What are a lawyer's duties when supervising paralegals and other nonlawyer staff who deal with clients and the public, and how may those staff be paid?

Plain-English summary

Updating its 1974 paralegal opinion (N.Y. City 884) for the growth of the paralegal field, the committee set out the ethical responsibilities of lawyers who employ legal assistants and other nonlawyers who interact with clients, other lawyers, and the public. Because nonlawyers are not themselves subject to the Code, the Code makes the supervising lawyer responsible for meeting its objectives.

On supervision, DR 1-104(A) makes a lawyer responsible for a nonlawyer's conduct that the lawyer orders, or that the lawyer with supervisory authority knows or should know of in time to avoid or mitigate but fails to act on; the committee described a fairly strict, heightened standard given that paralegals lack legal training and discipline, citing disciplinary cases where weak supervision led to censure or disbarment. On the scope of permissible work, the committee explained that DR 3-101(A) bars aiding the unauthorized practice of law: paralegals may not appear in court, hold themselves out as lawyers, or give legal advice, but may communicate with clients and witnesses to gather facts, complete forms for attorney review, organize and summarize documents, and draft correspondence and briefs under attorney direction and signature. On confidentiality, DR 4-101(D) requires the lawyer to exercise reasonable care to prevent employees from disclosing client confidences or secrets, and the transient nature of staff and possible imputed conflicts warrant heightened attention. On public communications, DR 2-101(A) bars misleading communications, so a lawyer may not list paralegals on letterhead or business cards without clearly identifying their nonlawyer status, and staff must disclose their lay status in dealings with clients, lawyers, and the public. On compensation, DR 3-102(A) and DR 3-103(A) bar sharing legal fees with nonlawyers, so pay may not be a commission or bonus tied to particular fees or to clients referred, but may be tied to the firm's net profits and overall performance, and nonlawyers may be included in retirement plans.

Currency note

This opinion was issued in 1995, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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: How closely must a lawyer supervise paralegals and other nonlawyer staff?

A: The opinion described a fairly strict, heightened standard under DR 1-104(A), making the lawyer responsible for nonlawyer conduct the lawyer orders or should have known of in time to prevent or mitigate.

Q: What tasks may a paralegal perform, and what is off-limits?

A: Per the opinion, paralegals may gather facts, complete forms for attorney review, organize and summarize documents, and draft correspondence and briefs under attorney supervision, but may not appear in court, hold themselves out as lawyers, or give legal advice.

Q: Can a lawyer list a paralegal on letterhead or a business card?

A: The committee concluded a lawyer may do so only if the paralegal's nonlawyer status is clearly identified, and staff must disclose their lay status in communications with clients, lawyers, and the public.

Q: Can a lawyer share fees with a nonlawyer employee?

A: The opinion concluded no; pay may not be a commission tied to particular fees or referred clients, but may be tied to the firm's net profits and performance, and nonlawyers may be included in retirement plans.

Background and rules framework

The opinion applied New York Code DR 1-104(A) (responsibility for nonlawyer conduct), DR 3-101(A) (aiding unauthorized practice), DR 3-102(A) and DR 3-103(A) (sharing fees with nonlawyers and partnership), DR 4-101(A) and DR 4-101(D) (confidences and secrets), and DR 2-101(A) (false or misleading communications), with ECs 3-5, 3-6, and 4-4. The analysis corresponds to ABA Model Rules 5.3 (responsibilities regarding nonlawyer assistants), 5.4 (professional independence; fee sharing), and 5.5 (unauthorized practice).

Citations and references

Rules of Professional Conduct:

• New York Code DR 1-104(A), DR 2-101(A), DR 3-101(A), DR 3-102(A), DR 3-103(A), DR 4-101(A), DR 4-101(D); EC 3-5, 3-6, 4-4 (applied in the opinion)
• MR 5.3 (nonlawyer assistants); MR 5.4 (professional independence; fee sharing); MR 5.5 (unauthorized practice)

Statutes:

• New York Judiciary Law 478, 484 (unauthorized practice of law)

Cases:

• Matter of Stenstrom, 194 A.D.2d 277 (4th Dep't 1993), disbarment for delegating core responsibilities to nonlawyers
• In re Bonanno, 208 A.D.2d 1117 (3d Dep't 1994), censure for failing to supervise a legal assistant
• Glover Bottled Gas Corp. v. Circle M. Beverage Barn, 129 A.D.2d 678 (2d Dep't 1987), disqualification from a paralegal's imputed conflict

Other opinions cited:

• N.Y. City 884 (1974), modified by this opinion: the prior paralegal opinion
• ABA Formal Op. 316 (1967); ABA Inf. 1440 (1979): nonlawyer compensation and fee sharing

See also

• NYC Bar Formal Op. 1995-12: Securing Interpreters for Clients
• ISBA Ethics Op. 684: Law Firm Employing a Nonlawyer Labor Specialist
• ISBA Ethics Op. 707: Lay Intermediaries Between Lawyers and Clients

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1995-11-non-lawyer-employees-supervision-of-lay-personnel-sharing-legal-fees-with-non-lawyers-confidentiality-conflicts-of-interest-dissemination-of-false-public-communications/