ETHICS ADVISORY OPINION No. 03-03

Issued June 23, 2003
¶ 1 Issue
: Is it ethical for a lawyer to advertise to provide legal services in Social Security Administration hearings to claimants who have been denied benefits, where nonlawyers are used by the lawyer in providing these services?

¶ 2 Opinion: With due consideration for the rules governing advertising and supervi­sion of nonlawyers assistants, it is not unethical for a lawyer to use nonlawyer para­professionals to provide representation of clients in hearings before a government agency that authorizes nonlawyer representation. In particular, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circum­stances.1
¶ 3 Background: The United States Social Security Administration permits nonlawyers to appear at hearings as representatives of claimants challenging the denial of Social Security benefits. The hearings are evidentiary and require representatives of claimants to offer direct testimony and to cross-examine adverse witnesses. Lawyers who represent claimants for Social Security Administration benefits often use nonlawyer parapro­fessionals to represent the clients in the agency hearings. These lawyers advertise their services in Social Security Administration matters, but commonly do not disclose in the advertisements that the client’s representative at the hearing is normally a nonlawyer paraprofessional.
¶ 4 Analysis: We have been asked whether an advertisement placed by a lawyer to provide legal services in Social Security Administration hearings to claimants who have been denied Social Security benefits must disclose that the lawyer normally uses nonlawyer para­professionals in making appearances for claimants in such hearings.
¶ 5 Advertising Rules. The first step in the analysis is to review the rules governing advertising. First, “[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.”2 But, any advertisement for the lawyer’s legal services must comport with Rule 7.1(a):
A lawyer shall not make a false or misleading communication about the law­yer or the lawyer’s services. A communication is false or misleading if it: (a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.3
As the comment to the Rule emphasizes, “This Rule applies to all communications concerning the lawyer’s services, including advertising materials.”4
¶ 6 Thus, a disclosure concerning the use of paraprofessionals would only be required if it were necessary to make the advertisement “considered as a whole, not materially misleading.” But, lawyers routinely provide legal services through the use of nonlawyer paraprofessionals and, indeed, are encouraged to do so to make legal services affordable to the broadest spectrum of the population. Thus, we conclude that the advertisement in question is not materially misleading if it does not disclose that the services are often provided through nonlawyer paraprofessionals.
¶ 7 Delegation to Nonlawyers. Social Security Administration rules and regulations permit the appearance of nonlawyer representatives for claimants in Social Security Administration hearings challenging the denial of benefits.5 Without such authority, paraprofessionals would ordinarily not be allowed to provide unassisted representation of a client in an evidentiary hearing. Given the Social Security Administration’s authoriza­tion of nonlawyer professionals to appear as representatives of claimants at its hearings, a lawyer does not act unethically in delegating to paralegals the representation of clients at these hearings. However, the lawyer must comply with his supervisory responsibilities under Rule 5.3,6 which permits nonlawyer paraprofessionals to “act for the lawyer in rendition of the lawyer’s professional services.”7 Rule 5.3 requires, however, that the lawyer provide nonlawyer paraprofessionals appropriate supervision and retain responsi­bility for their work.8
¶ 8 Because the definition of the practice of law in Utah is an issue of law, the Com­mittee is without authority to decide what is and what is not the unauthorized practice of law. However, for purposes of this opinion, we assume that it is not the unauthorized practice of law for a lawyer to use nonlawyer para­professionals in administrative hearings as permitted by the agency’s applicable rules and regulations. Therefore, so long as the lawyer adequately supervises the work delegated to the paraprofessional and retains responsibility for the paraprofessional’s work, the lawyer would not violate Utah Rule of Professional Conduct 5.5(b), which prohibits a lawyer from aiding another person in the unauthorized practice of law.9
¶ 9 Consent. A lawyer may not, however, delegate to a nonlawyer parapro­fessional the representation of the client before an agency proceeding such as a Social Security Administration hearing without consulting with the client as required by Rules 1.2 and 1.4 regarding the means of representation of the client.
¶ 10 Rule 1.2 requires that the lawyer discuss with the client the relative advantages and disadvantages of being represented at the hearing by a nonlawyer paraprofessional, as opposed to being represented by a licensed lawyer.10 Rule 1.4(b) requires that this matter be explained to the client to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.11 Therefore, the lawyer must discuss with the client the lawyer’s intention to delegate the representation of the client at the hearing to a paraprofessional. This discussion must be sufficiently in advance of the hearing that the client will not be prejudiced if he decides to change counsel. If the lawyer regularly delegates paraprofessionals to represent clients at Social Security Ad­ministration hearings, the lawyer should discuss with the client at the time of engagement the lawyer’s normal practice of using a nonlawyer paraprofessional as the client’s repre­sentative at the hearing.
