ETHICS OPINION 666-1985 DUTIES AND FUNCTIONS WHICH MAY BE UNDERTAKEN BY A LAW CLERK OR OTHER LEGAL ASSISTANT.

New York County Lawyers’ Association Opinion No. 666

.In answering questions this Committee acts by virtue of the following provision of the By-laws of the Association, Article 54, Section 3:

“This Committee shall have power, when consulted, to advise inquirers respecting questions of proper professional conduct, reporting its action to the Board of Directors from time to time.”

It is understood that this Committee acts on specific questions submitted ex parte and in its answers bases its opinion on only such facts as are set forth in the question.

QUESTION NO. 666

CODE: Canons 1 and 9; DR 3-101(A); EC 3-6.

(1) May a lawyer permit or assign his or her law clerk, acting alone, to conduct a pre-trial deposition on oral examination?

(2) May a lawyer permit or assign his or her law clerk, acting alone, to attend a real estate closing?

(3) May a lawyer employ a disbarred lawyer as a law clerk to conduct pre-trial depositions and attend real estate closings?

ANSWER TO QUESTION NO. 666

The question comes to this Committee in the following context: The inquiring lawyer wishes to employ a disbarred lawyer as a law clerk. That individual’s functions would include the conduct of pre-trial depositions and the attendance at real estate closings, both on the inquiring lawyer’s behalf.

In the opinion of the Committee, it would be ethically improper for a lawyer to permit a law clerk or legal assistant (as defined below) to conduct a pre-trial deposition or to perform any services which involve the exercise of professional legal judgment or which may only be performed by a member of the Bar. In the opinion of the Committee it would be ethically proper to permit a law clerk to perform other tasks in a law office provided that they are performed under the direction of the employing lawyer or do not require the exercise of professional judgment. Among these is the attendance at a real estate closing if such

In the opinion of the Committee it would be ethically improper for a lawyer to employ, in any capacity related to the practice of law, an individual who has been disbarred, or who is suspended from the practice of law, or who has resigned from the Bar in the face of pending charges.

I. LEGAL ASSISTANTS.

The use of specially-trained aides, from scriveners and emanuenses to para-legals and legal secretaries, in providing assistance to lawyers in carrying out their duties, has been part of the profession for virtually its entire history. The proper role and function of such assistants, whether law clerks, para-legals or other legal or lay assistants_1_/ has been the subject of ethical opinions for over a half- century, including comprehensive opinions by this Committee (N.Y. County 641 [1975]), and companion committees of the Association of the Bar of the City of New York (N.Y. City 884 [1974]) and the American Bar Association (ABA 316 [1967]). The New York State Bar Association, as well, has rendered significant opinions in the area (N.Y. State 343 [1974] and 304 [1973]). The burgeoning use and expanding role of legal assistants, employed widely by law firms and bank and corporate law departments, necessary to enable the lawyer to provide quality service at reasonable cost, has indicated the need to remind the Bar of the essential guidelines to be followed in the employment of such assistants.

It is axiomatic that none but a lawyer duly admitted to the Bar of this State may practice law here._2_/ Any other person, no matter how deep, intense or comprehensive his or her training or knowledge, is a lay person and may not engage in the practice of law. Moreover, any use of legal assistants in other than their proper role and function may well constitute a breach of the provisions of DR 3- 101(A) of the Code of Professional Responsibility, prohibiting lawyers from aiding non-lawyers in the unauthorized practise of law.

While the precise definition of what constitutes the practice of law is a legal question for courts to decide, and although sometimes elusive, certain guide posts are provided both by statute (See Judiciary Law, §484) and by prior ethical opinions.

In simplest terms, a legal assistant may not perform those functions which only lawyers may perform. Moreover, legal assistants “may never perform services which involve the exercise of the professional judgment of a lawyer (and) may not advise clients with respect to their legal rights” N.Y. County 641. As an employee of a lawyer, but not as an independent entrepreneur (Judiciary Law, §§478, 479, 484 and 486; cf. Spivak v. Sacks, 16 N.Y.2d 163 [1965]) he or she, may, however, perform virtually any other task of a ministerial or clerical nature. He or she may conduct legal research, prepare memoranda of law,_3_/ prepare all legal papers, interview prospective witnesses and, in general, perform all services that do not require the exercise of independent professional judgment or participation, all subject to the continuing supervision of the lawyer by whom the legal assistant is employed. N.Y. County 641 N.Y. City 884 N.Y. State 44 (1967); N.Y. City 78 (1927- 28); EC 3-6.

The legal assistant may also deal directly with the public either by oral or written communication, provided that he or she properly identifies him or herself from the outset as a non-lawyer (N.Y. City 884; N.Y. State 500 [1978]) and, again, provided that such dealings do not call for the independent exercise of professional judgment. He or she may also deal directly with and appear before courts and other tribunals on routine matters, such as responding to calendar calls, provided no oral argument or exercise of judgment of any kind is required (N.Y. City 884; N.Y. State 44) and, of course, provided that such appearance would not contravene a standing rule of the court of tribunal. See DR7-106(A); see also Canons 1 and 9.

