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Advisory Opinion 19

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State Disciplinary Board
Advisory Opinion No. 19
July 18, 1975

Propriety of a member of the State Bar permitting a paralegal in his employ to correspond concerning "legal matters" on the law firm letterhead under his own signature.

Pursuant to the provisions of Rule 4-217 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia and the applicable statutes and case law as applied to a specific fact situation.

An opinion has been requested concerning the propriety of a member of the State Bar permitting a paralegal in his employ to correspond concerning "legal matters" on the law firm letterhead under his own signature.

The opinion of the Supreme Court of Georgia which is applicable to this inquiry is Huber v. State, 234 Ga. at 358, 216 S.E.2d 73 (1975)which provides as follows:

"'(W)e are of the opinion that the practice of law...(is) not confined to practice in the courts of this State, but (is) of larger scope, including the preparation of pleadings and other papers incident to any action or special proceeding in any court or other judicial body, conveyancing, the preparation of all legal instruments of all kinds whereby a legal right is secured, the rendering of opinions as to the validity or invalidity of the title to real or personal property, the giving of any legal advice, and any action taken for others in any matter connected with the law.' Boykin v. Hopkins, 174 Ga. 511, 519 (162 S.E. 796)."

Cf. Ga. L. 1931, P. 191 as amended by Ga. L. 1937, p. 753 (Ga.Code Ann. § 9-401).

The ethical consideration applicable to this inquiry is State Bar Rule 3-103, EC 3-6 which provides as follows:

"A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal services more economically and efficiently."

This disciplinary rule which is applicable to this inquiry is State Bar Rule 4-102.1, DR 3-101(A) which provides as follows:

"A lawyer shall not aid a nonlawyer in the unauthorized practice of law."

"Paralegals," "legal assistants,""law clerks," "paraprofessionals," "litigation assistants,"etc., are laymen who are not entitled to practice law and who are not entitled to membership in the State Bar of Georgia. Although the State Bar may intercede in a paralegal's activities to the extent that those activities might involve the unauthorized practice of law1, it has not power to discipline paralegals in that its disciplinary jurisdiction is expressly limited to its membership.

The State Bar is authorized to advise its members concerning the activities in which their employees, including paralegals, should be allowed to engage. Further, if a member of the State Bar allows a paralegal in his employ to perform functions that amount to the unauthorized practice of law, the Bar is authorized to discipline the member under DR 3-101(A) of State Bar Rule 4-102.1.

A member of the State Bar may allow a paralegal, as he may allow any other layman, to assist him in such a manner or to perform such tasks on his behalf as do not constitute the practice of law. Therefore, our inquiry must concern:

(1) The definition of the practice of law in Georgia, and
(2) Whether the conduct which is the subject of this inquiry transgresses the definition.

The Supreme Court has defined the practice of law in the Huber case, supra. Does correspondence by a paralegal on his firm's letterhead bearing his own signature and concerning "legal matters" fall within the Supreme Court's definition? The answer depends upon the party to whom the correspondence is written and the substance of the correspondence.

We are of the opinion that the phrase "any action taken for others in any matter connected with the law" in the above quoted definition is intended to comprehend communication connected with any legally enforceable right or remedy without regard to whether a suit is actually pending before a court in this State. Therefore, even pre-litigation communication falls within the definition if it is directed to a potentially adverse party, his agents, assigns, or beneficiaries and if it attempts to suggest or assert an actual or potential claim of right to legal or equitable relief for another upon the condition, either expressed or implied, that a failure to satisfy such suggestion or assertion may result in litigation. Any such correspondence written on a law firm letterhead, by its very nature, implicitly suggests subsequent legal proceedings and thus constitutes the practice of law. To that extent, if a member of the State Bar allows a paralegal in his employ to sign correspondence on the law firm letterhead, he aids the paralegal in the unauthorized practice of law and opens himself to discipline.

We specifically restrict the foregoing opinion to letters directed to adverse or potentially adverse parties, their agents, assigns or beneficiaries. Under EC 3-6 of State Bar Rule 3-103, a member may ethically utilize the services of paralegals in a wide range of circumstances such as investigating potential claims and pending cases, taking statements from clients and witnesses, engaging in legal research, preparing legal documents and pleadings under direct supervision of the member, performing administrative duties within and on behalf of the law firm, and performing secretarial or clerical duties. To the extent necessary to perform these functions and to the extent that these functions do not fall within the above-cited definition of the practice of law, a paralegal may correspond on the law firm letterhead in his own name.

When a paralegal in the employ of a member of the State Bar is permitted by the member to correspond on the law firm letterhead, the member must be sure that the paralegal clearly identifies his status by the use of an appropriate designation such as "paralegal," "legal assistant," or "law clerk." The failure to do so could easily mislead the recipient of the correspondence and might constitute a representation on the part of the member that the paralegal in his employ is a member of the State Bar and authorized to practice law in this State.

1 Ga. L. 1946, p. 171 (Ga. Code Ann. §§ 9-306 through 9-411).



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