Bar Rules

Formal Advisory Opinion No. 00-2

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 00-2

STATE BAR OF GEORGIA
ISSUED BY THE SUPREME COURT OF GEORGIA
ON FEBRUARY 11, 2000
FORMAL ADVISORY OPINION NO. 00-2

For references to Standard of Conduct 4, please see Rule 8.4(a)(4).

For references to Standard of Conduct 5, please see Rules 7.1(a) and (c).

For references to Standard of Conduct 24, please see Rule 5.5(a) and Comments [1] and [2] of Rule 5.5.

For references to EC 3-2, please see Rule 1.1.

For references to EC 3-5, please see Rule 2.1.

For references to EC 3-6, please see Rule 5.3 and Comment [1] to Rule 5.3.

For an explanation regarding the addition of headnotes to the opinion, click here.

QUESTION PRESENTED:

Is a lawyer aiding a nonlawyer in the unauthorized practice of law when the lawyer allows a nonlawyer member of his or her staff to prepare and sign correspondence which threatens legal action or provides legal advice or both?

SUMMARY ANSWER:

Yes, a lawyer is aiding a nonlawyer1 in the unauthorized practice of law when the lawyer allows a nonlawyer member of his or her staff to prepare and sign correspondence which threatens legal action or provides legal advice or both. Generally, a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer effectively substitutes the legal knowledge and judgment of the nonlawyer for his or her own. Regardless of the task in question, a lawyer should never place a nonlawyer in situations in which he or she is called upon to exercise what would amount to independent professional judgment for the lawyer's client. Nothing in this limitation precludes paralegal representation of clients with legal problems whenever such is expressly authorized by law.2

In order to enforce this limitation in the public interest, it is necessary to find a violation of the provisions prohibiting aiding a nonlawyer in the unauthorized practice of law whenever a lawyer creates the reasonable appearance to others that he or she has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own in the representation of the lawyer's client.

As applied to the specific questions presented, a lawyer permitting a nonlawyer to give legal advice to the lawyer's client based on the legal knowledge and judgment of the nonlawyer rather than the lawyer, would be in clear violation of Standards of Conduct 24, 4, and 5. A lawyer permitting a nonlawyer to prepare and sign threatening correspondence to opposing counsel or unrepresented persons would be in violation of these Standards of Conduct because doing so creates the reasonable appearance to others that the nonlawyer is exercising his or her legal knowledge and professional judgment in the matter.

OPINION:

This request for a Formal Advisory Opinion was submitted by the Investigative Panel of the State Disciplinary Board along with examples of numerous grievances regarding this issue recently considered by the Panel. Essentially, the request prompts the Formal Advisory Opinion Board to return to previously issued advisory opinions on the subject of the use of nonlawyers to see if the guidance of those previous opinions remains valid for current practice.3

The primary disciplinary standard involved in answering the question presented is: Standard 24, ("A lawyer shall not aid a nonlawyer in the unauthorized practice of law.") As will become clear in this Opinion, however, Standard 4 ("A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit or willful misrepresentation.") and Standard 5 ("A lawyer shall not make any false, fraudulent, deceptive, or misleading communications about the lawyer or the lawyer's services.") are also involved.

In interpreting these disciplinary standards as applied to the question presented, we are guided by Canon 3 of the Code of Professional Responsibility, "A Lawyer Should Assist in Preventing the Unauthorized Practice of Law," and, more specifically, the following Ethical Considerations: Ethical Consideration 3-2, Ethical Consideration 3-5, and Ethical Consideration 3-6.

In Advisory Opinion No. 19, an Opinion issued before the creation of the Formal Advisory Opinion Board and the issuance of advisory opinions by the Supreme Court, the State Disciplinary Board addressed the propriety of Georgia lawyers permitting nonlawyer employees to correspond concerning "legal matters" on the law firm's letterhead under the nonlawyer's signature. The Board said that in determining the propriety of this conduct it must first define the practice of law in Georgia. In doing so, it relied upon the very broad language of a then recent Georgia Supreme Court opinion, Huber v. State, 234 Ga. 458 (1975), which included within the definition of the practice "any action taken for others in any matter connected with the law," to conclude that the conduct in question, regardless of whether a law suit was pending, constituted the practice of law.4 Any lawyer permitting a nonlawyer to engage in this conduct would be assisting in the unauthorized practice of law in violation of Standard 24, the Board said. The Board specifically limited this prohibition, however, to letters addressed to adverse or potentially adverse parties that, in essence, threatened or implied a threat of litigation. Furthermore, the Board noted that there was a broad range of activities, including investigating, taking statements from clients and other witnesses, conducting legal research, preparing legal documents (under "direct supervision of the member"), and performing administrative, secretarial, or clerical duties that were appropriate for nonlawyers. In the course of performing these activities, nonlawyers could correspond on the firm's letterhead under their own signature. This was permitted as long as the nonlawyer clearly identified his or her status as a nonlawyer in a manner that would avoid misleading the recipient into thinking that the nonlawyer was authorized to practice law.