¶ 11 It is good practice, although not required by the Utah Rules of Professional Con­duct, that the lawyer enter a written engagement agreement with the client disclosing that a nonlawyer paraprofessional may represent the client at the administrative hearing.12
¶ 12 Summary: It is not unethical for a lawyer to advertise to provide representation of claimants denied benefits in Social Security Administration hearings, so long as the advertisement is not false or misleading and otherwise complies with Rules 7.1 and 7.2 of the Utah Rules of Professional Conduct. If an administrative agency, such as the U.S. Social Security Administration, authorizes representation of parties in administrative hearings by nonlawyer representatives, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in such hearings, so long as the paraprofessional is adequately trained and supervised by the lawyer and the lawyer retains responsibility for the work.
¶ 13 If the lawyer ordinarily provides representation of clients in Social Security Ad­ministration hearings using nonlawyer paraprofessionals, the lawyer’s advertisement is not false or misleading solely because the lawyer’s use of nonlawyer paraprofessionals in providing these services is not disclosed in the advertisement. Rule 1.2 requires that the lawyer discuss with the client the objectives of the representation and the means by which the objectives will be pursued. The lawyer should discuss with the client at the initial stages the lawyer’s intention to use a nonlawyer parapro­fessional as the client’s represen­tative at the hearing. Rule 1.4(b) requires that the lawyer explain the advantages and disadvantages of the representation of the client in the hearing by a nonlawyer para­professional supervised by the lawyer to an extent reasonably necessary to enable the client to make an informed decision regarding who will appear at the hearing as the client’s representative. Under the assumptions set forth in this opinion, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances.
Footnotes
1.It is not the province of the Committee to decide what is the unauthorized practice of law. This is an issue of law for the courts. In rendering this opinion, we have assumed that it is not the unauthorized practice of law for a lawyer to use non-lawyer paraprofessionals in federal administra­tive hearings as permitted by the federal agency’s applicable rules. See, e.g., Sperry v. State ex rel. Florida Bar, 373 U.S. 379, 385-402 (1963); see also In re: Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990).
2.Utah Rules of Professional Conduct 7.2(a) (2003).
3.Id., Rule 7.1(a).
4.Id., Rule 7.1, cmt. Also, under the current rules, “A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.” Id. Rule 7.2(b). We note that this provision does not appear in the current ABA Model Rules of Professional Conduct that resulted from the ABA’s Ethics 2000 project. Although Utah may ultimately adopt this deletion as it considers the new ABA Model Rules, Rule 7.2(b) is still a requirement for attorney advertising in Utah. Also, under current Utah Rule 7.2(d): “Any communication made pursuant to this Rule shall include the name of at least one lawyer respon­sible for its content.” The new ABA Rule 7.2(d) broadens this to “at least one lawyer or law firm.”
5.A number of administrative agencies permit representation of parties in administrative hear­ings by nonlawyers. The analysis in this opinion is equally applicable to hearings before such agencies.
6.“A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to insure that the person’s conduct is compatible with the professional obligations of the lawyer.” Utah Rules of Professional Conduct 5.3(b) (2003).
7.Id., Rule 5.3, cmt.
8.See generally Utah Ethics Advisory Op. 99-02, at 1-2, 1999 WL 260749, http://www.­utahbar.org/opinions (Utah St. Bar). There, we stated that determination of “adequate supervision” of a nonlawyer assistant requires a case-by-case analysis. At a minimum, the nonlawyer assistants must be appropriately trained and their performance of professional services monitored and evaluated.
9.“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 5.5, cmt.
10.Under Rule 1.2 provides:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of the representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. . . .
(b) A lawyer may limit the objectives of the representation if the client con­sents after consultation.
Utah Rules of Professional Conduct 1.2 (2003).
11.“A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” Id. Rule 1.4(b).
12.We understand that engagements to represent claimants at Social Security Administration hearings are commonly performed under a contingency-fee agreement. If the lawyer’s services are to be provided for a contingent fee, the agreement must be in writing. Utah Rules of Professional Conduct 1.5(c) (2003). Also, pursuant to 42 U.S.C. § 406(a)(1), “[t]he Commissioner of Social Security may prescribe rules and regulations governing recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants . . . .” The written fee agreement provides an excellent opportunity for the lawyer to memorialize the discussion with the client of the use of a nonlawyer paraprofessional as the client’s representative at the administrative hearing.

