Can a lawyer give a corporation or a freelance nonlawyer a blanket letter of supervision to represent parties in North Carolina unemployment hearings?

Plain-English summary

North Carolina law (N.C. Gen. Stat. 96-17(b)) lets a nonlawyer represent a claimant or employer in an unemployment hearing if the nonlawyer is supervised by a North Carolina licensed lawyer, and it does not require the lawyer to attend the hearing. The opinion addresses who a lawyer may supervise and on what terms.

A lawyer may not agree to supervise a corporation or its employees in representing employers in these hearings. A business corporation may not practice law (N.C. Gen. Stat. 84-5), and Rule 5.5(d) prohibits a lawyer from assisting the unauthorized practice of law, so the lawyer may not provide a corporation a letter of supervision. The answer does not change if the entity is another form of business rather than a corporation.

A lawyer may provide a letter of supervision to an individual nonlawyer only if the lawyer will actually supervise that person in every hearing in which she appears. Although the statute does not require the lawyer to be physically present, it contemplates supervision, and Rule 5.3 requires a lawyer to supervise the conduct of any nonlawyer retained or associated with the lawyer. Appropriate supervision includes determining the nonlawyer's ability and knowledge before allowing her to appear without the lawyer and having specific knowledge of and providing oversight for each claim (RPC 216). A letter representing that a lawyer is supervising a nonlawyer must be truthful under Rule 7.1; if the lawyer will not supervise each individual hearing, the letter is a sham and the lawyer is assisting the unauthorized practice of law. The same answer applies to a request for a pre-signed letter with blank spaces the nonlawyer would fill in for each hearing.

In practice

Under the North Carolina rules as they stood at the time of the opinion, a lawyer may not supervise a corporation or other business entity representing employers in unemployment hearings, because the entity cannot practice law and the lawyer would be assisting the unauthorized practice of law (N.C. Gen. Stat. 84-5; Rule 5.5(d)).

Per the opinion, a lawyer may supervise an individual nonlawyer in these hearings only with appropriate supervision of each claim under Rule 5.3 (assessing the nonlawyer's ability and overseeing each matter, per RPC 216). A letter of supervision must be truthful (Rule 7.1); a blanket "for any and all hearings" letter or a pre-signed fill-in-the-blank letter that does not reflect actual supervision is a sham and assists the unauthorized practice of law.

Common questions

Q: Can a lawyer supervise a company whose employees represent employers in unemployment hearings?

A: No. The opinion concludes a business corporation may not practice law (N.C. Gen. Stat. 84-5), so a lawyer who provides a letter of supervision to the corporation or its employees would be assisting the unauthorized practice of law under Rule 5.5(d).

Q: Does it matter whether the business is a corporation or some other entity?

A: No. The opinion concludes the answer is the same for any business entity.

Q: Can a lawyer give a freelance nonlawyer a blanket letter of supervision for all future hearings?

A: Only if the lawyer will actually supervise each hearing. The opinion concludes that without appropriate supervision of each claim (Rule 5.3; RPC 216), the letter is a sham, is not truthful under Rule 7.1, and assists the unauthorized practice of law.

Q: Does the lawyer have to attend every unemployment hearing?

A: No. The opinion notes the statute does not require the lawyer to be physically present, but it does require appropriate supervision, including assessing the nonlawyer's ability and providing oversight for each claim.

Background and rules framework

The opinion applies North Carolina Rule 5.5(d) (assisting the unauthorized practice of law), Rule 5.3 (responsibilities regarding nonlawyer assistants), and Rule 7.1 (truthful communications). These are the North Carolina analogues of Model Rules 5.5, 5.3, and 7.1. It reads them together with N.C. Gen. Stat. 84-5 (a corporation may not practice law) and N.C. Gen. Stat. 96-17(b) (nonlawyer representation in unemployment hearings under lawyer supervision).

