Can a lawyer let the client read pre-written questions and conduct the examination at proceedings supplementary to enforce a judgment?

Plain-English summary

A firm represented a lending institution that frequently needed to enforce money judgments. It asked whether, after obtaining a judgment, the client itself could appear before a court reporter and ask the judgment debtor a set of written questions prepared by the firm, with objections noted in the record and any contempt proceedings handled by the firm. The firm would prepare the deposition notice and conduct all other proceedings; the client would perform only the "perfunctory act" of asking the written questions.

The committee found that the proposal raised a substantial unauthorized-practice question, which was outside its jurisdiction except to repeat that the former Canon 47 precludes a lawyer from aiding the unauthorized practice of law. Beyond that, the committee concluded the proposal would amount to the lawyer surrendering personal conduct of the litigation to the client. Although reading prepared questions might seem routine, matters such as claiming exemptions and raising constitutional objections frequently arise in supplementary proceedings and could lead to complications. Quoting an American Bar Association opinion (Opinion 68) condemning a lawyer furnishing letterhead for a corporate client to write collection letters, the committee reasoned that a layman cannot be expected to know a lawyer's responsibilities and restrictions. Sanctioning the practice would have no logical stopping point, such as letting an insurance adjuster ask oral questions in a routine accident case. The committee limited its answer to a layman handling a portion of litigation originally assigned to the lawyer and did not address situations in which it would otherwise be proper for laymen to handle the matter from the beginning.

Currency note

This opinion was issued in October 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 47 (a lawyer must not aid the unauthorized practice of law). That subject is now governed by Rule 4-5.5 of the Rules Regulating The Florida Bar (Model Rule 5.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules, statutes, and procedural rules before relying on any specific provision mentioned here, including the cited Section 56.36, Florida Statutes (1967), and Rule 1.560, Florida Rules of Civil Procedure.

Common questions

Q: Can a client read the lawyer's pre-written questions to a judgment debtor instead of the lawyer doing it?

A: Under this opinion, no. The committee said that even reading prepared questions would surrender the lawyer's personal conduct of the litigation to the client and could aid the unauthorized practice of law.

Q: Why isn't reading prepared questions treated as a routine, clerical act?

A: The committee reasoned that supplementary proceedings frequently raise matters like exemption claims and constitutional objections that a layman is not equipped to handle, so the task is not as routine as it appears.

Q: Did the opinion decide the unauthorized-practice question itself?

A: No. The committee said the unauthorized-practice issue was within the domain of the Committee on Unauthorized Practice; it addressed only the propriety of the lawyer's conduct under the former Canon 47.

Background and rules framework

The opinion applied the former Canon 47, which barred a lawyer from aiding the unauthorized practice of law. That subject is now addressed by Rule 4-5.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 5.5. The opinion arose under Section 56.36, Florida Statutes (1967), and Rule 1.560, Florida Rules of Civil Procedure, both governing proceedings supplementary to enforce a money judgment.

Citations and references

Rules of Professional Conduct:

• Canon 47 [Canons of Professional Ethics; aiding the unauthorized practice of law]
• Additional Rule 10

Statutes:

• Section 56.36, Florida Statutes (1967) [proceedings supplementary to execution]

Rules of Procedure:

• Rule 1.560, Florida Rules of Civil Procedure [discovery in aid of execution]

Other opinions cited:

• ABA Opinion 68 [lawyer furnishing letterhead for a corporate client's collection letters]

See also

• FL Bar Ethics Op. 67-39: Retired Out-of-State Lawyer as Office Manager
• FL Bar Ethics Op. 70-27: Lending Name for Client Collection Letters

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-27/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-27-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 67-27
October 20, 1967
Advisory ethics opinions are not binding.
An attorney representing a party enforcing a money judgment may not permit his client to conduct the interrogation at supplemental proceedings even if written questions are prepared in advance by the attorney.
Canons: 47, Additional Rule 10
Opinion: ABA Opinion 68
Statute: F.S. 56.36
Rule: Fla.R.Civ.P. 1.560
Chairman MacDonald stated the opinion of the committee:
A firm of Florida attorneys represents a lending institution which on recurring occasions has need for the enforcement of money judgments obtained against various defendants. The firm poses the following question with reference to the taking of depositions under Rule 1.560, Florida Rules of Civil Procedure, or supplementary proceedings under Section 56.36, Florida Statutes (1967):
We would appreciate the advice of your committee as to whether or not it would be proper, after a judgment has been obtained by this office, for our client to appear before a Court Reporter and inquire of the assets of the judgment debtor, using exclusively the written questions set forth under Par. 3.14 of Chapter 3 in Florida Civil Practice After Trial, with the understanding that any objections made by the judgment debtor to specific questions would be noted in the record by the reporter without insisting upon an answer at that time. Any contempt proceedings would be conducted by this office.
The notice of taking the deposition would be prepared, and all other proceedings before and after the deposition would be conducted by this office, and the judgment creditor would only perform a perfunctory act of asking the written questions indicated above.
It would appear at the very least that this inquiry raises a substantial question relating to the possible unauthorized practice of law by the plaintiff lending institution. That facet of the matter is necessarily one beyond the jurisdiction of this Committee, except to repeat our customary admonition that Canon 47 precludes any lawyer from aiding the unauthorized practice of law.
In this instance, however, we think that the proposal extends beyond the mere probability that it would aid in the unauthorized practice of law. In our judgment it would amount to the lawyer surrendering personal conduct of litigation to his client. Superficially, it might appear that the mere reading of questions would not serve to do this. However, upon reflection it is manifest that what is often deemed routine in the law frequently proves otherwise. For example, the claiming of exemptions, the offering of constitutional objections and other matters frequently encountered in supplementary proceedings, could lead to many complications under the proposal advanced. In a somewhat different context in which the Committee on Professional Ethics of the American Bar Association expressed the opinion that it was improper for an attorney to furnish his letterhead to a corporate client to write collection letters to delinquent debtors, we find appropriate language expressing our approach to the matter. Thus the Committee there said:
. . . A lawyer is an officer of the Court. As such, he assumes certain responsibilities, is under certain obligations and his conduct is subject to certain restrictions and limitations. A layman cannot be expected to know of these responsibilities and obligations of the lawyer or to conform to the restrictions and limitations surrounding his conduct. If it were proper for a lawyer to delegate his professional functions and allow laymen to write letters in his name, these restrictions and limitations, so far as they extend or apply to correspondence by a lawyer, would cease to be of any practical effect. (Opinion 68.)
Were the present practice to be sanctioned we see no reason why a lawyer could not permit the asking of simple oral questions in a routine vehicular automobile accident by an insurance adjuster, or to otherwise permit laymen to superintend the handling of litigated matters. We do not believe that any such departure from customary procedures is in the best interest of the profession.
We emphasize that we answer this question in the context of the handling by the corporate client of a portion of litigation originally assigned to the lawyer. We have not been confronted with and have not considered any questions relative to the propriety of laymen conducting the examination herein described in such cases, if any, in which it was otherwise proper for laymen to have handled the matter from the beginning. We recognize that the handling of matters particularly in courts of lesser jurisdiction by corporations is a matter not without controversy, but it is one exclusively within the domain of the Committee on Unauthorized Practice.