NYSBA 2023-07-13

Is a lawyer who works as a confidential assistant to a government attorney, doing clerical and document-preparation work, bound by the Rules of Professional Conduct?

Short answer: Yes. The opinion concludes that a lawyer employed to provide both legal and nonlegal support to a supervising lawyer's client is subject to the Rules, because the assistant's nonlegal work is part of a package of legal services to the client and is not 'distinct' from the legal services, so the Rule 5.7(a)(4) exception does not apply.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1260: A Lawyer Working in a Nonlegal Support Role

Short answer: The opinion concludes that a lawyer employed as a confidential assistant to a supervising government lawyer, providing both legal and clerical or administrative support for that lawyer's client, is subject to the Rules of Professional Conduct, because the assistant's nonlegal work is part of a package of legal services to the client and is not "distinct" from the legal services, so the Rule 5.7(a)(4) escape from the Rules is not available.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is a lawyer employed as a "Confidential Assistant" to a School Attorney, a civil-service position the inquirer describes as primarily secretarial and administrative and one that does not require a law degree or bar admission. The duties include preparing documents for the School Attorney's signature and revising drafts of legal documents and reports. The inquirer asked whether, in that role, he is governed by the Rules of Professional Conduct.

The opinion concludes first that when a lawyer exercises professional legal judgment in providing services a nonlawyer could lawfully provide, the lawyer is practicing law and is governed by the Rules (citing N.Y. State 709 (1998)). So the inquirer is bound by the Rules wherever he applies professional legal judgment.

As to purely clerical or administrative duties, the opinion turns to Rule 5.7, which distinguishes legal from nonlegal services. The opinion explains that the inquirer's client is the School District, not the School Attorney to whom he reports, and that the School Attorney, assisted by the inquirer, provides legal services to the School District much as a nonlawyer secretary would in a private firm. Because the legal services rendered by the School Attorney are not distinct from the inquirer's supporting nonlegal services, the opinion concludes the Rule 5.7(a)(4) notice cannot rebut the presumption that the nonlegal services are part of the client-lawyer relationship, and all of the inquirer's duties in assisting the School Attorney are governed by the Rules. The opinion adds that this is consistent with Rules 5.1 and 5.3, which require the School Attorney to take reasonable steps to ensure the inquirer's conduct conforms to the Rules.

In practice

Under this opinion, a lawyer who supports a supervising lawyer in providing legal services to a client is bound by the Rules for all of that work, whether the particular task is legal or clerical, because the support work is not distinct from the legal services and the Rule 5.7(a)(4) notice cannot remove it from the client-lawyer relationship. Per the opinion, the supervising lawyer also bears responsibility under Rules 5.1 and 5.3 for ensuring the assistant's conduct conforms to the Rules.

Common questions

Q: Is a lawyer doing clerical work for another lawyer still bound by the Rules of Professional Conduct?

A: Per the opinion, yes. Because the clerical support is part of a package of legal services the supervising lawyer provides to the client, it is not "distinct" from the legal services, so all of the assistant's duties are governed by the Rules.

Q: Can a Rule 5.7(a)(4) written notice take the clerical work outside the Rules?

A: Per the opinion, no, on these facts. The client is the School District, and because the support work is not distinct from the School Attorney's legal services to that client, the notice cannot rebut the presumption that the work is part of the client-lawyer relationship.

Q: Does the supervising lawyer have any responsibility here?

A: Per the opinion, yes. Rules 5.1(b)(2) and 5.3(a) require the School Attorney to make reasonable efforts to ensure the inquirer's conduct, whether as a lawyer or nonlawyer, conforms to the Rules.

Background and rules framework

The opinion interprets New York Rule 5.7 (responsibilities regarding nonlegal services), and applies Rule 5.1(b)(2) and Rule 5.3(a) (supervisory responsibilities of lawyers over other lawyers and nonlawyers) and Rule 5.2(a) (a subordinate lawyer remains bound by the Rules). These correspond to ABA Model Rules 5.7, 5.1, 5.2, and 5.3.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 5.1(b)(2), 5.2(a), 5.3(a), 5.7
ABA Model Rules 5.1, 5.2, 5.3, 5.7 (analogues)

Other opinions cited:

N.Y. State 709 (1998): applying professional legal judgment makes the activity the practice of law
N.Y. State 636 (1992): same principle

Source

Landing page: https://nysba.org/ethics-opinion-1260/