Ethics Advisory Opinion No. 99-02

(Approved April 30, 1999)
Issue
: Does a lawyer who negotiates or communicates with an opposing party’s legal assistant, secretary or other non-lawyer representative about substantive matters assist in the unauthorized practice of law under Utah Rule of Professional Conduct 5.5(b)?

Opinion: In general, a lawyer who negotiates or otherwise communicates with a non-lawyer representative on substantive matters affecting the rights of parties to a particular matter is not assisting in the unauthorized practice of law if that representative is supervised by a lawyer as required under Rule 5.3. When the non-lawyer representative is employed in a lawyer’s office, the lawyer communicating with such a representative may presume that the representative is supervised within the requirements of Rule 5.3, unless the lawyer is aware of facts and circumstances that impart knowledge that adequate supervision is lacking.
Analysis: Under Utah Rules of Professional Conduct 5.5(b), “A lawyer shall not . . . [a]ssist any person in the performance of activity that constitutes the unauthorized practice of law.” The Utah Supreme Court has stated that “the practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent.”1The Court continued, “What constitutes the practice of law in any given situation requires a case-by-case decision, and therefore, each case must be evaluated to determine whether the particular acts involved constitute the practice of law.”2
Lawyers often employ non-lawyer assistants, including secretaries, legal assistants, paralegals and student interns. Such assistants may perform a wide array of services, including interviewing clients, scheduling depositions, drafting documents or pleadings, and conducting legal research. Some of these activities might constitute the practice of law in a given situation if the persons performing them were to act independently of any supervision.3However, the Rules of Professional Conduct except such activities from the prohibitions relating to the unauthorized practice of law if the assistants are employed by a lawyer “so long as the lawyer supervises the delegated work and retains responsibility for their work.”4The fact that the practice of law is a licensed profession creates safeguards for the protection of the public. Those safeguards are in place where a paralegal or other non-lawyer acts under a lawyer’s supervision, and they are absent when such supervision is inadequate or non-existent.5
Exceptions to the general rule exist for certain non-lawyer professionals who are licensed and, by the nature of their profession, engage in actions representing clients and negotiating on their behalf. Examples of these are first-party insurance adjusters6and real estate agents.7A lawyer may negotiate or communicate with these representatives without fear of assisting in the unauthorized practice of law. If, however, the lawyer knows that the opposing party is also represented in the matter by a lawyer, communication with the non-lawyer representative is improper without the lawyer’s consent.8
Just as defining what constitutes the practice of law is fact-specific and requires a case-by-case analysis, so does defining what constitutes adequate supervision of a non-lawyer assistant. The issue before the Committee does not directly involve the conduct of a supervising lawyer, but rather an opposing party’s lawyer’s communication with a non-lawyer representative. Where a non-lawyer assistant is employed by a lawyer, an opposing lawyer communicating with that assistant may presume that the assistant is supervised within the requirements of Rule 5.3. The presumption may be overcome where the communicating lawyer is aware of facts and circumstances indicating that adequate supervision is lacking. In that case, counsel may indeed be assisting in the unauthorized practice of law in violation of Rule 5.5(b). The appropriate level of supervision necessary to insure that the representative is not engaging in the unauthorized practice of law is fact-specific and will vary from case to case.
Finally, lawyers employing a disbarred or suspended lawyer as a paralegal should take special care to ensure adequate supervision. Because such an individual has had significant legal training and experience, there may be a tendency for him to engage in conduct that is not properly supervised and, therefore, constitutes the unauthorized practice of law.
Footnotes
1.Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995).
2.Id. at 870.
3.See Board of Commissioners v. Peterson, 937 P.2d 1263 (Utah 1997).
4.See Rule 5.5 cmt., and Rule 5.3 cmt.
5.Peterson, 937 P.2d at 1269.
6.Utah Code Ann. §§ 31A-26-101 to -311 (1999).
7.Utah Code Ann. §§ 61-2-1 to -24 (1997 & Supp. 1998).
8.See Utah Rules of Professional Conduct 4.2; Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar).

Ethics Advisory Opinion No. 96-06

(Approved July 3, 1996)
Issue:
What are the ethical obligations if an attorney undertakes representation of a client when the attorney is not able to communicate directly with the client in a language clearly understood by that client?

