April 17, 1992
A legal assistant in the employ of a lawyer may, in the course of employment with the lawyer, appear and act as an advocate for a party in administrative agency proceedings as authorized by law.
A lawyer, whose legal assistant in the course of employment with such lawyer acts as an advocate for a party in administrative proceedings, is responsible for ensuring that the conduct of the legal assistant is compatible with the Rules of Professional Conduct.
A lawyer whose legal assistant acts as an advocate in administrative agency proceedings is responsible for the actions as well as the work product of the legal assistant.
References: MRPC 1.2, 1.4, 5.3, 5.4, 5.5; RI-103; MCL 421.31; State Bar v. Galloway, 422 Mich 188 (1985).
A lawyer in general practice is considering hiring a legal assistant whose duties would include screening prospective clients for conflicts of interest, collecting preliminary information about new clients, and handling administrative agency proceedings on behalf of the clients where such nonlawyer participation has been authorized by statute.
The lawyer asks: If a client is a claimant in an administrative agency proceeding which allows nonlawyer representatives to appear on behalf of claimants, may the legal assistant decide whether to take the case and perform the required services as long as the lawyer generally supervises the legal assistant's duties, or must the lawyer become substantively involved in the client's case, reviewing the work product of the legal assistant and controlling strategy and tactics regarding the administrative matter the legal assistant will be handling?
Any inquiry raised concerning the activities of legal assistants or paralegals operating under the supervision of licensed lawyers must be considered with MRPC 5.3 and 5.5. MRPC 5.3 (a) and (b) state:
"With respect to a nonlawyer employed by, retained by, or associated with a lawyer:
"(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
"(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer . . . ."
The comment to MRPC 5.3 states:
"Lawyers generally employ assistants in their practice . . . such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment . . . and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline."
MRPC 5.5(b) states that a lawyer shall not assist a person who is not a member of the State Bar in the performance of activity that constitutes the unauthorized practice of law. The Comment following MRPC 5.5 specifies that MRPC 5.5(b) does not prohibit a lawyer from employing the services of para-professionals and delegating functions to them, so long as the lawyer supervises and retains responsibility for the delegated work. See also, R-1.
In State Bar v. Galloway, 422 Mich 188 (1985), the court held that it is not unauthorized practice of law for nonlawyers to represent persons in proceedings of state administrative agencies if there is explicit statutory authorization for the nonlawyer participation. In MESC cases, the court held that MCL 421.31 was "explicit statutory authority." Thus, a legal assistant would not be engaging in the unauthorized practice of law when handling administrative agency proceedings on behalf of the client where such nonlawyer participation has been authorized by statute as in MESC proceedings.
A prospective client who seeks assistance by contacting a lawyer's office may not be sufficiently knowledgeable to determine whether the services required should be performed by a lawyer or may be competently and legally delivered by a nonlawyer legal assistant. Legal assistants are not subject to state licensure, nor are they subject to the requirements and regulations imposed upon lawyers. Furthermore, a nonlawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of lawyers. Given the parameters set forth in MRPC 5.3 and 5.5, it is clear that a lawyer is ultimately responsible for and therefore, must supervise the legal assistant's performance of duties carried out in connection with providing services to the client.
Since the lawyer is responsible for the employees of the firm, the lawyer is responsible for determining what cases and clients will be accepted by the firm. Substantive decisions concerning whether representation may be ethically undertaken, and business decisions concerning workload, allocation of firm resources, and capabilities of legal assistant employees available for assignment to the prospective client's case, must be made by the lawyer, not the legal assistant. The lawyer must exercise independent professional judgment regarding the complexity of the matter, determine whether there are elements which go beyond the administrative representation that the legal assistant may not be asked to handle, and counsel and communicate with the client regarding the legal assistant's role in the matter. MRPC 1.2(a) and (b), 1.4, 5.4.
Therefore, if the legal assistant is to perform the required services and appear as an advocate at the administrative agency proceeding which allows nonlawyer representatives, the lawyer who supervises the legal assistant must expressly disclose and explain to the client that the legal assistant will not be appearing as a lawyer but only as an advocate as allowed by law. MRPC 1.2, 1.4; RI-103. Furthermore, as required by MRPC 5.3, the lawyer shall make reasonable efforts to ensure that the legal assistant's conduct in representing the client in the administrative proceeding is compatible with the rules of professional conduct and, because the representation arises out of the legal assistant's employment at the law firm, the legal assistant is bound by the rules. Finally, as under MRPC 5.3, the lawyer is responsible for the legal assistant's work product and the lawyer is obligated to generally supervise the legal assistant's activities related to the representation of the client in the agency proceeding.
If after the appropriate disclosure, the client understands and consents to representation by the legal assistant after consultation with the lawyer, and the other obligations pursuant to MRPC 5.3 and 5.5 are met, then the legal assistant may be assigned to perform the required services in representing the client in the administrative proceeding.