What tasks can a lawyer delegate to nonlawyer staff in a law office?

Plain-English summary

A firm asked about using lay personnel in two areas. In real estate, after the contract was signed, a lay specialist would gather preliminary data (ordering abstracts and surveys, checking internal files, obtaining payoff figures), the responsible attorney would examine the abstract and dictate the title opinion or binder, the lay assistant would prepare closing statements and notify parties, the attorney would close, and the lay assistant would then handle recording and disbursements. In probate and litigation, lay personnel would prepare estate forms, accountings, and tax returns, gather facts, index depositions, prepare interrogatories and witness schedules, summarize facts, and interview witnesses, with all work reviewed and approved by a responsible attorney.

The committee basically approved the real estate proposal, with the sole reservation that the attorney should never leave to lay staff matters calling for an attorney's expertise (for example, lay staff preparing routine closing documents should not draw complicated escrow agreements or collateral contracts), citing Canon 3 and EC 3-5 and 3-6. It approved the probate and litigation use under Canon 3 as well, encouraging delegation of mechanical, clerical, and administrative duties but holding that the attorney may not delegate activities requiring his own judgment and participation. It gave only qualified approval to the second part, preferring to judge specific cases, and expressed reservations about authorizing lay personnel to prepare interrogatories and interview all witnesses in every case, noting that what is permissible in a run-of-the-mill case may not be in complicated matters.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied Canon 3 and EC 3-5 and 3-6 of the former Code of Professional Responsibility, the subject matter of which is now addressed by Rule 4-5.3 (supervision of nonlawyer assistants) and Rule 4-5.5 (unlicensed practice of law). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: What work can a lawyer delegate to a paralegal or other lay staff?

A: Under this opinion, mechanical, clerical, and administrative duties. The committee encouraged such delegation but barred delegating any activity requiring the lawyer's own judgment and participation.

Q: Can lay staff handle a real estate closing file?

A: The opinion approved using lay staff to gather data and prepare routine closing documents subject to attorney review, but said they should not draw complicated escrow agreements or collateral contracts.

Q: Can lay staff prepare interrogatories or interview witnesses?

A: The committee gave only qualified approval and reserved judgment, noting that what is acceptable in a routine case may not be in complicated or unusual matters.

Background and rules framework

The opinion applied Canon 3 and EC 3-5 and 3-6 of the former Code of Professional Responsibility, governing the delegation of work to lay personnel and the avoidance of assisting the unauthorized practice of law. That subject matter is now addressed by Rule 4-5.3 (responsibilities regarding nonlawyer assistants) and Rule 4-5.5 (unlicensed practice of law). The Model Rule analogues are Rules 5.3 and 5.5.

Citations and references

Rules of Professional Conduct:

• Canon 3; EC 3-5, 3-6 [Code of Professional Responsibility; subject matter now in Rules 4-5.3 and 4-5.5]

See also

• FL Bar Ethics Op. 07-2: Overseas Legal Outsourcing
• FL Bar Ethics Op. 12-2: Nonlawyer Use of E-Portal Credentials
• FL Bar Ethics Op. 72-21: "General Legal Services" Through a Lay Intermediary

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-62/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-62-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-62
February 12, 1971
Advisory ethics opinions are not binding.
Lay personnel may be used in a law office only to the extent that they are delegated mechanical, clerical or administrative duties. The attorney may not ethically delegate to a lay employee any activity which requires the attorney's personal judgment and participation.
Canon: 3
CPR: EC 3-5, 3-6
Chairman Massey stated the opinion of the committee:
Inquiry is made pertaining to the use of lay personnel within a law office. The opinion will be divided into two parts.
The first portion is quoted from the inquiry as follows:
We anticipate using the lay person in the real estate field to handle the following matters:
1. After the contract between the parties has been executed and a file set up by the attorney's secretary, the file will be delivered to the lay specialist who will obtain all preliminary data. This would include location and ordering of abstracts and survey where appropriate, checking our internal files to determine if a prior opinion or title policy has been issued by our firm on said property, obtaining pay-off or assumption figures on existing mortgages and liens and, in general, gathering all necessary data involving said transaction.
2. We envision that after the contract stage the next time the file would come back to the attorney would be after the abstract continuation, surveys, and all necessary data has been compiled. The lay assistant would then forward the file back to the responsible attorney with all such data included. The responsible attorney would then examine the abstract and dictate either an Opinion of Title or title binder based on his examination. The file would then go back to the lay assistant who would, following the directives of the attorney, prepare closing statements, and notify all parties of the scheduled closing.
3. All work and documents prepared by the lay assistant would be forwarded back to the responsible attorney at some predetermined time prior to the closing for the attorney's review and approval.
4. The attorney closes the real estate transaction.
5. After the closing the attorney forwards a file back to the lay assistant with appropriate directives as to the recording of documents, pay off of any liens, and disbursements of expenses not disbursed during the closing.
The Committee basically approves the proposal as outlined in the inquiry finding that there is no ethical problem. The sole reservation to be expressed by the Committee is that the attorney should at no time leave to the lay employee those matters calling for the expertise of an attorney. For example, if lay personnel prepare all closing documents, such lay personnel should not be allowed to draw complicated escrow agreements or other collateral contracts. See Canon 3 and ethical considerations thereunder (EC 3-5 and 3-6).
The second part of the inquiry is not quite as easy to answer. It asks of the propriety of:
. . . In the probate field we propose the utilization of lay personnel to prepare estate forms, accountings, tax returns, obtain necessary facts from outside sources for preparation of such estate pleadings, and perform other duties of this nature. In the litigation field we propose utilization of lay personnel to index depositions, prepare interrogatories, prepare schedules of witnesses to be deposed, schedules of witnesses necessary for trial, summarize facts, interview witnesses, and other such related matters. We propose that all work done by a lay person in our office shall be reviewed and approved by a responsible attorney before any item either goes to the files or outside of the office as a completed item of work.
These plans are similar to the proposal as to real estate transactions but not as detailed. Again, the Committee does recognize and approve the use of lay personnel in probate and litigation under the appropriate considerations of Canon 3. Delegation to lay employees of the mechanical, clerical and administrative duties is encouraged. However, the attorney may not ethically delegate an activity in which he personally should give his judgment and participation.
While generally approving the concept stated in this second part of the inquiry, the Committee gives it but a qualified approval as the Committee would prefer to determine such matters on specific factual cases. This is true because the Committee does have reservations as to authorizing lay personnel to prepare interrogatories and to interview all witnesses in every case. What may be permissible in a "run-of-the-mill" case may not be so in complicated, unusual matters.