Ezel / Ethics Opinions / NYSBA
NYSBA 2007-02-12

Is a lawyer aiding the unauthorized practice of law just by dealing with a non-lawyer the other side hired to handle a transaction?

Short answer: No. The committee concludes that continuing to represent a client in a transaction, and therefore dealing with a non-lawyer the counter-party chose to represent it, does not by itself aid the unauthorized practice of law.
Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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.

NY State Bar Ethics Opinion 809: Dealing with the other side's non-lawyer representative

Short answer: A lawyer who continues to represent a client in a transaction, and so must communicate and deal with a non-lawyer the counter-party chose to represent it, does not thereby aid the unauthorized practice of law.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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.

View original opinion

Plain-English summary

The committee was asked whether a lawyer aids the unauthorized practice of law when, to carry out a client's transaction, the lawyer must communicate and deal with a non-lawyer engaged by the client's counter-party who may be engaged in the unauthorized practice of law. It offers examples: a settlement company handling an unrepresented counter-party's side of a refinancing; a real estate agent advising an unrepresented buyer on the legal meaning of documents and preparing title instruments; and a suspended or disbarred lawyer representing the bride in a pre-nuptial negotiation.

DR 3-101(A) provides that a lawyer shall not aid a non-lawyer in the unauthorized practice of law. The committee concludes that in these transactional situations, continuing to represent one's own client and necessarily dealing with the counter-party's non-lawyer representative does not violate DR 3-101(A). The lawyer's obligation runs to the lawyer's own client; the lawyer does not "aid" the non-lawyer's practice merely by transacting opposite that person on the client's behalf.

The committee limits its answer carefully. The opinion is confined to transactional situations and does not reach litigation, where special duties to the court may apply. And the committee expresses no opinion on whether, in its examples, the non-lawyer representative is in fact engaged in the unauthorized practice of law; it answers only the discrete question whether dealing with such a person aids that practice. It references N.Y. State 801 (a lawyer may not partner with an out-of-state attorney who would be engaging in unauthorized practice) and N.Y. State 705 (when a lawyer may accept referrals from a non-attorney company).

In practice

The opinion holds, under the former Code as it stood at the time, that DR 3-101(A) is not violated when a lawyer, to advance the client's transaction, communicates and deals with a non-lawyer the counter-party engaged, even if that non-lawyer may be engaged in unauthorized practice. The committee confines the answer to transactional matters (not litigation) and does not decide whether the counter-party's representative is actually engaged in unauthorized practice.

Common questions

Q: Does dealing with the other side's non-lawyer representative aid the unauthorized practice of law?

A: No. The committee concludes that continuing to represent one's client and necessarily communicating with a non-lawyer the counter-party chose does not violate DR 3-101(A)'s bar on aiding unauthorized practice.

Q: Does the opinion apply in litigation?

A: No. The committee expressly limits its answer to transactional situations and notes that litigation may involve special duties, such as duties to the court, that it does not address.

Q: Did the committee decide whether the non-lawyer was practicing law without a license?

A: No. The committee expresses no opinion on whether the non-lawyer representatives in its examples are in fact engaged in the unauthorized practice of law; it answers only whether dealing with them aids that practice.

Background and rules framework

The opinion interprets DR 3-101(A) (a lawyer shall not aid a non-lawyer in the unauthorized practice of law, the analogue of ABA Model Rule 5.5(a)), with DR 7-101(A)(3) and EC 3-8, in the context of transactional representations where the counter-party is represented by a non-lawyer.

Citations and references

Rules of Professional Conduct:

  • MR 5.5 (unauthorized practice; assisting unauthorized practice)
  • Former Code DR 3-101(A); DR 7-101(A)(3); EC 3-8

Other opinions cited:

  • N.Y. State 801 (2006): a lawyer may not partner with an out-of-state attorney who would be engaging in unauthorized practice
  • N.Y. State 705 (1998): when a lawyer may accept referrals from a non-attorney company

See also

Source