OBA Ethics Counsel
Ethics Opinion No. 260
Adopted March 19, 1971
The Committee has been asked for an opinion as to the ethical propriety of an attorney utilizing his secretary or other lay personnel in his office for the purpose of filing papers at the Court Clerk's office and also for the purpose of presenting to the Court orders for signature in probate and divorce matters. The inquiry indicates that the orders in the divorce cases are principally in the nature of temporary orders, but acknowledges that probably other orders of a more permanent nature are also presented to the Court by non-lawyers. The question is whether it is ethical for lawyers to so utilize lay personnel for these duties.
The inquiry above involves the application of Canon 3 of the Code of Professional Responsibility which provides as follows:
"A lawyer should assist in preventing the unauthorized practice of law."
Ethical Consideration 3_6 under Canon 3 states that "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."
Formal Opinion 316 of the American Bar Association Standing Committee (1967), holds:
"A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, non-lawyer draftsmen or non-lawyer researchers. In fact, he may employ non-lawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client."
That Opinion also holds that a lawyer cannot delegate his professional responsibility to a law student employed in his office.
The use of lay employees such as secretaries, law interns and clerks to perform ministerial tasks at the court house such as filing papers in the court clerk's office, recording deeds and the like is not objectionable and is a reasonable utilization of lay personnel which will enable a lawyer to render legal services to his clients more economically and efficiently. Such delegation is proper under Canon 3, Code of Professional Responsibility.
However, it is unethical for a lawyer to so delegate any task which may require professional judgment. Obviously, an appearance in or before the court by a lay employee on behalf of a lawyer's client would violate the accepted interpretation of Canon 3 and would constitute the unauthorized practice of law.
The presentation of legal documents, orders, process and the like to the court will, in many instances, require the exercise of professional judgment by the person making such presentation. For example, in divorce matters the question of the amount to be included for temporary alimony or child support payments and how broad temporary injunctive relief should be is a subject inquired about by the judge before signing temporary orders. The presentation of orders of default judgment may also require professional opinion as to the sufficiency of service and the regularity of granting judgment in the amount requested by the presenting party. Any attempt by a non-lawyer to satisfy such inquiries or to render professional opinions or exercise professional judgment upon questions raised by the court would constitute the unauthorized practice of law and be clearly beyond the scope of permissible activities of lay personnel employed in law offices.
It is, therefore, the opinion of this Committee that without limitation to divorce or probate matters it is unethical for an attorney to permit any non-lawyer employee to present pleadings, orders or other papers to the court for signature or other action, because such activity constitutes the practice of law. A lawyer authorizing or permitting such activity would be aiding the unauthorized practice of law.