Can a lawyer let a legal assistant decide whether to take a case and represent the client in an administrative proceeding that allows nonlawyer advocates?

Plain-English summary

The opinion addressed a general-practice lawyer who planned to hire a legal assistant to screen prospective clients for conflicts, gather preliminary information, and handle administrative agency proceedings where nonlawyer participation is authorized by statute. The lawyer asked whether the legal assistant could decide whether to take a case and perform the work under general supervision, or whether the lawyer had to become substantively involved, reviewing the assistant's work product and controlling strategy.

The Committee analyzed the question under MRPC 5.3 and 5.5. MRPC 5.3 requires a lawyer with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's professional obligations, and the comment makes the lawyer responsible for the assistant's work product. MRPC 5.5(b) bars assisting unauthorized practice, but its comment allows delegating functions to paraprofessionals so long as the lawyer supervises and retains responsibility. Citing State Bar v. Galloway, the Committee noted that nonlawyer representation in state administrative proceedings is not unauthorized practice where, as with MESC cases under MCL 421.31, there is explicit statutory authorization.

The Committee concluded that, because the lawyer is responsible for the firm's employees, the lawyer (not the legal assistant) must decide which cases and clients the firm accepts, exercising independent professional judgment about complexity and whether elements go beyond what the assistant may handle. The lawyer must expressly disclose and explain to the client that the legal assistant will appear not as a lawyer but only as an advocate allowed by law (MRPC 1.2, 1.4), must make reasonable efforts under MRPC 5.3 to ensure the assistant's conduct complies with the rules, and remains responsible for the assistant's work product and general supervision. If, after that disclosure, the client consents to representation by the legal assistant and the MRPC 5.3 and 5.5 obligations are met, the assistant may be assigned to perform the services.

Currency note

This opinion was issued in 1992 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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, statute, deadline, or requirement mentioned here.

Common questions

Q: Can a legal assistant represent a client in an administrative hearing?

A: Per the opinion, yes, where a statute authorizes nonlawyer representation (as MCL 421.31 does for MESC proceedings); doing so is not the unauthorized practice of law.

Q: Can the legal assistant decide whether the firm takes the case?

A: No. The opinion concluded that decisions about which cases and clients to accept must be made by the supervising lawyer exercising independent professional judgment, not by the legal assistant.

Q: What must the lawyer tell the client?

A: The opinion concluded the lawyer must expressly disclose and explain that the legal assistant will appear not as a lawyer but only as an advocate allowed by law, and obtain the client's consent after consultation.

Background and rules framework

The opinion interprets MRPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistants), MRPC 5.5 / Model Rule 5.5 (unauthorized practice and permissible delegation), MRPC 5.4 / Model Rule 5.4 (professional independence), and MRPC 1.2 and 1.4 / Model Rules 1.2 and 1.4 (scope of representation and client communication). It applies MCL 421.31 and follows RI-103 and R-1.

Citations and references

Rules of Professional Conduct:

• MRPC 5.3 / Model Rule 5.3 (supervision of nonlawyers)
• MRPC 5.5 / Model Rule 5.5 (unauthorized practice; delegation)
• MRPC 5.4 / Model Rule 5.4 (professional independence)
• MRPC 1.2, 1.4 / Model Rules 1.2, 1.4 (scope; communication)

Statutes:

• MCL 421.31 (nonlawyer representation before the MESC)

Other opinions cited:

• RI-103 (confidentiality of an advocate's non-merit statement)

Cases:

• State Bar v. Galloway, 422 Mich 188 (1985), nonlawyer representation authorized by statute is not unauthorized practice

See also

• Mich Ethics Op. RI-103: Confidentiality of an Advocate's Non-Merit Statement
• Mich Ethics Op. C-239: Hearing Officers and Unauthorized Practice
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=995&Type=6

Original opinion text

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

RI-125

April 17, 1992

SYLLABUS

A legal assistant in the employ of a lawyer may, in the course of employment with the lawyer, appear and act as an advocate for a party in administrative agency proceedings as authorized by law.

A lawyer, whose legal assistant in the course of employment with such lawyer acts as an advocate for a party in administrative proceedings, is responsible for ensuring that the conduct of the legal assistant is compatible with the Rules of Professional Conduct.

A lawyer whose legal assistant acts as an advocate in administrative agency proceedings is responsible for the actions as well as the work product of the legal assistant.

