What work can a lawyer delegate to a law clerk who has filed a certificate of clerkship?

Plain-English summary

The committee was asked what activities may properly be delegated to a law clerk for whom a certificate of clerkship has been filed. It concluded that such a clerk falls within the category of legal assistant and is subject to the restrictions imposed on other non-lawyer aides to lawyers. The degree of responsibility entrusted may vary with the individual's education and experience, but absent a statute or rule of court, a clerk's services may be employed only within the limits of the Code.

The committee held that the guidelines governing law clerks, paralegals, and other non-lawyer assistants apply, citing a line of its own opinions (among them N.Y. State 44 (1967), 255 (1972), 261 (1972), 299 (1973), 304 (1973), 343 (1974), 347 (1974); N.Y. County 641 (1974); N.Y. City 884 (1974)) and EC 3-6. It quoted EC 3-6's statement that delegating tasks to clerks and other lay persons is proper if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product, which enables more economical and efficient legal service.

The committee directed readers to N.Y. City 884 (1974) and N.Y. County 641 (1974) as particularly comprehensive guidance, and noted the then-proposed NYSBA Guidelines for Attorneys for the Use of Legal Assistants (1975) and the Eastern District of New York's new Student Practice Rule. It expressly limited the opinion to the ethical aspects of a clerk's activities and disclaimed any view on questions of the improper practice of law.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; a lawyer's responsibilities for non-lawyer assistance are now in Rule 5.3. 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 Treat this page as historical context, not current guidance.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: Is a law clerk with a certificate of clerkship treated differently from a paralegal?

A: Under this opinion, no. The committee placed the clerk in the same legal-assistant category as other non-lawyer aides, subject to the same Code limits.

Q: What conditions make delegation to a clerk proper?

A: Per the opinion, the lawyer must maintain a direct relationship with the client, supervise the delegated work, and retain complete professional responsibility for the work product (EC 3-6).

Q: Did the opinion address unauthorized practice of law?

A: It expressly did not. The committee limited itself to the ethical aspects of the clerk's activities and declined to reach questions of improper practice of law.

Background and rules framework

The opinion applied EC 3-6 of the then-current New York Code, which permits delegation to non-lawyer staff under the lawyer's supervision and responsibility. The current analogue is Rule 5.3 (responsibilities regarding non-lawyer assistance). The opinion situated law clerks within the existing body of non-lawyer-assistant guidance rather than creating a separate standard.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding non-lawyer assistance)
• NY EC 3-6

Other opinions cited:

• N.Y. City 884 (1974); N.Y. County 641 (1974): comprehensive guidance on non-lawyer assistants
• N.Y. State 44 (1967) and related opinions: the line of authority on legal-assistant limits

See also

• NY State Bar Op. 386: A part-time secretary working at an adversary firm
• NY State Bar Op. 421: Reviewing another lawyer's work for an accountant

Source

• Landing page: https://nysba.org/opinion-393/