Can a Kentucky lawyer send a paralegal or other nonlawyer to appear in court for a client without a supervising lawyer present?

Plain-English summary

The committee read the question as whether a lawyer may use paralegals in the courtroom, and answered no. Paralegals, it noted, are not licensed by the Supreme Court of Kentucky, though a Supreme Court Rule addresses their use.

The opinion worked through the governing rules. SCR 3.020 defines the practice of law broadly to include representation, counsel, or advocacy in or out of court. SCR 3.700 requires a lawyer to ensure that an employed paralegal does not engage in the unauthorized practice of law, and recognizes that a layperson may represent a client before a tribunal only where a court rule or decision authorizes nonlawyer practice. Reviewing the Supreme, Civil, and Criminal Rules of Court, the committee found no provision allowing nonlawyers to appear in court in Kentucky. It acknowledged EC 3-6, which permits a lawyer to delegate tasks to lay staff when the lawyer keeps a direct client relationship, supervises the work, and retains complete professional responsibility, but read that as delegation of work, not courtroom appearance.

The committee relied on its prior opinions (KBA E-142, E-191, and E-227, the last holding a paralegal could not argue a motion in court) and addressed the "motion day" practice: even where calling a case requires little legal skill, it is a proceeding in court, and no rule allows non-lawyers to appear. It pointed out that even law students who have completed two-thirds of their studies and signed a legal-intern oath may appear only with a supervising lawyer personally present (SCR 2.540). Its conclusion: the only person other than a lawyer who may appear in court representing a client is a lawyer.

Currency note

This opinion was issued in 1982 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 Treat this page as historical context, not current guidance.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 paralegal appear in court for a client if the supervising lawyer was not there?

A: No. The committee found no Kentucky court rule authorizing a nonlawyer to appear in court representing a client, so a paralegal could not act in the courtroom without a supervising lawyer.

Q: Does this opinion stop a lawyer from using paralegals at all?

A: No. Citing EC 3-6, the committee recognized that a lawyer may delegate tasks to lay staff when the lawyer keeps a direct relationship with the client, supervises the work, and retains complete professional responsibility; the limit is courtroom appearance.

Q: Did the committee treat routine "motion day" calls differently?

A: No. It reasoned that even when calling a case requires little legal skill, it is still a proceeding in court, and no rule allowed a non-lawyer to appear.

Q: What about a law student intern appearing in court?

A: The opinion noted that even a qualifying law student who signed a legal-intern oath may appear only with the personal appearance and supervision of a Kentucky lawyer in good standing (SCR 2.540).

Background and rules framework

The opinion interprets the unauthorized-practice framework: SCR 3.020 (definition of the practice of law) and SCR 3.700 (a lawyer's duty to keep an employed paralegal from the unauthorized practice of law, and the narrow exception where a court rule authorizes nonlawyer practice), read with EC 3-6 (proper delegation to lay staff under supervision). The modern analogs are Model Rule 5.3 (responsibilities regarding nonlawyer assistants) and Model Rule 5.5 (unauthorized practice of law). The dividing line the committee drew is between supervised back-office work, which is permitted, and appearing in court, which is not.

Citations and references

Rules of Professional Conduct:

• SCR 3.020 (definition of the practice of law)
• SCR 3.700 (paralegals; lawyer's duty to prevent unauthorized practice); modern analogs Model Rules 5.3 and 5.5
• EC 3-6 (proper delegation to lay staff under supervision)
• SCR 2.540 (law-student practice with supervising lawyer present)

Other opinions cited:

• KBA E-142, E-191: prior opinions on lawyers' use of lay staff.
• KBA E-227: a paralegal could not argue a motion in court.

See also

• KBA Ethics Op. E-303: Billing Paralegal and Law-Clerk Time
• KBA Ethics Op. E-308: Paralegal Moving to Opposing Firm

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-266.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-266
Issued: November 1982

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 send a non-lawyer to do anything in a courtroom with respect to the representation of a client without a supervising lawyer present?

Answer:

No.

References:

SCR 3.020; SCR 3.700; EC 3-6; KBA E-142; KBA E-191; KBA E-227; SCR 2.540

OPINION

The question before us is basically "May a lawyer make use of paralegals in the courtroom." This Committee notes at the outset that a paralegal is a relatively new term used in the practice of law. These individuals, both men and women, are not "licensed" by the Supreme Court of Kentucky. However, there is a Supreme Court Rule on the subject matter.

The practice of law in Kentucky is defined under SCR 3.020 as follows:

"The practice or law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor."

Supreme Court Rule 3.700 provides for certain provisions relating to paralegals. Of particular significance is Sub-Rule 1 which provides "a lawyer shall insure that a paralegal in his employment does not engage in the unauthorized practice of law."

In addition Sub-Rule 3 provides in essence that it is not the unauthorized practice of law for a lay person to represent a client before any administrative tribunal or court where the court rule or decision authorizes the practice of non-lawyers. The commentary that expands this section and shows that in certain areas of Federal Regulations a lay person is allowed to appear in court.

This Committee notes that in its review of both the Supreme, Civil and Criminal Rules of Court there is no provision which allows non-lawyers to appear in court in the Commonwealth of Kentucky.

This Committee is cognizant of EC 3-6 which provides as follows:

"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 services more economically and efficiently."

In the past, the Ethics Committee has been called upon to review the use by lawyers of the services of lay people (see KBA-142 and KBA E-191). It was the Ethic Committee's opinion that a paralegal could not argue a motion on behalf of a client in court KBA E-227).

This Committee understands that in the Commonwealth of Kentucky we have historically had a "motion day or motion docket." While it can be said that many of the items placed upon these dockets require no legal skill when the clerk calls the case; it should, nevertheless be emphasized that it is a proceeding in court and there is no rule of court allowing individuals other than lawyers to appear in court in the Commonwealth of Kentucky.

While one could advocate that there are certain cases in which law people (paralegals, legal assistants, secretaries, investigator receptionists and friends) could perform the needed services, they are not lawyers.

It should be specifically noted that law students who have completed 2/3rds of the academic requirements for graduation from an approved law school, and have signed an "oath of legal intern", are not allowed to appear in courts of this state without personal appearance and supervision by a member of good standing of the Bar in this state (SCR 2.540.)

It is our opinion that the Supreme Court Rules in Code of Professional Responsibility clearly dictate that the only person other than a lawyer who may appear in court in the representation of a client is a lawyer.

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.