Whatever the merits of the answer to the particular question presented, this Opinion's general approach to the issue, i.e., does the conduct of the nonlawyer, considered outside of the context of supervision by a licensed lawyer, appear to fit the broad legal definition of the practice of law, would have severely limited the role of lawyer-supervised nonlawyers to what might be described as in-house and investigatory functions. This Opinion was followed two years later, however, by Advisory Opinion No. 21, an Opinion in which the State Disciplinary Board adopted a different approach.

The specific question presented in Advisory Opinion No. 21 was: "What are the ethical responsibilities of attorneys who employ legal assistants or paraprofessionals and permit them to deal with other lawyers, clients, and the public?" After noting the very broad legal definition of the practice of law in Georgia, the Board said that the issue was instead one of "strict adherence to a program of supervision and direction of a nonlawyer."

This insight, an insight we reaffirm in this Opinion, was that the legal issue of what constitutes the practice of law should be separated from the issue of when does the practice of law by an attorney become the practice of law by a nonlawyer because of a lack of involvement by the lawyer in the representation. Under this analysis, it is clear that while most activities conducted by nonlawyers for lawyers are within the legal definition of the practice of law, in that these activities are "action[s] taken for others in . . . matter[s] connected with the law," lawyers are assisting in the unauthorized practice of law only when they inappropriately delegate tasks to a nonlawyer or inadequately supervise appropriately delegated tasks.

Implicitly suggesting that whether or not a particular task should be delegated to a nonlawyer was too contextual a matter both for effective discipline and for guidance, the Disciplinary Board provided a list of specific tasks that could be safely delegated to nonlawyers "provided that proper and effective supervision and control by the attorney exists." The Board also provided a list of tasks that should not be delegated, apparently without regard to the potential for supervision and control that existed.

Were we to determine that the lists of delegable and non-delegable tasks in Advisory Opinion No. 21 fully governed the question presented here, it would be clear that a lawyer would be aiding the unauthorized practice if the lawyer permitted the nonlawyer to prepare and sign correspondence to clients providing legal advice (because it would be "contact with clients . . . requiring the rendering of legal advice) or permitted the nonlawyer to prepare and sign correspondence to opposing counsel or unrepresented persons threatening legal action (because it would be "contacting an opposite party or his counsel in a situation in which legal rights of the firm's clients will be asserted or negotiated"). It is our opinion, however, that applying the lists of tasks in Advisory Opinion No. 21 in a categorical manner runs risks of both over regulation and under regulation of the use of nonlawyers and, thereby, risks both the loss of the efficiency nonlawyers can provide and the loss of adequate protection of the public from unauthorized practice. Rather than being applied categorically, these lists should instead be considered good general guidance for the more particular determination of whether the representation of the client has been turned over, effectively, to the nonlawyer by the lawyer permitting a substitution of the nonlawyer's legal knowledge and judgment for that of his or her own. If such substitution has occurred then the lawyer is aiding the nonlawyer in the unauthorized practice of law whether or not the conduct is proscribed by any list.

The question of whether the lawyer has permitted a substitution of the nonlawyer's legal knowledge and judgment for that of his or her own is adequate, we believe, for guidance to attorneys in determining what can and cannot be delegated to nonlawyers. Our task, here, however, is broader than just giving guidance. We must also be concerned in issuing this opinion with the protection of the public interest in avoiding unauthorized practice, and we must be aware of the use of this opinions by various bar organizations, such as the Investigative Panel of the State Disciplinary Board, for determining when there has been a violation of a Standard of Conduct.

