Ethics Opinion

Opinion No. 73-2

February 1973

Summary: A lawyer may employ a non-lawyer assistant to draft documents and to perform other routine work under his personal supervision; but he may not compensate the non-lawyer by sharing fees on a percentage basis, nor may the non-lawyer be listed on the letterhead of the lawyer.
Facts: Attorney A proposes to employ Mrs. B, who is not a lawyer but who has many years of experience working as an assistant to another attorney. It is proposed that she will prepare probate court pleadings, inventories and accounts; prepare state and federal tax returns; assist in various real estate and corporate matters; and perform similar or related functions under the direct supervision of Attorney A. She is to be compensated in accordance with the amount of work she undertakes, either at an hourly rate or "a sharing arrangement on a percentage basis." She will consult with clients from time to time in connection with her work. Attorney A wishes to list her name on his professional stationery, with identification of her as "probate assistant" or "administrative assistant."

Discussion: As stated in ABA Ethical Consideration EC 3-6: "A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation 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. This delegation enables a lawyer to render legal service more economically and efficiently."
It will be proper for the non-lawyer assistant to consult with clients to obtain or convey information, but of course care must be taken that she does not give legal advice to clients of the lawyer, and that clients are not led to believe that she is a lawyer.
It would be improper for the lawyer to compensate Mrs. B by sharing fees with her on a percentage basis. Disciplinary Rule DR 3-102 clearly forbids such an arrangement; see also ABA Formal Opinion No. 303. Of course she may be paid on an hourly basis, taking into account the degree of responsibility which she assumes, if her compensation is in no way directly contingent upon the fees received by the lawyer.
In the circumstances described, the lawyer should take care to ensure that Mrs. B does not solicit legal work from others on his behalf or appear to do so.
With respect to identification of Mrs. B on the professional stationery or letterhead of the lawyer, it seems clear that a non-lawyer may not be listed on the stationery of a lawyer or law firm, even with appropriate identification of status. Disciplinary Rule DR 2-102(A)(4); ABA Informal Opinions 619, 820, 845.
If Mrs. B engages in correspondence with others, using the stationery of the attorney, she should identify herself by inserting an appropriate title under her signature, such as "Administrative Assistant."

Permission to publish granted by the Board of Delegates, 1973. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.