Can a lawyer staff a distant branch office mostly with nonlawyers the lawyer rarely visits, and can a Virginia lawyer front a satellite office for an out-of-state lawyer?

Plain-English summary

The committee considered two hypotheticals about supervising nonlawyer staff. In the first, a Virginia lawyer with a busy practice in City X wanted to open a second office about 200 miles away in City Y, staffed almost entirely by nonlawyers handling collection matters, with the lawyer in residence roughly two days a month and otherwise available by phone and fax. In the second, an out-of-state lawyer not seeking Virginia admission wanted a Virginia satellite office staffed by foreign attorneys and nonlawyers who would interview clients and witnesses, gather documents, make settlement demands, and prepare files, with a Virginia lawyer engaged to oversee the staff, monitor files, sign correspondence, and try cases while spending two to four days a month there.

The controlling rules were DR 3-104(A) (nonlawyer personnel may perform delegated functions only under a lawyer's direct supervision and may not counsel clients, appear as counsel, or engage in the unauthorized practice of law), DR 3-104(D) (the lawyer must examine and be responsible for all delegated work), DR 1-102(A)(2) and (A)(3) (no circumventing a rule through another's acts; no deliberately wrongful acts), and DR 3-101(A) (no aiding the unauthorized practice of law), with EC 3-5 and EC 3-6. The committee also found the language of Model Rule 5.3(c)(1) instructive though not adopted in Virginia.

The committee concluded that adequate supervision must let the lawyer retain the requisite client relationship and personal responsibility for all work product, and should be significant, rigorous, and efficient. Without quantifying the hours required, it held that the combination of minimal lawyer time, off-premises nonlawyer staff, the distance between offices, and the apparently independent operation of the nonlawyers gives rise to a presumption of inadequate supervision. It noted that separation by distance and time increases the risk that nonlawyers exceed their authority, and that a lawyer should assign distant nonlawyers only tasks not requiring unsupervised legal judgment. The committee opined that a Virginia lawyer's participation in either arrangement would be improper and violative of DR 3-104(A) and (D), and that the first arrangement would also violate DR 1-102(A)(2) and (A)(3).

Currency note

The Virginia State Bar withdrew this opinion on June 13, 2016, as reflected on the official source. The opinion was issued in 1994, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. Treat this page as historical context, not current guidance; subsequent rule amendments and later opinions, including the modern rules on supervising nonlawyer assistants and multijurisdictional practice, may have altered the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: How much supervision of nonlawyer staff did this opinion require?

A: Under this 1994 opinion (since withdrawn), supervision had to be significant, rigorous, and efficient enough to keep the lawyer's direct relationship with the client and full responsibility for the work product. The committee declined to set a number of hours.

Q: Could a lawyer run a distant branch office staffed mostly by nonlawyers?

A: The committee said the combination of minimal lawyer time, an off-site office, the distance involved, and largely independent nonlawyer operation created a presumption of inadequate supervision, so the described branch arrangement would be improper.

Q: Could a Virginia lawyer oversee a satellite office set up by an out-of-state lawyer?

A: The committee concluded a Virginia lawyer's participation in the second arrangement, like the first, would be improper and violative of DR 3-104(A) and (D), given the strong potential for unauthorized practice by the nonlawyer staff.

Background and rules framework

The opinion interpreted former Virginia DR 3-104(A) and (D) (delegation to and supervision of nonlawyer personnel), DR 3-101(A) (no aiding the unauthorized practice of law), and DR 1-102(A)(2) and (A)(3), with EC 3-5 and EC 3-6. Those concerns now correspond to ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistance) and Model Rule 5.5 (unauthorized practice and multijurisdictional practice).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 3-104(A), (D); DR 3-101(A); DR 1-102(A)(2), (A)(3); EC 3-5; EC 3-6 (Code of Professional Responsibility)
• ABA Model Rule 5.3 (nonlawyer assistance); Model Rule 5.5 (unauthorized practice)

Other opinions cited:

• Virginia LE Op. 1290: improper for a nonlawyer employee to conduct in-person solicitation of potential clients.
• Virginia UPL Opinions 76, 86, 91: improper for nonlawyers who are not the lawyer's employees to prepare legal documents even with later lawyer review.

See also

• VA LEO 1792: Training Nonlawyers and UPL
• VA LEO 1800: Hiring Opposing Counsel's Secretary
• VA LEO 1764: Fee Sharing With a Finance Company

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1600.pdf

Original opinion text

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

Withdrawn/June 13, 2016
Committee Opinion
June 14, 1994
LEGAL ETHICS OPINION 1600

AIDING UNAUTHORIZED PRACTICE
OF LAW – NONLAWYER PERSONNEL–
MISCONDUCT: LEVEL OF DIRECT
SUPERVISION OF NONLAWYER
PERSONNEL REQUIRED.

