Can a South Carolina lawyer hire an independent or freelance paralegal service and bill clients for its work?

Plain-English summary

A lawyer considered using an independent or "free-lance" paralegal service to help probate estates, paying the service a fee and billing clients for its work. The committee concluded the lawyer may do so, with supervision and disclosure conditions.

The committee reasoned that Rule 5.5(b) bars assisting a non-lawyer in the unauthorized practice of law, but the Comment to Rule 5.5 makes clear that paragraph (b) does not prohibit employing paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for it. Rule 5.3 and its Comment, which refer to a non-lawyer "employed or retained by or associated with a lawyer" and to assistants who are "whether employees or independent contractors," confirm that lawyers may employ independent non-lawyers. The committee cited the New Jersey Supreme Court's decision in In re Opinion No. 24, which permitted employing independent paralegals so long as their work is adequately supervised.

On billing, because the client would be billed for the paralegal organization's services, the committee stated the lawyer should comply with fiduciary obligations regarding full disclosure of billing practices, citing ABA Formal Opinion 93-379.

Currency note

This opinion was issued in 1996, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 use an outside, independent paralegal service?

A: The committee concluded yes, as long as the lawyer adequately supervises the delegated work and remains responsible for the work product, citing Rule 5.5's Comment and Rule 5.3.

Q: Does it matter that the paralegals are independent contractors rather than employees?

A: No. The committee noted that Rule 5.3 and its Comment apply to non-lawyers "whether employees or independent contractors."

Q: How should the lawyer bill for the paralegal service?

A: The committee said the lawyer should comply with fiduciary obligations to fully disclose billing practices, citing ABA Formal Opinion 93-379.

Background and rules framework

The opinion applied Rule 5.5(b) (assisting the unauthorized practice of law) and Rule 5.3 (responsibilities regarding nonlawyer assistants), each corresponding to the like-numbered Model Rule, and relied on the Comments to both rules confirming that lawyers may delegate work to supervised paraprofessionals, including independent contractors.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.5(b) / Model Rule 5.5: assisting the unauthorized practice of law.
• South Carolina RPC 5.3 / Model Rule 5.3: responsibilities regarding nonlawyer assistants.

Cases:

• In re Opinion No. 24 of the Committee on Unauthorized Practice of Law, 607 A.2d 962 (N.J. 1992): lawyers may employ independent paralegals with adequate supervision.

Other opinions cited:

• ABA Formal Opinion 93-379: a lawyer's fiduciary obligation to disclose billing practices.

See also

• SC Bar Ethics Op. 96-11: Sharing Offices With Non-Lawyers
• SC Bar Ethics Op. 96-04: Mortgage Broker as Closing Lawyer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-13/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 96-13

Lawyer is considering using the services of an independent or "free-lance" paralegal assistance service to assist him is probating estates. The lawyer will pay a fee to the paralegal service and will bill the clients for services provided, including the services of the paralegal organization.

Question:
Under the South Carolina Rules of Professional Conduct, may the lawyer employ the services of the paralegal assistance organization?

Summary:
A lawyer may employ the services of an independent paralegal assistance service provided the lawyer adequately supervises the work of the paralegals and remains responsible for their work product. In billing for the paralegal organization's services, the lawyer should comply with his fiduciary duty to disclose to his clients the basis of his fee and expenses.

Opinion:
Rule 5.5(b) of the South Carolina Rules of Professional Conduct states that a lawyer shall not "[a]ssist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law." The comment to Rule 5.5 states:
Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Rule 5.3 sets forth in somewhat more detail the obligations of a lawyer regarding the activities of non-lawyers, including conflicts of interest and preservation of client confidences.

The text of S.C. Rule 5.3 and its accompanying comment make it clear that lawyers may employ independent non-lawyers. Rule 5.3 states: "With respect to a non-lawyer employed or retained by or associated with a lawyer." (emphasis added). The comment to Rule 5.3 states: Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. (emphasis added).
The New Jersey Supreme Court has considered the issue of whether lawyers are ethically prohibited from employing independent paralegals because of the difficulty of supervising their work. Rejecting the recommendation of its unauthorized practice committee, the court concluded that lawyers may ethically employ independent paralegals so long as they adequately supervise their work. In re Opinion No. 24 of the Committee on Unauthorized Practice of Law, 607 A.2d 962 (N.J. 1992).

The inquirer has stated that the client will be billed for services provided, including the fee of the paralegal organization. In billing for the paralegal organization's services, the lawyer should comply with his fiduciary obligations regarding full disclosure of billing practices. See ABA, Formal Opinion 93-379.