scheme you present contemplates the selling of legal advice; activity which is subject to the Rules of Professional Conduct. For those persons who consult with an attorney in your office as provided, it appears clear that an attorney/client relationship is formed and the scope of representation may be determined in accordance with Rule 1.2 (Scope of Representation). However, as to those persons who choose not to initiate consultations in conjunction with accomplishing the objectives of the will package, it appears a mixed question of fact and law whether an attorney-client relationship has been formed. Such questions are outside the scope of this Committee.
.2. What liability would we incur, if any, when a client errs in some aspects in preparing his will, notwithstanding the fact that our directions were clear, accurate, and complete?
Former DR-6-102 (A) has been recodified at Rule 1.8 (h) and reads in pertinent part: 11(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a - client for malpractice...""
The Rules recognize a client's right to rely upon a lawyer's skill and judgment and the client's right to look to that lawyer for compensation in the event of a negligent failure in that skill as judgment. Again, assuming this inquiry poses a question of legal liability upon attorneys acting under the proposed scheme, legal issues are outside the scope of this Committee and therefore we render no opinion.
3.Whether the proposed scheme by your D.C. law firm acting in Maryland constitute unauthorized practice of law in Maryland although your firm has associated with a Maryland P.C.
Questions concerning unauthorized practice of law are outside the scope of the Committee on this and your inquiry should be posed to the Committee on Unauthorized Practice, Maryland State Bar Association.
4.Whether this Committee will approve the proposed concept?
The Committee on Ethics opines on specific inquiries and does not grant approval of submitted proposals or suggest changes toward accomplishing compliance with the Rules of Professional Conduct.
"