You have presented two hypothetical situations involving a lawyer or law firm's direct
supervision of non-lawyer personnel. The first hypothetical involves:
(a) Virginia lawyer (" A") with an office and extensive practice in City X
wishes to open another law office in City Y, approximately 200 miles from
City X. "A" intends to employ non-lawyer staff to operate the second
office which will deal almost exclusively with clients' collection
matters. "A" expects to spend approximately two days per month in
residence at the second office; at all other times, the non-lawyer staff
will operate at the direction of "A" but without direct supervision,
although "A" will be available by telephone and facsimile transmission for
consultation.
The second hypothetical involves:
(b) A non-Virginia lawyer (" B"), admitted in another state, who wishes to establish a
satellite office in Virginia for the purpose of representing plaintiffs in personal injury
matters. " B" does not intend or is not eligible for admission to the Virginia State
Bar, and does not expect to be in residence in Virginia, but does intend to employ
full-time staff consisting of foreign (non-VSB) attorneys and non-lawyers. The staff
will interview clients and witnesses, collect documentation, make settlement
demands, and prepare files for trial where necessary. "B" also intends to employ a
Virginia licensed lawyer (" C") for purposes of overseeing the work of the nonlawyer staff, monitoring files, signing correspondence, and taking matters to trial
where necessary. "C" will maintain a separate practice at another location and will
spend two to four days per month in residence in the office established by "B".
You have asked the committee to opine, under the facts of the inquiry, first, as to the
appropriate level of supervision which would constitute a lawyer or law firm's sufficient
"direct supervision" of non-lawyer personnel. You have also asked that the committee
opine as to whether it would be proper for a Virginia lawyer to participate in the law
practice as described in the hypotheticals.
The appropriate and controlling disciplinary rules relative to your inquiry are DR:3104(A), which permits a lawyer or law firm to employ non-lawyer personnel to perform
certain delegated functions under the direct supervision of a licensed attorney and which
prohibits a lawyer or law firm from permitting such non-lawyer personnel to (1) counsel
clients about legal matters; (2) appear as counsel in court ... ; or (3) engage in the
unauthorized practice of law; DR:3-104(D) which provides, in pertinent part, that the

Withdrawn/June 13, 2016
Committee Opinion
June 14, 1994
lawyer shall examine and be responsible for all work delegated to non-lawyer personnel;
DR:1-102(A)(2) which precludes a lawyer from circumventing a Disciplinary Rule
through actions of another; and DR:1-102(A)(3) which, in pertinent part, prohibits a
lawyer from committing a deliberately wrongful act that reflects adversely on the
lawyer's fitness to practice law. Guidance is also available through Ethical Consideration
3-6 [ EC:3-6] which, in pertinent part, cautions that a lawyer's delegation of tasks to
clerks, secretaries, and other lay persons is proper if the lawyer maintains a direct
relationship with his client, supervises the delegated work, and has complete professional
responsibility for the work product. Finally, the committee directs your
attention to EC:3-5 which states, in pertinent part, that:
Functionally, the practice of law relates to the rendition of services for others that
call for the professional judgment of a lawyer. The essence of the professional
judgment of the lawyer is his educated ability to relate the general body and
philosophy of law to a specific problem of a client .... Where this professional
judgment is not involved, non-lawyers ... may engage in occupations that require a
special knowledge of law in certain areas. But the services of a lawyer are essential
in the public interest whenever the exercise of professional legal judgment is
required.
Although not adopted in Virginia, the committee also finds instructive the language of
Model Rule 5.3(c)(1) which finds that
a lawyer shall be responsible for conduct of [a nonlawyer employed or retained by or
associated with a lawyer] that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the
specific conduct, ratifies the conduct involved.
The committee has previously opined that it would be improper and violative of DR:3104(A) for a lawyer to permit a nonlawyer employee to engage in certain non-delegable
duties, specifically in-person solicitation of potential clients. See LE Op. 1290. The
committee also notes extant Unauthorized Practice of Law Opinions which indicate that it
is improper for nonlawyers who are not employees of the lawyer to prepare legal
documents even when such documents are subsequently reviewed and approved by the
lawyer. See UPL Opinions 76, 86, 91.
With regard to the two hypotheticals you have presented, the committee is of the view
that the level of a lawyer's supervision of non-lawyer employees must be such that it
permits the lawyer to retain the requisite relationship with the client and the personal
responsibility for all work products emanating from representation of the client. The
committee believes that such supervision should be significant, rigorous, and efficient.
While the committee abstains from specifically quantifying the number of hours per week
which would constitute the determination of adequate or significant supervision, it
recognizes that a number of factors enter into the reaching such a conclusion. The
committee is of the opinion that the combination of (1) an apparently minimal level of

Withdrawn/June 13, 2016
Committee Opinion
June 14, 1994
lawyer time devoted to supervision, as specified; (2) the off-premises location of the nonlawyer personnel; (3) the distance between the primary lawyer's office and the satellite
office; and (4) the apparently independent operation of the non-lawyer employees gives
rise to a presumption that there is inadequate and insufficient supervision by the Virginia
licensed attorney(s).
In addition, it appears to the committee that when the lawyer and his non-lawyer
employee are separated both by distance and time, a greater potential exists for a nonlawyer employee to exceed his or her authority in providing services to a lawyer's client.
Furthermore, as mandated by DR:3-101(A), a lawyer shall not aid a nonlawyer in the
unauthorized practice of law. Although the determination of what activities constitute
such unauthorized practice is beyond the purview of this committee, it notes concern that
opportunities for those improper activities may be fostered by the lack of a lawyer's
adequate supervision of non-lawyer employees. In order to avoid any impropriety, the
committee is of the opinion that a lawyer may assign to a non-lawyer employee
[especially one located at a distance from the supervising lawyer] only those tasks which
do not require the exercise of unsupervised legal judgment.
With regard to your second question, the committee is of the opinion that it would be
improper for a Virginia lawyer to participate in the law practice as described in either of
the hypotheticals posed. Although, as noted above, this committee is not authorized to
determine whether the activities of the non-lawyers constitute the unauthorized practice
of law, it is this committee's view that the scenarios described present strong potential for
such impermissible activities. Therefore, the committee opines that a Virginia lawyer's
participation in the schemes described would be improper and violative of DR:3-104(A)
and (D). Furthermore, the committee is of the opinion that, in the first hypothetical, the
Virginia lawyer's role in the establishment of the satellite office, out of which non-lawyer
employees would be operating largely independently, would be violative of DR:1102(A)(2) and DR:1-102(A)(3).
Committee Opinion
June 14, 1994