Could Nebraska lawyers operate a paid telephone service in which law students advised callers about legal rights and possible action?

Plain-English summary

A law firm proposed a pay-per-call telephone department staffed by law students. For a per-minute charge, the students would discuss callers' problems, identify possible laws and legal proceedings, recommend options such as small-claims court, and arrange attorney follow-up when a caller wanted a legal opinion.

Nebraska law and court rules limited the practice of law to admitted lawyers, subject to a supervised-practice framework for approved senior students. The committee found that this proposal did not fit that framework.

The opinion treated advice about a person's legal rights and appropriate actions as practicing law. It noted that compensation was not necessary for conduct to constitute unauthorized practice.

Because the students were not admitted lawyers, they could not provide the proposed advice. DR 3-101(A) also prohibited lawyers from aiding nonlawyers in unauthorized practice, so the firm could not hire and encourage students to perform that work.

Those findings resolved the proposal. The committee therefore did not decide its other fee, bonus, solicitation, confidentiality, or conflict questions, although it said the venture raised substantial concerns in those areas.

Currency note

This opinion was issued in 1994, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. The 2005 adoption date is stated in Nebraska Ethics Advisory Opinion 06-12.

Common questions

Q: Was the service permissible if students gave information rather than calling it legal advice?

A: No. The committee focused on what the students would do: advise callers about legal rights and appropriate action.

Q: Did charging a fee determine whether the students practiced law?

A: No. The opinion cited Nebraska authority stating that unlicensed practice can occur even without compensation.

Q: Did Nebraska permit any practice by law students?

A: Yes, through a limited approved-senior-student framework, but the committee said this proposal did not fit it.

Q: Would the lawyers running the service also violate the ethics code?

A: Yes. The opinion concluded that they would assist and encourage unauthorized practice in violation of DR 3-101.

Background and rules framework

The opinion applied Nebraska admission requirements and the former Code's rule barring a lawyer from aiding a nonlawyer in unauthorized practice. It used Nebraska cases defining legal practice to include advice about legal rights.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 3-101(A) and EC 3-1

Nebraska authority:

• Neb. Rev. Stat. §§ 7-101 and 7-101.01 (Reissue 1991)
• Nebraska Rules of Admission 1-15
• State ex rel. Hunter v. Kirk, 133 Neb. 625, 276 N.W.2d 380 (1937)
• State v. Barlow, 131 Neb. 294, 268 N.W. 95 (1936)

See also

• Oregon Ethics Op. 2005-107: General legal-information recordings
• Virginia Ethics Op. 1792: Training nonlawyers to assist self-represented litigants

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 94-2

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 94-2

NON-LAWYERS MAY NOT, THROUGH A "900" NUMBER TELEPHONE SERVICE, PROVIDE LEGAL ADVICE TO THE PUBLIC. ATTORNEYS ENCOURAGING SUCH AN ENTERPRISE WOULD BE IN VIOLATION OF DR 3-101, WHICH PROHIBITS A LAWYER FROM AIDING A NONLAWYER IN THE PRACTICE OF LAW

FACTS

A law firm wishes to establish a pay-per-call "900" number telephone department under the following proposal to be staffed by law students:

"PROPOSAL
This is a proposal to add a pay per call telephone department to the firm. The department will be managed by myself and will employ law students to answer calls from the public. The following paragraphs provide an overview of how the department will operate.
Operation
A telephone marketing department will be added to the firm. This department will run a pay per call service that answers calls from the public. The service will be staffed by law clerks. The goal of the service is not to provide specific legal advice, but to provide the caller with information necessary for them to decide whether or not legal action is their best alternative.
For example, if the caller describes a problem with their new automobile, then the clerk may suggest contacting the dealer or factory representative in an attempt to resolve the problem amicably. The clerk will inform the caller that a lemon law may be applicable and legal action might be a viable option. If the caller wants a legal opinion, then the service will have a firm attorney contact them.
The service will assist the caller in understanding their alternatives. For example, if the issue involves a small amount of money, then small claims court might be recommended as the most cost effective alternative.
There will be a fee collected by offering the service through a 900 telephone number. For example, at a cost of $1.00 for the first minute and $.50 for each minute thereafter. At this rate, a ten minute call would cost the caller $5.50. The service will provide a very cost efficient method for the caller to assess their options and what actions might be appropriate.
Clerks working for the service will be paid hourly. Along with their phone department responsibilities, the clerks will provide typical clerking services. The clerk directing the phone service will receive incentive bonuses based on the amount of total net revenues generated by the service."

