Wills: Another Ethical Dilemma

Several weeks ago I was approached (informally) by a woman in her mid-70's with a question regarding her will. It seems the attorney who drafted the will had contacted her about updating the will to address recent legislative changes made in the law. It had been twenty years since the will was drafted. She also said the attorney wanted to schedule an appointment for her to come in and go over her estate plan.

To the lay person this may seem like an attorney who is looking out for the interest of his client. And this is most likely the case. But many in the legal profession take a more jaded view of the attorney's actions. They would characterize the attorney’s actions as a desperate attempt to make money by soliciting former clients for business. If the latter is the case, his actions are prohibited under ethical restrictions imposed under most state bars. This article deals with the Florida Rules Regulating Professional Conduct.

Florida Ethical Requirements
In Florida, the Rules Regulating Professional Conduct place a number of restrictions on soliciting clients for business. Specifically, Section 4-7.4 states that unless certain restrictive conditions are complied with “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

The question then becomes “what about soliciting former clients to update their wills?” For the answer to this question Florida Bar Ethics Opinion 64-61 sheds some light. To my knowledge the opinion is still valid despite being several decades old. It is cited in a number of recent opinions.

Ethics Opinion 64-61
Florida Bar Ethics Opinion 64-61 states that “a lawyer may notify his clients, whose wills are prepared by the lawyer, of changes in federal tax law or regulations which may affect their wills.” But this is not a rubber stamp for all attorneys to begin soliciting former clients. The Opinion placed several conditions that must exist for the attorney to contact the client. These restrictions include: (1) the lawyer (or his firm) must have prepared the will; (2) the lawyer must not have a reason to believe that the will has been revoked or superseded; (3) the lawyer must have reason to believe that, because of the new developments in the law, the existing will may no longer achieve the testator's desires; and (4) the lawyer may not solicit or suggest his or his firm's professional employment.
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