RPC 1.2; 1.6; 1.7(b); 1.8(f); 5.4(c); 7.1(b); 7.2(c); 7.3
Payment of lawyer's fee by third party; solicitation; referral by insurance agent
The following is a response to your inquiry regarding referrals from an insurance agent, the agent's submission of a questionnaire to his/her clients and what effect it may have on the attorney. Please be advised that your inquiry led to much heated debate and split of opinion among the committee. Furthermore, the committee believes that its split of opinion should be an indication to you not to rely on this informal opinion to support any action of civil liability to which you, as an attorney, may be subjected.
The committee responds to the following issues:
(1) Is it ethical for an attorney to draft a trust and a pour-over will for a client of an insurance agent, where the agent wishes to pay the fees for the preparation of those documents?
[2) Would the opinion differ if the client paid the fee and was reimbursed by the agent?
[3) Would the forwarding of a questionnaire by the insurance agent to his/her client recommending the lawyer's services for preparing trusts violate RPC 7.3?
It is the opinion of the committee that:
(1) If the attorney agrees to accept his/her fee from the insurance agent, RPC 1.2, 1.8(f) and 5.4(c) are mandated and the attorney must exercise independent professional judgment and provide the client candid and independent advice regardless of whether the fee is paid.
(2] If the attorney is to be paid by the client (who shall be reimbursed by the insurance agent), the attorney must comply with RPC 1.2 and 1.7(b) and maintain independent judgment in light of and expectation of future referrals from the agent.
(3] There is no prohibition against a lawyer being recommended by an insurance agent to the agent's client for purposes of having legal documents drafted, provided the communications regarding the attorney's abilities are not done in a manner to create an unjustified expectation about the results the lawyer can achieve (RPC 7.1(b)); and provided the lawyer does not give anything of value to the agent for recommending the lawyer's services except for the reasonable value for cost of advertising (RPC 7.2(c)). Likewise, the attorney needs to take care that the relationship initiated by the insurance agent does not breach into an RPC 7.3 relationship, where the initiative is that of the attorney seeking pecuniary gain. Finally, it will be incumbent upon the attorney to protect the client's confidences and secrets unless the client consents after consultation. RPC 1.6. In addition, RPC 1.2, 1.8(f), 5.4(c), 1.7(b), 1.6, 7.1(b), 7.2(c), and 7.3(a) and (b) may be found helpful.