If a lawyer negotiates with the opposing party's paralegal, secretary, or other non-lawyer representative, is the lawyer helping that person engage in the unauthorized practice of law?

Plain-English summary

Opinion 99-02 addressed whether a lawyer who deals with an opposing party's legal assistant, secretary, or other non-lawyer representative on substantive matters thereby assists the unauthorized practice of law, which Rule 5.5(b) prohibits. The Committee concluded that, in general, the lawyer does not, provided the non-lawyer representative is supervised by a lawyer as Rule 5.3 requires. Where the representative is employed in a lawyer's office, the communicating lawyer may presume that supervision exists, unless the lawyer is aware of facts and circumstances showing adequate supervision is lacking.

The Committee grounded the analysis in the Utah Supreme Court's case-by-case definition of the practice of law. Lawyers routinely delegate work to secretaries, paralegals, and interns, and some of those tasks might be the practice of law if performed without supervision; the Rules except such work from the unauthorized-practice prohibition so long as the lawyer supervises it and remains responsible for it. The licensing safeguards that protect the public are present when a non-lawyer acts under a lawyer's supervision and absent when supervision is inadequate.

The opinion noted two related points. Certain licensed non-lawyer professionals, such as first-party insurance adjusters and real estate agents, represent and negotiate for clients by the nature of their professions, and a lawyer may deal with them without assisting unauthorized practice; but if the lawyer knows the opposing party is also represented by a lawyer, contacting the non-lawyer representative is improper without that lawyer's consent under Rule 4.2. The presumption of supervision can be overcome when the communicating lawyer knows supervision is lacking, in which case the lawyer may be assisting unauthorized practice in violation of Rule 5.5(b). The Committee also cautioned that a firm employing a disbarred or suspended lawyer as a paralegal should take special care to ensure adequate supervision.

Currency note

This opinion was issued in 1999, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). Utah's unauthorized-practice rule was later renumbered (former Rule 5.5(b) is now addressed in Rule 5.5(a)). 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: Does dealing with the other side's paralegal or secretary risk assisting unauthorized practice?

A: Generally no. The Committee concluded that communicating with a non-lawyer representative on substantive matters is not assisting unauthorized practice if the representative is supervised by a lawyer as Rule 5.3 requires.

Q: Does a lawyer have to verify that the other firm's non-lawyer is supervised?

A: No. When the non-lawyer is employed in a lawyer's office, the communicating lawyer may presume the representative is supervised within Rule 5.3's requirements. That presumption is overcome only if the lawyer is aware of facts and circumstances indicating adequate supervision is lacking.

Q: What about non-lawyers like insurance adjusters or real estate agents?

A: The Committee said certain licensed non-lawyer professionals, including first-party insurance adjusters and real estate agents, represent and negotiate for clients by the nature of their professions, and a lawyer may deal with them without assisting unauthorized practice, subject to the Rule 4.2 limit when the opposing party is also represented by a lawyer.

Background and rules framework

The opinion interpreted Utah Rule 5.5(b) (now part of Model Rule 5.5), which barred a lawyer from assisting any person in the unauthorized practice of law, read together with Rule 5.3 (responsibilities regarding non-lawyer assistants). The analysis turned on the Utah Supreme Court's case-by-case approach to defining the practice of law and on the supervision exception that allows delegated work. Rule 4.2 (communication with represented persons) supplied the limit when the opposing party is itself represented by counsel.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / Utah Rule 5.5(b) (unauthorized practice of law; assisting)
• Model Rule 5.3 / Utah Rule 5.3 (responsibilities regarding non-lawyer assistants)
• Model Rule 4.2 / Utah Rule 4.2 (communication with a represented person)

Cases:

• Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995), defining the practice of law
• Board of Commissioners v. Peterson, 937 P.2d 1263 (Utah 1997), supervision and unauthorized practice

Other opinions cited:

• Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar): communication with a represented person

See also

• Utah Ethics Op. 13-01: Litigation-Hold Email to a Represented Employee
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• DC Bar Op. 331: Contact With In-House Counsel of a Represented Entity
• Alabama Ethics Op. 1990-01: Paralegal Business Cards and Identification

Source

• Landing page: https://www.utahbar.org/ethics-opinions/1999-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1999-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 99-02. Approved April 30, 1999.

