Can a Colorado lawyer send a paralegal or other nonlawyer assistant to appear at a deposition, hearing, or administrative proceeding to represent a client?

Plain-English summary

Opinion 79 (adopted February 18, 1989) addressed whether an attorney may use paralegals, law clerks, or other nonlawyer legal assistants to appear at depositions, hearings, administrative proceedings, or other proceedings to represent the attorney's client where the representation would constitute the practice of law. Under the then-governing Code of Professional Responsibility, the Committee concluded that such use violates DR 3-101(A) (aiding a nonlawyer in the unauthorized practice of law) and DR 6-101 (competence) where the entrusted duty would be the unauthorized practice of law.

The Committee explained that determining what constitutes the practice of law is a judicial function, and that acting in a representative capacity to protect, enforce, or defend another's legal rights, or counseling and advising on those rights, is the practice of law. Representation in proceedings that are adjudicative (resolving disputes of fact or law before agencies or courts of record) is generally the practice of law, while representation in purely legislative or non-judicial proceedings generally is not, though even a legislative-type proceeding can entail the practice of law where the client's rights, privileges, or immunities could be adversely affected. The opinion listed factors for that inquiry, including whether testimony is taken under oath and recorded, whether the client will be cross-examined, whether privileges may need to be invoked, whether spontaneous strategic decisions are required, whether the proceeding is adjudicative, and whether the outcome may affect the client's liberty or significant property rights.

Applying those factors, the Committee concluded that using a paralegal to represent a debtor at a bankruptcy Section 341 creditors' meeting would violate DR 3-101(A), and that using lay assistants to represent a client at oral depositions would, except in the most extraordinary circumstances, violate DR 3-101(A) and DR 6-101, given the deposition's potential use at trial. It allowed a narrow exception: a lay assistant may attend a deposition solely to take notes where the client is not a party or has only limited involvement and will not need examination, cross-examination, objections, or stipulations. Where lay representation is expressly authorized by the Colorado Supreme Court (the opinion cited proceedings before the Public Utilities Commission and the Division of Employment and Training), or where the assistant's work is not the practice of law, the attorney must still ensure the assistant has the requisite knowledge, judgment, and skill and must observe the supervision guidelines of CBA Formal Opinion 61.

Currency note

This opinion was issued in 1989 under the former Colorado Code of Professional Responsibility, before Colorado's 2008 revisions to the Rules of Professional Conduct. A 1995 addendum noted that the Colorado Rules of Professional Conduct took effect January 1, 1993, and that the Committee considered the opinion to continue providing guidance, directing attorneys to Rule 5.3 (nonlawyer assistants), Rule 1.1 (competence), Rule 1.3 (diligence), and Rule 1.4 (communication). 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.

Common questions

Q: Could a Colorado lawyer have a paralegal represent a client at a deposition?

A: Generally no. The opinion concluded that using a lay assistant to represent a client at an oral deposition would, except in the most extraordinary circumstances, violate DR 3-101(A) and DR 6-101, because the knowledge, judgment, and skill needed for examination, cross-examination, objections, and deposition strategy require a licensed lawyer.

Q: Was there any role a nonlawyer assistant could play at a deposition?

A: A narrow one. The opinion concluded a lay assistant could attend a deposition solely to take notes where the client is not a party or has only limited interest, but only after the lawyer carefully determined the client's interests would not require examination, cross-examination, objections, or consideration of stipulations.

Q: Could a paralegal appear for a client at an administrative hearing?

A: It depended on the proceeding. The opinion concluded that lay representation in adjudicatory proceedings before administrative agencies is the unauthorized practice of law absent express authorization by the Colorado Supreme Court, which had permitted lay representation in certain limited matters such as before the Public Utilities Commission.

Q: If the assistant's task was not the practice of law, did the lawyer have any duties?

A: Yes. The opinion concluded that even where the assistant's work was not the practice of law or was expressly authorized, the attorney had to ensure the assistant possessed the requisite knowledge, judgment, and skill and had to follow the supervision guidelines of CBA Formal Opinion 61, because lawyers remain responsible for their assistants' work.

Background and rules framework

The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 3-101(A) (a lawyer shall not aid a nonlawyer in the unauthorized practice of law) and DR 6-101 (competence and adequate preparation), together with EC 3-1, 3-2, and 3-5. It relied on Colorado Supreme Court decisions defining the practice of law, including Denver Bar Ass'n v. Public Utilities Commission and the unauthorized-practice cases cited below. The 1995 addendum mapped the analysis to the current Colorado Rules of Professional Conduct, principally Rule 5.3 (nonlawyer assistants) and Rules 1.1, 1.3, and 1.4. The corresponding Model Rules are 5.3 (nonlawyer assistance), 5.5 (unauthorized practice), and 1.1 (competence).

Citations and references

Rules of Professional Conduct:

• Colo. Code of Professional Responsibility DR 3-101(A), DR 6-101; EC 3-1, 3-2, 3-5 (governing rules at issuance)
• Colo. RPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistants; current analog)
• Colo. RPC 1.1, 1.3, 1.4 / Model Rules 1.1, 1.3, 1.4 (competence, diligence, communication)

Statutes:

• C.R.S. section 12-5-112 (unauthorized practice of law as contempt of the Colorado Supreme Court)

Cases:

• Denver Bar Ass'n v. Public Utilities Commission, 154 Colo. 273, 391 P.2d 467 (Colo. 1964), defining the practice of law and lay representation before agencies
• Unauthorized Practice of Law Committee v. Grimes, 654 P.2d 822 (Colo. 1982), unauthorized practice as contempt
• Unauthorized Practice of Law Committee v. Employers Unity, Inc., 716 P.2d 460 (Colo. 1986), limited lay representation before an agency
• Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957), scope of the practice of law

Other opinions cited:

• CBA Formal Op. 61 (1982): ethical guidelines for the use of lay legal assistants

See also

• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Support Services
• CBA Formal Op. 105: Temporary Lawyers

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_79_2011.pdf