LEO: Nonlawyer Employee: Use of for Soliciting  LE Op. 1290

 

Nonlawyer Employee: Use of for Soliciting Prospective Clients.

 

October 25, 1989

 

You have asked the Committee to consider the propriety of a lawyer or law

firm permitting a nonlawyer employee to contact prospective collection

clients, explain the law firm's services and recommend the placement of

bad accounts for collection by the firm. For the purposes of this opinion,

you have asked the Committee to assume the nonlawyer employee otherwise

conforms to the same standards of conduct that would be expected of an

attorney and assume that the nonlawyer employee will receive no additional

compensation for this service and performs the same in his/her usual

course of business.

 

The appropriate and controlling rules relative to your inquiry are DR:2-

103(D), DR:3-104(A)(1), (C) and (E). Disciplinary Rule 2-103(D) provides

in part:

 

A lawyer shall not compensate or give anything of value to a person or

organization to recommend or secure his employment by a client, or as a

reward for having made a recommendation resulting in his employment by a

client, except that he may pay for a public communications permitted by

DR:2-101 ....

 

A lawyer or law firm may employ nonlawyer personnel to perform certain

delegated functions under the direct supervision of a licensed attorney

which would not constitute unauthorized practice of law and, as such, the

lawyer or law firm must exercise a high standard of care to assure

compliance by the nonlawyer personnel with the applicable provisions of

the Code of Professional Responsibility. Nevertheless, the initial and

continuing relationship with the client is the employing attorney's

responsibility ( DR:3-104(A), (C). In addition, a lawyer or law firm

shall not permit nonlawyer personnel to communicate with clients or the

public, including lawyers outside the firm, without first disclosing their

nonlawyer status. (See DR:3-104(E))

 

Notwithstanding DR:3-104(A), this Committee believes that DR:2-103(A)

does not intend for solicitation of employment from a

nonlawyer/prospective client, by in-person communication, as one of the

permissive delegable activities a nonlawyer/employee may perform under the

supervision of his employer/lawyer/supervisor. The Committee would opine

that under the present reading of DR:2-103, it would be inconsistent for

the rule to permit a nonlawyer to engage in in-person solicitation on

behalf of his/her employer/private practitioner as part of his/her regular

duties or if it is part of the nonlawyer's job description pursuant to

DR:2-103(D). Regardless of compliance with all other provisions of the

Code enumerated in DR:2-103 and DR:3-104, and regardless of the

frequency of such activity, if the nonlawyer/employee receives

compensation in exchange for performing the in-person solicitation, the

lawyer or law firm employing such nonlawyer has committed a violation of

DR:2-103(D). (See also Ohralik v. Ohio State Bar Association, 436 U.S.

447 (1978)) The Committee further cautions that a lawyer may be charged

with misconduct by the appropriate disciplinary committee if it is

determined that he has circumvented a Disciplinary Rule through the in-

person solicitation activities of his nonlawyer employee. (See DR:1-102(

A)(2))

 

Committee Opinion October 25, 1989