By David C. Carr
The Simpsons lawyer Lionel Hutz wisely observed that “the law books not only make the office look good, they are chock full of useful legal tidbits.”[1]
Of course, many of us no longer have bookshelves, just a computer and piles of old law books scattered around the office, mostly for nostalgia. But Hutz’s dictum remains true: there are lots of useful legal tidbits out there, accessible through your computer or even in books.
Among the most useful recent legal tidbits is a recent ethics opinions from the American Bar Association (ABA), colorfully titled Formal Opinion 506 June 7, 2023: Responsibilities Regarding Non-lawyer Assistants.[2]
There was a time when ABA opinions were rather less useful. Before California adopted its much-modified version of the ABA Model Rules, ABA Rules and Opinions were regarded as useful persuasive authority on issues “not fully addressed” by the California Rules of Professional Conduct:
In awarding sanctions against appellants, the trial court in this case relied on the American Bar Association (ABA) Formal Ethics Opinion No. 92-368 (Nov. 10, 1992). fn. 4 However, the ABA Model Rules of Professional Conduct discussed in that opinion do not establish ethical standards in California, as they have not been adopted in California and have no legal force of their own. [citations.) Rule 1-100(A), paragraph 3 of the California Rules of Professional Conduct provides: “The prohibition of certain conduct in these rules is not exclusive. Members are also bound by applicable law including the State Bar Act (Bus. & Prof. Code, § 6000 et seq.) and opinions of California courts. Although not binding, opinions of ethics committees in California should be consulted by members for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.” Thus, the ABA Model Rules of Professional Conduct may be considered as a collateral source, particularly in areas where there is no direct authority in California and there is no conflict with the public policy of California.
WPS, Inc. v. State Fund (2000) 70 Cal. App. 4th 648, 656. To illustrate the full circle, consider that the advertent disclosure rule that was at issue in State Fund was adopted as a judicial rule from the ABA Model Rules but eventually made its way into our new California rules in November 2018 as California Rule of Professional Conduct 4.4. But our Rules are still California-centric: it may be an ABA chassis, but this vehicle has a motor that is mainly black letter California ethics law on many important issues. Ethics opinions from other jurisdictions, like the ABA, a private organization must be scrutinized closely for differences with California law. In many ways, we are still the Great Exception.
Happily, Formal Opinion 506 is consistent with California law and an important exposition on a Rule that is new to California, Rule 5.3.[3] An important rule, too, since it took the duty of supervising non-lawyers assistants, previously buried in California’s rules and case law regarding competence, into the light. One of the reasons the 2018 Rules revision was a good thing.
The Opinion’s digest states:
A lawyer may train and supervise a non-lawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a non-lawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.
This is a fertile area for State Bar complaints. Solo and small firm lawyers, “people” lawyers, have been using non-lawyer assistants for years to keep costs down, especially in areas like personal injury that lend themselves to a “commoditized” approach to providing legal services. We have seen entire law practices run by non-lawyers in many areas of the law and sometimes serious misconduct resulting from the lawyer’s abdication of the duty to supervise in whole or in part (for a worst-case scenario, see In the Matter of Steele (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 708, 1997 WL 438845.)
ABA formal opinions can be useful legal tidbits. But for California lawyers, the formal ethics opinions produced by the State Bar’s Standing Committee on Professional Responsibility and Conduct are uber-tidbits that go beyond useful to essential. Their special status is even noted in the California Rules of Professional Conduct Rule 1.0, comment 4. This is on website that should be saved on every browser https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Opinions.
[1] The Simpson’s Episode 23, 01/10/91 “Bart Gets Hit By a Car” YouTube https://youtu.be/K3G087IgWwU
[2] https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-506.pdf
[3] If by new, you mean less than five years old.