The essence of the legal assistant’s role is that he or she may perform any delegated duty, under the supervision of a lawyer who is responsible to the client and any tribunal for the assistant’s acts (ABA 316; N. Y. City 884; EC 3-6) and provided that the assistant may not counsel any client nor exercise independent professional judgment. The determination of what matters, moreover, require the exercise of professional judgment is not one which should be left to the legal assistant. Rather, before delegating any task, the lawyer should determine whether any such matters may arise. If it appears that any questions may arise calling for the Exercise of such judgment during the performance of the task, the lawyer should either not delegate it to the legal assistant or so circumscribe the assignment as to avoid the need for the legal assistant to exercise judgment. Should any questions calling for the exercise of professional judgment arise unexpectedly, it is the duty: of the legal assistant to immediately refer such matters to the lawyer under whose supervision he or she is performing the work.

The immediate questions asked have been the subject of several prior opinions. In N.Y. County 641 this Committee, citing N.Y. State 44 found that a legal assistant “should not represent a client in litigation before any court or administrative tribunal, argue motions, [or] conduct examinations for depositions or in supplementary proceedings” (emphasis added).

The taking of a deposition necessarily involves an exercise of professional judgment, and therefore may not be delegated to anyone not yet authorized to perform an attorney’s function, whether or not a supervising licensed attorney remains present throughout the taking of the deposition

N.Y. State 304 (1973); See also N.Y. State 44; N.Y. County 334 (1935).

A legal assistant may attend closings of title, however, under certain circumstances:

A clerk can attend upon the closing of title if merely involves formalities such as receipt or delivery of a deed, or payment or receipt of money. But if it involves argument or decision in behalf of a client, he would be acting as an attorney and consequently should not attend or close.

N.Y. city 78; N.Y. City 884.

Patently, the supervising lawyer should know or determine in advance whether a particular closing involves formalties only and thus is merely ministerial or whether decisions of a substantive nature will be involved.

II. Disbarred Lawyers.

One of the most difficult matters which the Bar must face is the necessity to impose discipline on its members. often that discipline is that of disbarment or suspension._4_/ In other cases lawyers have resigned from the Bar in the face of charges which have been or are likely to be filed. From the present inquiry and others like it, as well as from recent newspaper publicity with respect to the employment of disbarred lawyers by law firms, it appears to this Committee that it is appropriate to remind the Bar of the ethical standards to be applied with respect to the employment of disbarred lawyers._5_/

As a matter of law, disbarred lawyers are expressly forbidden to perform any act which may only be done by admitted lawyers. Judiciary Law, §486. While the right of a disbarred lawyer to perform any particular act is a question of law upon which this Committee does not pass, the question of the employment of such a person is an ethical one.

Judiciary Law, §90 directs the Appellate Divisions to “command” every lawyer who is disbarred or suspended “to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another.” (emphasis added). Two acts are specifically prohibited by that statute: the appearance as an attorney before any court, tribunal or public body and the giving of a legal opinion or advice. (See also, to similar effect, 22 NYCRR §603.13 [Rules of the Appellate Division, First Department] and 22 NYCC §691.10 [Rules of the Appellate Division, Second Department]).

In our view, it is clear that the employment by a lawyer or law firm of a disbarred lawyer, in any capacity related to the practice of law is improper.

Certain it is that our law rightly excludes those who have been disbarred from the slightest participation in the work of a lawyer and his office, to which employment, as a layman, there could not be the slightest objection were it not for the fact of disbarrment.

Proopis v. Equitable Life Insurance Co., 183 Misc. 379 (Sup. Ct., Kings Co. 1944).

If, as a matter of law, the disbarred attorney is forbidden to render the services described in the question, then it is clearly improper to employ him for their performance. And, as a matter of professional propriety, the employment, by an attorney in good standing, of a disbarred attorney to perform any duties that lie in a doubtful zone between practicing law and not practicing law_6_/ (including the duties specified in the question_7_/), should in the opinion of the Committee, be disapproved because such employment tempts and conduces to the violation of the plain intendment of any decree or order of disbarment. It cannot be doubted that disbarment is always and everywhere intended to deprive the attorney of the right to practice law, and even if the disbarred attorney be employed to render such services only as may not constitute the “practice of law,” yet there is in every such case the danger that he will, under cover or cloak of such employment, perform such other services, either for his employer or for his own account, as under any construction of the law do constitute such practice.

N.Y. County 186 (1920) (emphasis added); accord, N.Y. County 400 (1951); N.Y. City 636 (1943); N.Y. City 499 (1939); N.Y. City 423 (1937 and see N.Y. City 82-72 (1983).

The danger that an unsuspecting member of the public or even other lawyers may be misled as the status of a disbarred lawyer who is employed by a law firm is too grave to ignore. Moreover, such employment, especially for the purposes stated in the present inquiry, runs counter to the intent of the order imposing discipline. It is always the lawyer’s duty to uphold the orders of a court and to avoid the appearance of impropriety. Consequently it is the opinion of this Committee that it is improper for a licensed lawyer to employ a disbarred lawyer for any purpose, or in any capacity, related to the practice of law,_8_/ We express no opinion as to whether a disbarred lawyer may be employed in some other capacity such as a process server, messenger, secretary, investigator, etc.

For the reasons stated above, questions (1) and (3) are answered in the negative and question (2) in the affirmative with the caveat stated.

 

October 29, 1985