Can a lawyer send a licensed non-lawyer representative to appear before the Workers' Compensation Board on the lawyer's client's behalf?
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This page answers the general question as of 1976. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee was asked whether a lawyer who has appeared in a workmen's compensation proceeding may send a licensed lay representative to appear on the client's behalf. New York law allows qualified laymen to be licensed to represent claimants or self-insurers before the Compensation Board (Workmen's Compensation Law sections 24-a, 50(3-b)); these are "licensed representatives."
The committee recounted that for years it had been considered proper for a lawyer to retain a licensed representative to appear in his stead with full disclosure, the client's informed consent, and the lawyer assuming responsibility, citing a joint opinion of the City and County bars (N.Y. City 833; N.Y. County 463 (1958)). Uncertainty arose in 1973 when the Association's Unlawful Practice of Law Committee held that a licensed representative retained by a lawyer (rather than the party) had exceeded his statutory authority and engaged in unlawful practice (UPL 16 (1973)), though that opinion did not consider whether the lawyer had discussed the matter with the client. In 1976 the UPL effectively modified that view, holding a "lay employee" of a lawyer could appear "if such employee is independently licensed to appear before the Board" (UPL 35 (1976)).
Noting that it does not decide questions of law or what constitutes unlawful practice, and that a lawyer may not aid the unauthorized practice of law (DR 3-101), the committee concluded that, unless and until licensed representatives are prohibited by law from being retained by lawyers, a lawyer may ethically retain one if three conditions are met: (1) the lawyer fully discloses the representative's status, explaining that he is not a member of the bar and the consequences; (2) the lawyer obtains the client's clear and informed consent; and (3) the lawyer assumes responsibility for how the matter is handled, mindful of those aspects of the representation that may not be delegated (EC 3-6; the Association's June 19, 1976 Guidelines on legal assistants).
Currency note
This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (supervision of non-lawyer assistants is now governed by Rule 5.3 and aiding unauthorized practice by Rule 5.5). 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 lawyer send a licensed non-lawyer to a Comp Board hearing for a client?
A: Under this opinion, yes, if the representative is independently licensed and the lawyer makes disclosure, obtains the client's informed consent, and assumes responsibility for the work.
Q: What must the lawyer tell the client?
A: Per the opinion, the lawyer must fully disclose that the representative is not a member of the bar and explain the consequences, then obtain the client's clear and informed consent.
Q: Does the lawyer stay responsible for the case?
A: Yes. The committee held the lawyer must assume responsibility for how the licensed representative handles the matter and remain mindful of aspects of the representation that cannot be delegated (EC 3-6).
Background and rules framework
The opinion sits at the intersection of permissible delegation and the bar on aiding unauthorized practice. It applies EC 3-6 (delegation to lay personnel under the lawyer's supervision) and DR 3-101 (aiding unauthorized practice) of the then-current New York Code, against a statutory scheme that independently licenses lay representatives before the Compensation Board. The current Model Rule analogues are Rule 5.3 (responsibilities regarding non-lawyer assistance) and Rule 5.5 (unauthorized practice of law).
Citations and references
Rules of Professional Conduct:
- MR 5.3 (responsibilities regarding non-lawyer assistants)
- MR 5.5 (unauthorized practice of law)
- NY EC 3-6; DR 3-101
Statutes:
- N.Y. Workmen's Compensation Law sections 24-a, 50(3-b) (licensing of lay representatives)
Other opinions cited:
- N.Y. City 833; N.Y. County 463 (1958): lawyer may employ a licensed lay representative with disclosure and responsibility
- UPL 16 (1973); UPL 35 (1976): evolving view on whether a lawyer-retained licensed representative engages in unlawful practice
See also
- NY State Bar Op. 500: Letterhead listing patent agents and paralegals
- NY State Bar Op. 1060: Delegating escrow sub-account tasks to non-lawyer staff
- NY State Bar Op. 1259: Collaboration between a lawyer and a paralegal
Source
- Landing page: https://nysba.org/opinion-446/
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