QUESTIONS PRESENTED

(1) Does the proposed constitute the provision of legal advice by a non-lawyer to the public which constitues the practice of law?

(2) Is it permissible for a non-lawyer to provide legal advice to the public?

(3) Is it permissible for a lawyer to aid a non-lawyer in the unauthorized practice of law?

(4) Is it permissible for a non-lawyer to receive a portion of the fees collected for legal services provided by non-lawyers as well as lawyers?

(5) It is permissible for a non-lawyer to receive financial incentives and bonuses based upon revenue generated when he supervises law students who are giving legal advice for a fee and who are soliciting clients for attorneys for the firm which employs them?

DISCUSSION

Non-lawyers may not practice law in the State of Nebraska. The Revised Rules of the Supreme Court/Court of Appeals of the State of Nebraska clearly provide that in order to be authorized to practice law in the state, an applicant must have passed the Nebraska State Bar Examination, an equivalent examination, the bar examination of another state, or have been licensed to practice law in another state. See Neb. Rules of Court, Rules of Admission 1-15.

Additionally, Neb. Rev. Stat. § 7-101 (Reissue 1991) provides, in relevant part:

[N]o person shall practice as an attorney or counselor at law, or commence, conduct or defend any action or proceeding to which he is not a party. . . . unless he has been previously admitted to the bar by order of the Supreme Court of this state. * * * Any person who shall violate any of the provisions of this section shall be guilty of a Class III misdemeanor. . . .

While Neb. Rev. Stat. § 7.101.01 (Reissue 1991) does provide for limited practice by senior law students, pursuant to "Rule of Legal Practice by Approved Senior Students" at Rules of Practice and Procedure, Page 16.1 promulgated by the Nebraska Supreme Court, the proposal does not fit within that framework.

Black's Law Dictionary defines the practice of law as "[t]he rendition of services requiring the knowledge and the application of legal principles and techniques to serve the interests of another with his consent. * * * It embraces all advice to clients and all actions taken for them in matters connected with the law." Black's Law Dictionary 1055 (5th ed. 1979).

Such a definition is in accord with the Nebraska Supreme Court which, in reference to § 7-101, has held that the giving of advice to persons as to their legal rights constitutes practicing law. See State ex rel. Hunter v. Kirk, 133 Neb. 625, 276 N.W.2d 380 (1937). The Supreme Court has also held that one may be guilty of the practice of law without a license notwithstanding that he receives no fee for the service performed. State v. Barlow, 131 Neb. 294, 268 N.W. 95 (1936).

It is clear from the facts set out above that the giving of advice to callers as to their legal rights and actions appropriate thereto would constitute practicing law. As the law students manning the telephone lines would not, by definition, be members of the Nebraska State Bar Association or have passed the bar of any other state which would qualify them to practice law in Nebraska, such conduct would not only be prohibited by the Rules of the Nebraska Supreme Court and the Nebraska Court of Appeals, but would be punishable criminally.

Furthermore, Disciplinary Rule 3-101 provides, in relevant part:

(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

In conjunction with Rule 3-101, EC 3-1 sheds additional light on the subject:

The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services'.
Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession.

Not only would law students therefore be precluded from practicing law under the auspices of the proposed "900" phone services, but the attorneys assisting and encouraging such practice would be in violation of the standards of the Code of Professional Responsibility.

CONCLUSION

As the findings set out above go to the nucleus of the proposed enterprise, it is not necessary for this Committee to discuss the other questionable facets of such a venture. Law students are not qualified to dispense legal advice to the public as they would be acting in the capacity of lawyers without being members of the bar. Moreover, a law firm hiring law students for that purpose would be encouraging this unethical and illegal practice and be in violation of the Code of Professional Responsibility itself.

Suffice it to say that an endeavor of this nature would also raise substantial questions concerning solicitation, confidentiality, and conflicts of interest.

Nebraska Ethics Advisory Opinion for Lawyers No. 94-2