References: MRPC 1.2, 1.4, 5.3, 5.4, 5.5; RI-103; MCL 421.31; State Bar v. Galloway, 422 Mich 188 (1985).

TEXT

A lawyer in general practice is considering hiring a legal assistant whose duties would include screening prospective clients for conflicts of interest, collecting preliminary information about new clients, and handling administrative agency proceedings on behalf of the clients where such nonlawyer participation has been authorized by statute.

The lawyer asks: If a client is a claimant in an administrative agency proceeding which allows nonlawyer representatives to appear on behalf of claimants, may the legal assistant decide whether to take the case and perform the required services as long as the lawyer generally supervises the legal assistant's duties, or must the lawyer become substantively involved in the client's case, reviewing the work product of the legal assistant and controlling strategy and tactics regarding the administrative matter the legal assistant will be handling?

Any inquiry raised concerning the activities of legal assistants or paralegals operating under the supervision of licensed lawyers must be considered with MRPC 5.3 and 5.5. MRPC 5.3 (a) and (b) state:

"With respect to a nonlawyer employed by, retained by, or associated with a lawyer:

"(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

"(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer . . . ."

The comment to MRPC 5.3 states:

"Lawyers generally employ assistants in their practice . . . such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment . . . and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline."

MRPC 5.5(b) states that a lawyer shall not assist a person who is not a member of the State Bar in the performance of activity that constitutes the unauthorized practice of law. The Comment following MRPC 5.5 specifies that MRPC 5.5(b) does not prohibit a lawyer from employing the services of para-professionals and delegating functions to them, so long as the lawyer supervises and retains responsibility for the delegated work. See also, R-1.

In State Bar v. Galloway, 422 Mich 188 (1985), the court held that it is not unauthorized practice of law for nonlawyers to represent persons in proceedings of state administrative agencies if there is explicit statutory authorization for the nonlawyer participation. In MESC cases, the court held that MCL 421.31 was "explicit statutory authority." Thus, a legal assistant would not be engaging in the unauthorized practice of law when handling administrative agency proceedings on behalf of the client where such nonlawyer participation has been authorized by statute as in MESC proceedings.

A prospective client who seeks assistance by contacting a lawyer's office may not be sufficiently knowledgeable to determine whether the services required should be performed by a lawyer or may be competently and legally delivered by a nonlawyer legal assistant. Legal assistants are not subject to state licensure, nor are they subject to the requirements and regulations imposed upon lawyers. Furthermore, a nonlawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of lawyers. Given the parameters set forth in MRPC 5.3 and 5.5, it is clear that a lawyer is ultimately responsible for and therefore, must supervise the legal assistant's performance of duties carried out in connection with providing services to the client.

Since the lawyer is responsible for the employees of the firm, the lawyer is responsible for determining what cases and clients will be accepted by the firm. Substantive decisions concerning whether representation may be ethically undertaken, and business decisions concerning workload, allocation of firm resources, and capabilities of legal assistant employees available for assignment to the prospective client's case, must be made by the lawyer, not the legal assistant. The lawyer must exercise independent professional judgment regarding the complexity of the matter, determine whether there are elements which go beyond the administrative representation that the legal assistant may not be asked to handle, and counsel and communicate with the client regarding the legal assistant's role in the matter. MRPC 1.2(a) and (b), 1.4, 5.4.

Therefore, if the legal assistant is to perform the required services and appear as an advocate at the administrative agency proceeding which allows nonlawyer representatives, the lawyer who supervises the legal assistant must expressly disclose and explain to the client that the legal assistant will not be appearing as a lawyer but only as an advocate as allowed by law. MRPC 1.2, 1.4; RI-103. Furthermore, as required by MRPC 5.3, the lawyer shall make reasonable efforts to ensure that the legal assistant's conduct in representing the client in the administrative proceeding is compatible with the rules of professional conduct and, because the representation arises out of the legal assistant's employment at the law firm, the legal assistant is bound by the rules. Finally, as under MRPC 5.3, the lawyer is responsible for the legal assistant's work product and the lawyer is obligated to generally supervise the legal assistant's activities related to the representation of the client in the agency proceeding.

If after the appropriate disclosure, the client understands and consents to representation by the legal assistant after consultation with the lawyer, and the other obligations pursuant to MRPC 5.3 and 5.5 are met, then the legal assistant may be assigned to perform the required services in representing the client in the administrative proceeding.