Can a lawyer let a legal assistant or paralegal examine a witness at a deposition, or appear for a client or witness being deposed by opposing counsel?

Plain-English summary

The inquiry asked, in three variations, whether a lawyer could permit a legal assistant to examine a witness at a deposition, to appear for a witness being deposed by opposing counsel, or to appear for a client being deposed by opposing counsel where the assistant was instructed only to keep the examination within subject matters agreed in advance.

The opinion answered no to all three. It explained that under Rule 3.3(b) a lawyer with direct supervisory authority over a nonlawyer must make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's professional obligations. While earlier opinions allowed a legal assistant to handle certain matters, such as negotiating with a claims adjuster, they required direct supervision by the lawyer, citing RPC 70, RPC 139, and RPC 152, and RPC 70 cautioned that under no circumstances should a legal assistant exercise independent legal judgment. The opinion reasoned that a deposition requires the lawyer to exercise independent legal judgment, experience, and skill from moment to moment, formulating questions in response to the witness, considering objections, and analyzing any privilege the witness may assert. Allowing a legal assistant to examine a witness at a deposition aids the unauthorized practice of law in violation of Rule 3.1(a), may cause substantial harm to the client's case, and is improper. The second and third inquiries were answered the same way by reference to the first.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: Can a paralegal take a witness's deposition under a lawyer's supervision?

A: No. The opinion concluded that conducting a deposition requires the lawyer's own independent legal judgment from moment to moment, so delegating the examination to a legal assistant aids the unauthorized practice of law under Rule 3.1(a).

Q: Why is a deposition different from tasks paralegals are allowed to do?

A: Because of the judgment it requires. The opinion noted that earlier opinions let a legal assistant handle matters like negotiating with a claims adjuster under supervision, but RPC 70 barred a legal assistant from ever exercising independent legal judgment, which a deposition demands.

Q: Does limiting the assistant to policing the scope of questioning cure the problem?

A: No. The opinion answered that variation the same way, holding the lawyer may not let a legal assistant appear for a client being deposed even if instructed only to keep questioning within agreed subject matters.

Background and rules framework

The opinion applied North Carolina's then-current Rule 3.3(b), corresponding to Model Rule 5.3, which requires a lawyer to ensure that supervised nonlawyer conduct is compatible with the lawyer's professional obligations, and Rule 3.1(a), corresponding to Model Rule 5.5, which prohibits aiding the unauthorized practice of law. It read its earlier opinions RPC 70, RPC 139, and RPC 152 as permitting supervised nonlawyer tasks only where the nonlawyer does not exercise independent legal judgment.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding nonlawyer assistants)
• MR 5.5 (unauthorized practice of law)
• North Carolina Rule 3.3(b); Rule 3.1(a)

Other opinions cited:

• North Carolina RPC 70 (legal assistant may not exercise independent legal judgment)
• North Carolina RPC 139 (supervised nonlawyer tasks)
• North Carolina RPC 152 (supervised nonlawyer tasks)

See also

• NC Ethics Op. RPC 189: DA's nonlawyer staff advising unrepresented traffic defendants
• NC Ethics Op. 2007 FEO 3: unauthorized practice at a quasi-judicial hearing
• NC Ethics Op. 2009 FEO 10: supervising a nonlawyer in unemployment hearings

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-183/

Original opinion text

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

Inquiry #1:

Is it ethical for a lawyer to permit a legal assistant to examine a witness at a deposition?

Opinion #1:

No. Pursuant to Rule 3.3(b) of the Rules of Professional Conduct, a lawyer having direct supervisory authority over a nonlawyer employed by a law firm must make reasonable efforts to ensure that the nonlawyer's conduct is "compatible with the professional obligations of the lawyer." Although several ethics opinions have indicated that a legal assistant or paralegal may undertake to handle certain matters such as negotiating with a claims adjuster, the opinions have all required that the legal assistant be directly supervised by the lawyer. See RPC 70, RPC 139, and RPC 152. In RPC 70, it is noted that "[u]nder no circumstances should the legal assistant be permitted to exercise independent legal judgment...." In a deposition, a lawyer is required to exercise her independent legal judgment, experience, and skill from moment to moment as she formulates questions in response to the statements made by the witness, considers objections to be made to questions, and analyzes any privilege the witness may assert. Allowing a legal assistant to examine a witness at a deposition is aiding the unauthorized practice of law in violation of Rule 3.1(a), may cause substantial harm to the client's case, and is improper.

Inquiry #2:

Is it ethical for a lawyer to permit a legal assistant to represent a witness at a deposition who is being deposed by the opposing counsel?

Opinion #2:

No. See Opinion #1.

Inquiry #3:

Is it ethical for a lawyer to permit a legal assistant to represent a client who is being deposed by an opposing counsel if the legal assistant is carefully instructed in advance that his or her sole role is to ensure that the opposing counsel's examination does not go beyond specific subject matters agreed upon in advance by the lawyer and the opposing counsel?

Opinion #3:

No. See Opinion #1.