Under former California rules, may a law firm delegate Workers' Compensation Appeals Board appearances, petitions, and motions to a paralegal employee with the client's informed consent and proper disclosure?
State Bar of California COPRAC Formal Opinion 1988-103: Delegating WCAB Appearances to a Paralegal Employee
Short answer: The opinion concluded that a law firm may delegate authority to a paralegal employee to make appearances at Workers' Compensation Appeals Board hearings and to file petitions, motions, or other material, provided the paralegal is adequately supervised, the client has been informed and has consented, and the paralegal's status as a non-attorney is fully disclosed at all proceedings and on all documents. Labor Code sections 5501 and 5700 expressly authorize non-attorney representatives before the WCAB.
Currency note
This opinion was issued in 1988, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rules 3-101 (aiding unauthorized practice), 3-103 (partnerships with non-lawyers), and 6-101 (competence). The substance is now in current California Rules 1.1, 5.3, and 5.5. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The committee took up a scenario where a law firm represented a client in a matter before the Workers' Compensation Appeals Board and intended to use a paralegal employee to make appearances, file petitions, and present motions. The client had been informed of the potential consequences of representation by a person of presumably lesser qualification and skill than expected of an attorney, and had consented. The paralegal's status as a non-attorney would be fully disclosed at all proceedings and on all documents.
The committee opined that the practice of law includes representing parties in administrative proceedings such as the WCAB (citing Bland v. Reed, 261 Cal.App.2d 445 (1968), addressing the predecessor Industrial Accident Commission), and that California Business and Professions Code section 6125 prohibits the unauthorized practice of law. However, Labor Code sections 5501 and 5700 expressly authorize non-attorney representatives to file applications and present testimony before the WCAB. Because non-attorneys are independently authorized to perform these services, Rule 3-101(A)'s prohibition on aiding unauthorized practice was not implicated.
On Rule 3-103 (partnerships with non-lawyers), the committee opined nothing in the facts suggested the paralegal-firm relationship constituted such a partnership. On dishonesty and deceit (Bus. & Prof. Code sections 6106 and 6128(a)) and the lending of an attorney's name to an unlicensed person (section 6105), the committee opined that the informed client consent and the disclosure of the paralegal's status at proceedings and on documents resolved those concerns.
On competence and supervision, the committee opined that an attorney stands in a fiduciary relationship with the client (citing Krusesky v. Baugh, 138 Cal.App.3d 562 (1982)) and is held to a strict duty of prudence and competent performance (citing Clark v. State Bar, 39 Cal.2d 161 (1952); Bus. & Prof. Code section 6067; former Rule 6-101(A)). The committee opined that the attorney is not required to attend to every detail and may rely to some extent on non-attorney employees (citing Moore v. State Bar, 62 Cal.2d 74 (1964); Vaughn v. State Bar, 6 Cal.3d 847 (1972)), but is subject to discipline for failure to supervise adequately (citing Chefsky v. State Bar, 36 Cal.3d 116 (1984); Palomo v. State Bar, 36 Cal.3d 785 (1984); Gassman v. State Bar, 18 Cal.3d 125 (1976)).
The committee opined that adequate supervision depends on factors including the complexity of the matter, the paralegal's level of experience, and the facts of the case. The committee opined that, even though the paralegal would provide substantive legal services, adequate supervision under these unique facts (Labor Code authority for non-attorney representation) did not require the attorney to ensure the paralegal performed at the level of competence expected of the attorney under former Rule 6-101. The committee expressly declined to address whether the attorney could face malpractice liability from such an arrangement.
Common questions
Q: Does delegating WCAB appearances to a paralegal aid the unauthorized practice of law?
A: Per the opinion, no, where Labor Code sections 5501 and 5700 independently authorize non-attorney representatives before the WCAB. The committee opined that Rule 3-101(A) is not implicated when the non-attorney is performing acts the statute authorizes.
Q: What must the client be told?
A: Per the opinion, the client must be informed of the potential consequences of representation by a person of presumably lesser qualification and skill than may be reasonably expected of an attorney, and the client must consent. The paralegal's status must also be fully disclosed at all proceedings and on all documents.
Q: What level of supervision is required?
A: Per the opinion, "adequate" supervision, the contours of which depend on the complexity of the matter, the paralegal's experience, and case facts. The committee opined that an attorney is subject to discipline for failure to supervise non-attorney employees adequately (citing Chefsky, Palomo, and Gassman).
Q: Does the attorney's competence duty under Rule 6-101 apply to the paralegal's substantive work?
A: Per the opinion, on these unique facts, the attorney is not required to ensure the paralegal performs at the level of competence expected of the attorney under former Rule 6-101. The Labor Code's separate authorization of non-attorney representation is part of the committee's reasoning.
Q: Did the committee address malpractice liability?
A: Per the opinion, no. The committee expressly declined to address potential malpractice liability arising from the paralegal's provision of substantive legal services.
Background and rules framework
The opinion interprets former California Rules 3-101 (aiding unauthorized practice of law), 3-103 (partnerships with non-lawyers), and 6-101 (competence), together with Business and Professions Code sections 6105, 6106, 6125, 6128(a), and 6067, and Labor Code sections 5501 and 5700 (non-attorney representation before the WCAB). The substance is now in current California Rules 1.1, 5.3, and 5.5.
Citations and references
Rules of Professional Conduct (former, in effect at time of opinion):
- Former California Rule 3-101(A)
- Former California Rule 3-103
- Former California Rule 6-101 (and 6-101(A))
Statutes:
- Cal. Bus. & Prof. Code sections 6105, 6106, 6125, 6128(a), and 6067
- Cal. Lab. Code sections 5501 and 5700
Cases:
- Smallberg v. State Bar, 212 Cal. 113 (1931), scope of practice of law
- Bland v. Reed, 261 Cal.App.2d 445 (1968), representation before predecessor IAC
- Krusesky v. Baugh, 138 Cal.App.3d 562 (1982), fiduciary relationship
- Clark v. State Bar, 39 Cal.2d 161 (1952), fiduciary duty of prudence
- Moore v. State Bar, 62 Cal.2d 74 (1964), reliance on non-attorney employees
- Vaughn v. State Bar, 6 Cal.3d 847 (1972), same
- Chefsky v. State Bar, 36 Cal.3d 116 (1984), discipline for failure to supervise
- Palomo v. State Bar, 36 Cal.3d 785 (1984), same
- Gassman v. State Bar, 18 Cal.3d 125 (1976), same
See also
No sibling opinions yet indexed.
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Source HTML: https://www.calbar.org/ethics/Opinions/1988-103.htm
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Ethics Opinions - FORMAL OPINION NO. 1988-103
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.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1988-103
ISSUE:
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?
DIGEST:
A law firm may delegate such authority, provided that the paralegal employee is adequately supervised.
AUTHORITIES INTERPRETED:
Rules 3-101, 3-103 and 6-101 of the Rules of Professional Conduct of the State Bar of California.
ISSUE
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.
DISCUSSION
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.
1 The 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.