Issue: Does a lawyer who negotiates or communicates with an opposing party's legal assistant, secretary or other non-lawyer representative about substantive matters assist in the unauthorized practice of law under Utah Rule of Professional Conduct 5.5(b)?

Opinion: In general, a lawyer who negotiates or otherwise communicates with a non-lawyer representative on substantive matters affecting the rights of parties to a particular matter is not assisting in the unauthorized practice of law if that representative is supervised by a lawyer as required under Rule 5.3. When the non-lawyer representative is employed in a lawyer's office, the lawyer communicating with such a representative may presume that the representative is supervised within the requirements of Rule 5.3, unless the lawyer is aware of facts and circumstances that impart knowledge that adequate supervision is lacking.

Analysis: Under Utah Rules of Professional Conduct 5.5(b), "A lawyer shall not . . . [a]ssist any person in the performance of activity that constitutes the unauthorized practice of law." The Utah Supreme Court has stated that "the practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent." (fn1) The Court continued, "What constitutes the practice of law in any given situation requires a case-by-case decision, and therefore, each case must be evaluated to determine whether the particular acts involved constitute the practice of law." (fn2)

Lawyers often employ non-lawyer assistants, including secretaries, legal assistants, paralegals and student interns. Such assistants may perform a wide array of services, including interviewing clients, scheduling depositions, drafting documents or pleadings, and conducting legal research. Some of these activities might constitute the practice of law in a given situation if the persons performing them were to act independently of any supervision. (fn3) However, the Rules of Professional Conduct except such activities from the prohibitions relating to the unauthorized practice of law if the assistants are employed by a lawyer "so long as the lawyer supervises the delegated work and retains responsibility for their work." (fn4) The fact that the practice of law is a licensed profession creates safeguards for the protection of the public. Those safeguards are in place where a paralegal or other non-lawyer acts under a lawyer's supervision, and they are absent when such supervision is inadequate or non-existent. (fn5)

Exceptions to the general rule exist for certain non-lawyer professionals who are licensed and, by the nature of their profession, engage in actions representing clients and negotiating on their behalf. Examples of these are first-party insurance adjusters (fn6) and real estate agents. (fn7) A lawyer may negotiate or communicate with these representatives without fear of assisting in the unauthorized practice of law. If, however, the lawyer knows that the opposing party is also represented in the matter by a lawyer, communication with the non-lawyer representative is improper without the lawyer's consent. (fn8)

Just as defining what constitutes the practice of law is fact-specific and requires a case-by-case analysis, so does defining what constitutes adequate supervision of a non-lawyer assistant. The issue before the Committee does not directly involve the conduct of a supervising lawyer, but rather an opposing party's lawyer's communication with a non-lawyer representative. Where a non-lawyer assistant is employed by a lawyer, an opposing lawyer communicating with that assistant may presume that the assistant is supervised within the requirements of Rule 5.3. The presumption may be overcome where the communicating lawyer is aware of facts and circumstances indicating that adequate supervision is lacking. In that case, counsel may indeed be assisting in the unauthorized practice of law in violation of Rule 5.5(b). The appropriate level of supervision necessary to insure that the representative is not engaging in the unauthorized practice of law is fact-specific and will vary from case to case.

Finally, lawyers employing a disbarred or suspended lawyer as a paralegal should take special care to ensure adequate supervision. Because such an individual has had significant legal training and experience, there may be a tendency for him to engage in conduct that is not properly supervised and, therefore, constitutes the unauthorized practice of law.

Footnotes

1. Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995).

2. Id. at 870.

3. See Board of Commissioners v. Peterson, 937 P.2d 1263 (Utah 1997).

4. See Rule 5.5 cmt., and Rule 5.3 cmt.

5. Peterson, 937 P.2d at 1269.

6. Utah Code Ann. §§ 31A-26-101 to -311 (1999).

7. Utah Code Ann. §§ 61-2-1 to -24 (1997 & Supp. 1998).

8. See Utah Rules of Professional Conduct 4.2; Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar).

Rules Cited: 5.3, 5.5