For the purposes of enforcement, as opposed to guidance, it is not adequate to say that substitution of the nonlawyer's legal knowledge and judgment for that of his or her own constitutes a violation of the applicable Standards. The information for determining what supervision was given to the nonlawyer, that is, what was and was not a substitution of legal knowledge and judgment, will always be within the control of the attorney alleged to have violated the applicable Standards. To render this guidance enforceable, therefore, it is necessary to find a violation of the Standards prohibiting aiding a nonlawyer in the unauthorized practice of law whenever a lawyer creates the reasonable appearance to others that he or she has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own.

Thus, a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer creates a reasonable appearance to others that the lawyer has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own. Regardless of the task in question, lawyers should never place nonlawyers in situations in which the nonlawyer is called upon to exercise what would amount to independent professional judgment for the lawyer's client. Nor should a nonlawyer be placed in situations in which decisions must be made for the lawyer's client or advice given to the lawyer's client based on the nonlawyer's legal knowledge, rather than that of the lawyer. Finally, nonlawyers should not be placed in situations in which the nonlawyer, rather than the lawyer, is called upon to argue the client's position. Nothing in these limitations precludes paralegal representation of clients with legal problems whenever such is expressly authorized by law.5

In addition to assisting in the unauthorized practice of law by creating the reasonable appearance to others that the lawyer was substituting a nonlawyer's legal knowledge and judgment for his or her own, a lawyer permitting this would also be misrepresenting the nature of the services provided and the nature of the representation in violation of Standards of Conduct 4 and 5. In those circumstances where nonlawyer representation is specifically authorized by regulation, statute or rule of an adjudicatory body, it must be made clear to the client that they will be receiving nonlawyer representation and not representation by a lawyer.

Applying this analysis to the question presented, if by "prepare and sign" it is meant that the legal advice to be given to the client is advice based upon the legal knowledge and judgment of the nonlawyer, it is clear that the representation would effectively be representation by a nonlawyer rather than by the retained lawyer. A lawyer permitting a nonlawyer to do this would be in violation of Standards of Conduct 24, 4, and 5. A lawyer permitting a nonlawyer to prepare and sign threatening correspondence to opposing counsel or unrepresented persons would also be in violation of these Standards of Conduct because by doing so he or she creates the reasonable appearance to others that the nonlawyer is exercising his or her legal knowledge and professional judgment in the matter.

For public policy reasons it is important that the legal profession restrict its use of nonlawyers to those uses that would improve the quality, including the efficiency and cost-efficiency, of legal representation rather than using nonlawyers as substitutes for legal representation. Lawyers, as professionals, are ultimately responsible for maintaining the quality of the legal conversation in both the prevention and the resolution of disputes. This professional responsibility cannot be delegated to others without jeopardizing the good work that lawyers have done throughout history in meeting this responsibility.

Footnotes
1. The term "nonlawyer" includes paralegals.
2. See footnote 5 infra.
3. In addition to those opinions discussed in this opinion, there are two other Advisory Opinions concerning the prohibition on assisting the unauthorized practice of law. In Advisory Opinion No. 23, the State Disciplinary Board was asked if an out-of-state law firm could open and maintain an office in the State of Georgia under the direction of a full-time associate of that firm who was a member of the State Bar of Georgia. In determining that it could, the Board warned about the possibility that the local attorney would be assisting the nonlicensed lawyers in the unauthorized practice of law in Georgia. In Formal Advisory Opinion No. 86-5, an Opinion issued by the Supreme Court, the Board was asked if it would be improper for lawyers to permit nonlawyers to close real estate transactions. The Board determined that it would be if the responsibility for "closing" was delegated to the nonlawyer without participation by the attorney. We view the holding of Formal Advisory Opinion No. 86-5 as consistent with the Opinion issued here.
4. The language relied upon from Huber v. State was later codified in O.C.G.A. ยง15-19-50.
5. For example, it is perfectly permissible for a nonlawyer, employed as a paralegal by a law firm or by a non-profit corporation, such as the Georgia Legal Service Program, doing business as a law firm, to represent his or her own clients whenever paralegal representation is permitted by law, as it would be if the representation were on a food stamp problem at an administrative hearing, or before the Social Security Administration, or in other circumstances where a statute or the authorized rules of the adjudicatory body specifically allow for and regulate representation or counsel by persons other than a lawyer. It must be made clear to the clients, of course, that what they will be receiving is paralegal representation and not representation by a lawyer. Nothing in this opinion is intended to conflict with regulation, by statute or rule of an adjudicatory body, of use of nonlawyers in such authorized roles.



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