What are the ethical ramifications for attorneys where paralegals or other non-attorney persons make appearances for these attorneys at docket soundings held in open court for the purpose of scheduling cases for trial at the next session of court.
This office has no jurisdiction to render opinions relative to non-attorneys. However, attorneys who aid in the unauthorized practice of law are guilty of an ethical violation and are subject to discipline. Specifically, DR 3-101 states:
DR 3-101 Aiding Unauthorized Practice of Law
(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.
(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
The disciplinary rule acknowledges that a lawyer may delegate certain tasks to lay employees. EC 3-6 states:
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.
The question presented here is, therefore, whether a lay employee may appear at docket calls on behalf of the attorney. If they cannot, any attorney permitting them to do so would violate DR 3-101.
It is generally true that state law ultimately determines the proper scope of non-lawyer assistants in regard to the unauthorized practice of law. See, for instance, People v. Alexander, 202 N.E.2d 841 (Ill. app. 1964); In Re: Easler, 269 S.E.2d 765 (SC 1980).
The relevant Tennessee statutes are T.C.A. Sec. 23-3-101 et seq., T.C.A. Sec. 23-3-103(a), prohibits the unauthorized practice of law:
No person shall engage in the 'practice of law' or do 'law business', or both, as defined in Sec. 23-3-101, unless he shall have been duly licensed therefor, and while his license therefor is in full force and effect, nor shall any association or corporation engage in the 'practice of law' or do 'law business', or both, as defined in Sec. 23-3-101. However, non-resident attorneys associated with attorneys in this state in any case pending here who do not desire to practice regularly in this state will be allowed, as a matter of courtesy, to appear in such case in which they may be thus employed without procuring a license, when introduced to the court by a member in good standing of the Tennessee bar if all the courts of the resident state of the non-resident attorney grant a similar courtesy to attorneys licensed in this state.
Also relevant here is the statutory definition of "practice of law." T.C.A. Sec. 23-3-101(a) states:
The 'practice of law' is defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.
The above statutes would appear to prohibit non-lawyers from appearing as an advocate in a representative capacity in any court proceeding. The Board has also previously opined that any appearance before a tribunal in a representative capacity constitutes the practice of law. [See Opinion 83-F-44(a).] When an individual appears at docket calls and answers that docket call on behalf of another, he/she is acting in a representative capacity. Any attorney who assists in this appearance or allows a non-lawyer to appear for him or his clients would then be assisting in the unauthorized practice of law and violating the disciplinary rules.
This 6th day of May, 1985.
Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD