Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May a law firm, having advised its client of its intention to do so, delegate authority to a paralegal employee to make appearances at Workers' Compensation Appeals Board hearings and to file petitions, motions or other material?
A law firm may delegate such authority, provided that the paralegal employee is adequately supervised.
Rules 3-101, 3-103 and 6-101 of the Rules of Professional Conduct of the State Bar of California.
A client has contracted for the services of a law firm for representation in a matter pending before the Workers' Compensation Appeals Board (hereinafter "WCAB"). The law firm employs and intends to utilize the services of the paralegal in connection with the proceedings pending before the WCAB to make appearances, file petitions and present motions.
The client has consented to the law firm utilizing the services of the paralegal, after being informed as to the potential consequences of representation by a person of presumably lesser qualification and skills than may be reasonably expected of an attorney. In addition, the status of the employee as a paralegal rather than an attorney will be fully disclosed at all proceedings at which the paralegal appears and on all documents which the paralegal prepares.
It is unlawful for any person to practice law in this state without active membership in the State Bar of California. (Bus. & Prof. Code, sec. 6125.) The practice of law includes the performing of services in any matter pending in a court or administrative proceeding throughout its various stages, as well as the rendering of legal advice and counsel in the preparation of legal instruments and contracts by which legal rights are secured. (cf. Smallberg v. State Bar (1931) 212 Cal. 113.)
It has been held that the representation of claimants before the Industrial Accident Commission (predecessor to the WCAB) constitutes the performance of legal services. (Bland v. Reed (1968) 261 Cal.App.2d 445, 448.) However, the representation by a non-attorney of an applicant before the WCAB is expressly authorized by Labor Code sections 5501 and 5700 as follows:
The application may be filed with the appeals board by any party in interest, his attorney, or other representative authorized in writing . . . .
. . . Either party may be present at any hearing, in person, by attorney, or by any other agent, and may present testimony pertinent under the pleading.
Thus, the principal issue is whether an attorney may hire a non- attorney to engage in conduct on behalf of the attorney's client which the employee is authorized to perform independently, but which, if performed by the attorney, would constitute the practice of law.
It is the opinion of the Committee that because the client has been informed about, and has consented to the involvement of the paralegal, no violation occurs with respect to dishonesty or deceit. (See Bus. & Prof. Code, secs. 6106, 6128, subd.(a).) In addition, if the status of the employee as a paralegal rather than an attorney is fully disclosed at all proceedings at which the paralegal appears and on all documents which the paralegal prepares, no violation of the prohibition on an attorney lending his or her name to be used as attorney by a person not licensed to practice law will occur. (See Bus. & Prof. Code, sec. 6105.) In addition, because Labor Code sections 5501 and 5700 expressly authorize non-attorneys to represent applicants before the WCAB, the proposed arrangement would not constitute a violation of Rule of Professional Conduct 3-101(A), which provides as follows:
A member of the State Bar shall not aid any person, association, or corporation in the unauthorized practice of law. (Emphasis added.)
Further, there is no indication in the facts presented that the relationship between the paralegal and the law firm would constitute a partnership in violation of Rule of Professional Conduct 3-103, which provides as follows:
A member of the State Bar shall not form a partnership with a person not licensed to practice law if any of the activities of the partnership consist of the practice of law.
The pivotal consideration is that the client contracted for the services of the law firm, rather than a paralegal, for representation. However, since the safeguards mentioned above have been taken to avoid misleading or deceiving the client or any one else regarding the status of the paralegal, the Committee finds no ethical insufficiency inherent in the participation of the paralegal.
A lawyer or law firm contemplating entering into such an arrangement should remember that an attorney stands in a fiduciary relationship with the client. (Krusesky v. Baugh (1982) 138 Cal.App.3d 562, 567.) When acting as a fiduciary, the law imposes upon a member the strictest duty of prudent conduct as well as an obligation to perform his or her duties to the best of the attorney's ability. (Clark v. State Bar (1952) 39 Cal.2d 161, 167; and cf. Bus. & Prof. Code, sec. 6067; Rule of Professional Conduct 6-101(A).) However, an attorney does not have to bear the entire burden of attending to every detail of the practice, but may be justified in relying to some extent on non-attorney employees. (Moore v. State Bar (1964) 62 Cal.2d 74, 80; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857.)
The attorney who delegates responsibilities to his or her employees must keep in mind that he or she, as the attorney, has the duty to adequately supervise the employee. In fact, the attorney will be subject to discipline if the lawyer fails to adequately supervise the employee. (Chefsky v. State Bar (1984) 36 Cal.3d 116, 123; Palomo v. State Bar (1984) 36 Cal.3d 785, 795; Gassman v. State Bar (1976) 18 Cal.3d 125.)
What constitutes adequate supervision will, of course, depend on a number of factors, including, but not limited to, the complexity of the client matter, the level of experience of the paralegal and the facts of the particular case.
It is the opinion of the Committee that, even though the paralegal will be providing substantive legal services to the client, adequate supervision under these unique facts does not require the attorney to ensure that the paralegal performs the services in accordance with the level of competence that would be expected of the attorney under rule 6-101.1
So long as the paralegal is adequately supervised and the law firm does not mislead the client that the services will be performed in accordance with the attorney level of competence or that an attorney will be handling the matter, the Committee does not believe the attorney would be in violation of the Rules of Professional Conduct.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.
1The Committee is expressly not addressing the issue of malpractice liability of the attorney which may result from the paralegal providing substantive legal services to the client.
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