Opinion: An attorney need not have any personal knowledge of language skills relating to the language ability of the client. It is necessary, however, for an attorney to be able to communicate adequately with the client.1Therefore, consideration should be given to language impediments that would materially affect the attorney’s ability to communicate adequately in the specific circumstances of the client’s case. The method by which this must be done will depend upon the circumstances of each situation.2
Discussion: A lawyer must be sensitive to the non-English or limited English-speaking client’s communication difficulties in explaining legal problems and in understanding the legal advice to be provided by the lawyer. A lawyer must also be sensitive to the lawyer’s limitations in understanding communications that come from a non-English or limited English-speaking client. Such sensitivity is an important aspect of attorney competence, as well as other duties and obligations of attorneys requiring communication with clients. In this context, a lawyer must also be sensitive to the limited communication abilities of hearing-impaired or speech-impaired clients.
An attorney must have or must acquire sufficient time, resources and ability to apply the sufficient learning, skill and diligence necessary to discharge the duties arising from the attorney-client relationship.3However, the inability to communicate directly with the client in a language clearly understood by the client does not always preclude an attorney from discharging such duties. Clearly, a client has the right to retain the services of an attorney, knowing that direct communication with that particular attorney may be limited or impossible. Also, clearly, difficulty in communication can occur even between those who speak the same language.4
It is the responsibility of any attorney to gather all of the relevant facts, undertake reasonable research in an effort to ascertain legal principles and make an informed decision as to a course of conduct based upon an intelligent assessment of the client’s problems. A language barrier does not reduce the attorney’s duty to communicate adequately with the client, as required by Rule 1.4. If direct communication in a language clearly understood by the client is not possible, the attorney must take into account the fact that means other than direct communication will be required to discuss the client’s case and to meet the attorney’s responsibilities. The means by which an attorney may do this are varied.
On any matter that requires client understanding, the attorney must take all reasonable steps to insure that the client comprehends the legal concepts involved and the advice given by the attorney. The attorney must take all reasonable steps to insure that the attorney understands what the client is saying, so that the attorney can make intelligent judgments about the case and so that the client can make informed decisions. If the attorney cannot communicate fluently in the client’s own language, the attorney should communicate through an interpreter skilled in the client’s particular language or dialect. The attorney may accomplish this by associating with a bilingual attorney who can assist with the language problem or by working with an employee or staff member who can assist the attorney with the language problem. However, an attorney must be cautious in insuring that the attorney and client are communicating with each other through the interpreter, rather than the interpreter giving legal advice independent of the attorney. To allow such a result would be to assist in the unauthorized practice of law in violation of Rule 5.5(b).
On any matter that requires the use of an interpreter, the attorney must take all reasonable steps to insure that other ethical considerations such as client confidentiality and conflict of interest are addressed. For example, the interpreter should have a clear understanding of the obligation to keep the client’s communications confidential. An attorney should use care in selecting an interpreter to insure that the interpreter does not have a personal interest in the outcome of litigation. Attorneys are cautioned that use of the client’s close friends and family members may often give rise to such potential problems under Rules 1.6 and 1.7.
Attorneys should also be aware of the issue of whether there would be a waiver of the attorney-client privilege when a non-employee interpreter is used and should review the law governing this issue.5
Finally, attorneys should be sensitive to the possibility that non-English speaking clients may not readily understand legal principles described by the attorney, because the non-English speaking client may interpret communications based on a different social and cultural foundation than that assumed by the attorney. Attorneys should, therefore, take greater care in explaining complex legal communications to clients who are non-English speaking, because the client may have no social or cultural background or understanding of the United States, so as to put the attorney’s communications into proper context.
It should be noted that the attorney may generally bill the client for interpreter services, so long as the attorney acts consistently with Rule 1.5. There are some exceptions to this, such as representation as appointed counsel for an indigent criminal defendant, and the Americans with Disabilities Act may require that attorneys provide interpreter services for hearing-impaired clients free of charge.
Footnotes
1.Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
Utah Rules of Professional Conduct 1.4.
2.The analysis and general conclusion of this opinion apply as well to dealing with clients who are speech- or hearing-impaired.
3. Id. Rules 1.1, 1.3.
4.See Cal. St. Bar Comm. on Prof. Responsibility and Conduct, Formal Op. 1984-77, 1984 WL 5101; see also Assoc. of Bar of N.Y.C. Comm. on Prof. and Jud. Ethics, Formal Op. 1995-12, 1995 WL 607777.
5. Whether the privilege would be waived in any particular set of circumstances is a question of law and, therefore, beyond the scope of this opinion.