In Kentucky, may a lawyer delegate the task of taking a deposition to a non-admitted law school graduate or other lay assistant?

Plain-English summary

The Committee was asked whether a lawyer may delegate the task of taking depositions to a non-admitted law school graduate or other lay assistant. It answered "No."

The opinion observed that lawyers have attempted such delegation on the erroneous assumption that "anything goes" outside of court, and concluded that the delegation is not proper. It cited Rules 1.1, 1.2, and 1.3 (the counterparts to former DR 6-101(A)(3) and DR 7-101(A)(3) relied on in KBA E-251) and explained that the delegation also runs afoul of SCR 3.020 (unauthorized practice of law), a rule that is not limited to practice in the courtroom.

Currency note

This opinion was issued in 1990, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes the rules are amended periodically. 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 Treat this page as historical context, not current guidance.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 before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a non-admitted law school graduate take a deposition for a lawyer?

A: No. The opinion concluded such delegation is improper under Rules 1.1, 1.2, and 1.3 and constitutes the unauthorized practice of law under SCR 3.020.

Q: Does it matter that a deposition happens outside the courtroom?

A: No. The opinion rejected the assumption that "anything goes" outside court and noted SCR 3.020 is not limited to courtroom practice.

Background and rules framework

The opinion interprets KRPC 1.1 (competence), 1.2 (scope of representation), and 1.3 (diligence) (Model Rules 1.1, 1.2, 1.3), the counterparts to former DR 6-101(A)(3) and DR 7-101(A)(3), together with SCR 3.020 (unauthorized practice of law), to conclude that taking a deposition is lawyer's work that cannot be delegated to a non-lawyer.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / KRPC 1.1 (competence)
• MR 1.2 / KRPC 1.2 (scope of representation)
• MR 1.3 / KRPC 1.3 (diligence)

Court rules:

• SCR 3.020 (unauthorized practice of law; not limited to courtroom practice)

Other opinions cited:

• KBA E-251 (1981); Oregon Op. 449 (1980); New York County Op. 666 (1985)

See also

• KBA Ethics Op. E-345: Pro Hac Vice & Lay Reps
• AL Ethics Op. 2002-01: Nonlawyers Switching Firms
• AL Ethics Op. 1986-52: In-House Counsel & UPL

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-341.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-341
Issued: November 1990

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer delegate the task of taking depositions to a non-admitted law school graduate or other lay assistant?

Answer:

No.

References:

KBA E-251 (1981); Oregon Op. 449 (1980); New York County Op. 666 (1985). OPINION

From time to time lawyers have attempted such delegation on the erroneous assumption that anything goes "outside of court." Such delegation is not proper. See Rules 1.1, 1.2, and 1.3 (counterparts to DRs 6-101(A)(3) and 7-101(A)(3), cited in E-251. Such delegation also runs afoul of SCR 3.020 (Unauthorized Practice of Law), a Rule that is not limited to practice in the courtroom.
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Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.