Can a Kentucky lawyer send a nonlawyer instead of a lawyer to sit in on the lawyer's own client's deposition?

Plain-English summary

The committee considered whether a lawyer who receives notice of the client's deposition may send a nonlawyer to observe and take notes, assuming the lawyer is not sending another firm lawyer or, with client consent, outside counsel. It answered no.

The committee noted that a lawyer may of course send another member of the firm, or with the client's consent employ outside counsel to accompany the client. Absent that, it concluded the lawyer who represents the client should attend the client's deposition. Sending a nonlawyer in a lawyer's place risks prejudicing or damaging the client under DR 7-101(A)(3) and, more directly, violates DR 6-101(A)(3), which provides that "a lawyer shall not neglect a legal matter entrusted to him." Although a lawyer may sometimes choose not to attend the depositions of witnesses, the committee held that because the client entrusted the matter to the lawyer, the lawyer (or a firm lawyer) must at least observe the taking of the client's deposition in all cases.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer send a paralegal to cover the client's deposition?

A: No. The committee held that a nonlawyer may not stand in for the lawyer at the client's own deposition; a lawyer (the responsible lawyer or another firm lawyer) must at least observe it.

Q: Could another lawyer attend instead of the lawyer of record?

A: Yes. The committee said a lawyer may send another member of the firm, or with the client's consent employ outside counsel to accompany the client to the deposition.

Q: Why was sending a nonlawyer treated as an ethics violation?

A: The committee read it as neglect of a matter entrusted to the lawyer under DR 6-101(A)(3), and as risking prejudice to the client under DR 7-101(A)(3).

Background and rules framework

The opinion applies DR 6-101(A)(3) (a lawyer shall not neglect a matter entrusted to him) and DR 7-101(A)(3) (a lawyer shall not prejudice or damage the client). The modern analogs are Model Rule 1.3 (diligence) and Model Rule 5.3 (responsibilities regarding nonlawyer assistants). The committee treated attending the client's own deposition as a core lawyer function that cannot be delegated to a nonlawyer.

Citations and references

Rules of Professional Conduct:

• DR 6-101(A)(3) (no neglect of an entrusted matter); modern analog Model Rule 1.3
• DR 7-101(A)(3) (no prejudice or damage to the client); related Model Rule 5.3 (nonlawyer assistants)

See also

• KBA Ethics Op. E-266: Nonlawyers Appearing in Court
• KBA Ethics Op. E-303: Billing Paralegal and Law-Clerk Time

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-251.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-251
Issued: September 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer who receives a notice of taking of the deposition of his client send a nonlawyer to observe the deposition and make notes?

Answer:

No.

References:

DR 6-1O1(A)(3), DR 7-1O1(A)(3)

OPINION

It is assumed that the lawyer in this case desires to send a nonlawyer to attend the deposition rather than a member of the law firm or another lawyer with consent of his client.

Obviously, a lawyer may very well send another member of the law firm to the taking of the deposition of his client and/or with the consent of his client employ counsel outside of the firm to accompany the client to the deposition.

Absence of the above, it is the feeling of the Ethics Committee that a lawyer who represents a client should attend the deposition of the client. The fact that the lawyer may very well be prejudicing or damaging his client under DR 7-101(A)(3) is a direct violation of the Code. However, it is the feeling of this Committee that it is a direct violation of DR 6-101(A)(3) which provides as follows: "A lawyer shall not neglect a legal matter entrusted to him."

Although a lawyer may choose not to attend depositions of witnesses from time to time, it is the feeling of this Committee that the client has entrusted the legal matter to the lawyer, and that the lawyer (or a member of the law firm) must at least observe the taking of the client's deposition in all cases.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.