UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 96-13
Lawyer is considering using the services of an independent or "free-lance" paralegal assistance service to assist him is probating estates. The lawyer will pay a fee to the paralegal service and will bill the clients for services provided, including the services of the paralegal organization.
Question:
Under the South Carolina Rules of Professional Conduct, may the lawyer employ the services of the paralegal assistance organization?
Summary:
A lawyer may employ the services of an independent paralegal assistance service provided the lawyer adequately supervises the work of the paralegals and remains responsible for their work product. In billing for the paralegal organization's services, the lawyer should comply with his fiduciary duty to disclose to his clients the basis of his fee and expenses.
Opinion:
Rule 5.5(b) of the South Carolina Rules of Professional Conduct states that a lawyer shall not "[a]ssist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law." The comment to Rule 5.5 states:
Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Rule 5.3 sets forth in somewhat more detail the obligations of a lawyer regarding the activities of non-lawyers, including conflicts of interest and preservation of client confidences.
The text of S.C. Rule 5.3 and its accompanying comment make it clear that lawyers may employ independent non-lawyers. Rule 5.3 states: "With respect to a non-lawyer employed or retained by or associated with a lawyer." (emphasis added). The comment to Rule 5.3 states: Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. (emphasis added).
The New Jersey Supreme Court has considered the issue of whether lawyers are ethically prohibited from employing independent paralegals because of the difficulty of supervising their work. Rejecting the recommendation of its unauthorized practice committee, the court concluded that lawyers may ethically employ independent paralegals so long as they adequately supervise their work. In re Opinion No. 24 of the Committee on Unauthorized Practice of Law, 607 A.2d 962 (N.J. 1992).
The inquirer has stated that the client will be billed for services provided, including the fee of the paralegal organization. In billing for the paralegal organization's services, the lawyer should comply with his fiduciary obligations regarding full disclosure of billing practices. See ABA, Formal Opinion 93-379.