Citations and references

Rules of Professional Conduct:

• MR 5.5 / NC Rule 5.5(d) (assisting the unauthorized practice of law)
• MR 5.3 / NC Rule 5.3 (supervision of nonlawyer assistants)
• MR 7.1 / NC Rule 7.1 (truthful communications about a lawyer's services)

Statutes:

• N.C. Gen. Stat. 84-5 (prohibiting the practice of law by a corporation).
• N.C. Gen. Stat. 96-17(b) (nonlawyer representation in unemployment hearings under attorney supervision).

Other opinions cited:

• NC RPC 216: a lawyer may supervise a nonlawyer who is not an employee, but the lawyer is responsible for the work product.

See also

• ABA Formal Op. 506: Nonlawyer Assistants & Intake
• NC State Bar 2009 FEO 2: Responding to UPL
• NC State Bar 2012 FEO 11: Nonlawyer Field Reps

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2009-formal-ethics-opinion-10/

Original opinion text

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

Inquiry #1:

N.C. Gen. Stat. A796-17(b) allows a non-lawyer to represent employers in unemployment hearings provided the non-lawyer is supervised by a North Carolina licensed lawyer. The statute does not require the lawyer to be present at the unemployment hearing:

(b) Representation - Any claimant or employer who is a party to any proceeding before the [Employment Security] Commission may be represented by (i) an attorney; or (ii) any person who is supervised by an attorney; however, the attorney need not be present at any proceeding before the commission.

Attorney A is contacted by Corporation B, a business entity that would like to have its employees represent employers in unemployment hearings. As stated in a letter to Attorney A, Corporation B is looking for a lawyer to supervise the "corporation, its employees, and agents" in the representation of employers in unemployment hearings in North Carolina. May Attorney A accept and provide Corporation B with a letter of supervision that would indicate that Attorney A is supervising the corporation and its employees in the representation of employers in unemployment hearings?

Opinion #1:

No. N.C. Gen. Stat. A784-5 prohibits the practice of law by a business corporation. Rule 5.5(d) prohibits a lawyer from assisting in the unauthorized practice of law. Attorney A may not agree to supervise Corporation B or its employees and may not provide a letter of supervision to Corporation B.

Inquiry #2:

If Corporation B were not a corporation but another form of business entity, would the answer to Inquiry #1 change?

Opinion #2:

No.

Inquiry #3:

Attorney A is contacted by C, a nonlawyer who would like to act as a claimant's or an employer's representative pursuant to N.C. Gen. Stat. A796-17(b). C asks Attorney A to give her a letter of supervision "for any and all unemployment hearings." The requested letter would not be limited to a specific pending unemployment claim, but would be used for any claim upon which C might represent a claimant or an employer in the future. On a periodic basis, C would provide Attorney A with a list of claims upon which she provided representation.

May Attorney A provide the letter of supervision to C?

Opinion #3:

Unless Attorney A will provide appropriate supervision to C in every unemployment hearing in which she appears, Attorney A may not provide the letter of supervision.

Although N.C. Gen. Stat. A796-17(b) does not require the lawyer to be physically present at a hearing, it contemplates that a lawyer will supervise a nonlawyer representative. Moreover, Rule 5.3 requires a lawyer to supervise the conduct of any nonlawyer who is retained or associated with the lawyer. Therefore, the lawyer must provide appropriate supervision under the circumstances. See RPC 216 (lawyer may supervise nonlawyer who is not employee, but lawyer is responsible for work product). Appropriate supervision would include determining the ability and knowledge of the nonlawyer before agreeing that the nonlawyer may appear at a hearing without the lawyer. Tt would also require the lawyer to have specific knowledge of and provide oversight for each claim to be handled by the nonlawyer.

A "letter of supervision" that represents that a lawyer is supervising a nonlawyer must be a truthful communication as required by Rule 7.1. If Attorney A is not going to supervise C with regard to each individual unemployment hearing, then the letter is a sham and Attorney A is assisting C in the unauthorized practice of law.

Inquiry #4:

C asks Attorney A to prepare and sign a letter of representation for C with blank spaces so that C may fill in the blanks with the identifying information for each hearing in which she represents an employer. May Attorney A provide such a letter?

Opinion #4:

See Opinion #3.