Does a certified legal intern need the client's written consent before representing the client on appeal?

Plain-English summary

A public defender asked whether an intern, properly certified and supervised under Article XVIII of the Florida Integration Rule, must obtain the appellant's written consent before representing him on appeal. The committee treated the inquiry as within its province because conduct outside what Article XVIII authorizes could violate DR 3-101(A) (aiding the unauthorized practice of law).

The committee concluded that for an intern to perform the functions authorized by Article XVIII, at either the trial or appellate level, written consent must first be secured. It found it proper and effective for the initial trial-level consent to include consent for continued representation on appeal should appellate proceedings follow. If consent was not obtained that way at the trial level, or no intern consent was secured at trial, the appellant's written consent must be secured before the intern may represent him on appeal.

The committee drew a distinction between representation authorized only by Article XVIII and the work that non-admittees qualified by education or experience (such as law students serving as law clerks or research aides) may perform under an attorney's supervision. It concluded that, while an intern may not prepare and sign briefs or present oral argument without the required written consent, there is no impropriety in the intern's performing research and drafting in aid of and under the supervision of the employing attorney before that consent is secured.

Currency note

This opinion was issued in 1980, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does a certified legal intern need written consent to handle an appeal?

A: The opinion concluded the intern must obtain the client's written consent before representing the client on appeal.

Q: Can trial-level consent cover the appeal?

A: The opinion concluded the initial trial-level consent may be drafted to include consent for continued representation on appeal if appellate proceedings follow.

Q: What can an intern do without that consent?

A: The opinion concluded that, without the required consent, an intern may not prepare and sign briefs or present oral argument, but may do research and drafting under the supervision of the employing attorney.

Background and rules framework

The opinion interprets CPR DR 3-101(A) on aiding the unauthorized practice of law in the context of Article XVIII of the Florida Integration Rule, which authorized certified legal interns. The analysis corresponds to Model Rule 5.5 (unauthorized practice) and to the allocation of authority and client consent reflected in Model Rule 1.2.

Citations and references

Rules of Professional Conduct:

• CPR DR 3-101(A) (Model Rule 5.5, unauthorized practice of law)
• Florida Integration Rule, Article XVIII (certified legal interns)

See also

• FL Bar Ethics Op. 89-5: Paralegal Conducting a Real Estate Closing
• FL Bar Ethics Op. 88-6: Nonlawyer Conducting Initial Client Interview

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-80-6/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-80-6-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 80-6
March 26, 1980
Advisory ethics opinions are not binding.

An intern at a public defender's office, properly certified under Article XVIII of the Florida Integration Rule, must obtain a client's written consent before the intern can represent him on appeal.

CPR: DR 3-101(A)
Integration Rule: Article XVIII

Vice Chairman Ervin stated the opinion of the committee:

The inquiring attorney, a public defender, submits the following inquiry in request for a formal opinion of the Committee.

Must an intern, properly certified and supervised under Article XVIII of the Florida Integration Rule, obtain the appellant's written consent before the intern can represent him on appeal?

The inquiry is within the province of this Committee in that conduct of the inquiring attorney other than as authorized by Article XVIII could result in violation of DR 3-101(A).

The Committee is of the opinion that in order for an intern to perform the functions authorized by Article XVIII at either the trial or appellate level, written consent must first be secured. It would appear proper and effective, however, for the initial consent for representation at the trial level to include consent for continued representation at the appellate level should appellate proceedings follow. If such a procedure has not been followed in securing consent at the trial level, or if no intern consent was secured at the trial level, then the Committee is of the opinion that the appellant's written consent must be secured before the intern may represent him at the appellate level.

There is, however, a distinction between that representation authorized only by Article XVIII and those activities which non-admittees qualified by education and/or experience (i.e., law students and others serving as law clerks or research aides to an attorney) may properly perform under the supervision of an attorney. In this respect, it is the opinion of the Committee that while an intern may neither prepare and sign briefs nor present oral argument absent the requisite written consent, there would be no impropriety in his performance of research and drafting functions in aid of, and under the supervision of, the employing attorney prior to securing of the specific written consent.