Can a North Carolina lawyer send a non-lawyer staff member to a calendar call to tell the court about a scheduling conflict?

Plain-English summary

A solo criminal defense lawyer who frequently had cases set at the same time in different courts asked whether he could send a non-lawyer staff member to a routine calendar call or administrative status call to report his whereabouts and scheduling conflict, without assisting the unauthorized practice of law.

The opinion answered yes, with a limit: the non-lawyer must merely provide the court with information and must not request or argue for any particular action. Rule 5.5(b) barred a lawyer from assisting a non-member of the bar in the unauthorized practice of law, and North Carolina statutes (G.S. section 84-4 and related provisions) reserve appearing as counsel to licensed lawyers, while G.S. section 1-11 allowed a party to appear in person or by attorney. The committee concluded that informing the court of a lawyer's conflicting commitment is not assisting the unauthorized practice of law; in response, the court may on its own motion decide whether a continuance or other action is appropriate.

The opinion added two limits drawn from Rule 5.3, the lawyer's duty to supervise non-lawyer assistants: the lawyer should rely on a non-lawyer to notify the court only when necessary, and must ensure the assistant complies with court rules on decorum and attire. The committee cited People v. Alexander, which distinguished a clerk "managing" litigation from a clerk simply apprising the court of an employer's inability to be present.

Currency note

This opinion was issued in 2001, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect (the unauthorized-practice rule was then Rule 5.5(b) of the Revised Rules). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a paralegal go to a calendar call to report the lawyer's conflict?

A: Yes. The opinion permitted a non-lawyer to inform the court of the lawyer's scheduling conflict, provided the non-lawyer did not request or argue for any action by the court.

Q: Where is the line between reporting and practicing law?

A: The opinion drew the line at advocacy: relaying information about the lawyer's availability is permitted, but requesting or arguing for a particular ruling is not. It cited People v. Alexander for the distinction between "managing" litigation and apprising the court of an absence.

Q: What supervision did the lawyer owe?

A: Under Rule 5.3, the opinion required the lawyer to use a non-lawyer for this only when necessary and to ensure the assistant followed court rules on decorum and attire.

Background and rules framework

The opinion applied North Carolina Rule 5.5(b) (assisting the unauthorized practice of law), the analogue to Model Rule 5.5, and Rule 5.3 (responsibilities regarding nonlawyer assistance), the analogue to Model Rule 5.3. It relied on the statutes governing who may appear as counsel, including G.S. sections 1-11, 84-2.1, 84-4, and 84-36, and on People v. Alexander.

Citations and references

Rules of Professional Conduct:

• MR 5.5 (unauthorized practice of law) / NC Rule 5.5(b)
• MR 5.3 (responsibilities regarding nonlawyer assistance) / NC Rule 5.3

Statutes:

• N.C. Gen. Stat. sections 1-11, 84-2.1, 84-4, 84-36 (appearance as counsel)

Cases:

• People v. Alexander, 202 N.E.2d 841 (Ill. App. Ct. 1964), clerk apprising court of an employer's absence is not unauthorized practice

See also

• CBA Formal Op. 79: Nonlawyers at Depositions
• ABA Formal Op. 506: Nonlawyer Assistants & Intake
• NC State Bar 2002 FEO 9: Nonlawyer at a Closing

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2000-formal-ethics-opinion-10/

Original opinion text

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

Inquiry:

Attorney A is a criminal defense lawyer in a solo practice. He frequently has cases on the calendar simultaneously in juvenile court, district court, superior court, and administrative court. When a client's case is in court for a routine calendar call or an administrative status calendar call, Attorney A would like to send a non-lawyer member of his staff to the hearing to report to the court on his whereabouts and scheduling conflict. May Attorney A do so without violating the prohibition on assisting the unauthorized practice of law?

Opinion:

Yes, provided the nonlawyer employee is merely providing the court with information and does not request or argue for a particular action by the court.

Rule 5.5(b) prohibits a lawyer from assisting a person who is not a member of the bar in the performance of any activity that constitutes the unauthorized practice of law. G.S. section 1-11 provides that, "A party may appear either in person or by attorney in actions or proceedings in which he is interested." G.S. section 84-4 permits only licensed North Carolina lawyers "to appear as attorney or counselor at law in any action or proceeding before any judicial body." See also G.S. sections 84-2.1, 84-4, and 84-36. Nevertheless, when a lawyer has a conflicting commitment to appear in another court or when another legitimate conflict prohibits a lawyer's appearance in court for a client, the lawyer may send a nonlawyer employee to the court to inform the court of the situation. This is not assisting in the unauthorized practice of law. In response to information about a lawyer's availability, the court may, on its own motion, determine that a continuance or other action is appropriate. A lawyer should rely on a nonlawyer to notify the court of a scheduling conflict only when necessary. Moreover, Rule 5.3 requires a lawyer who supervises a non-lawyer assistant to make reasonable efforts to ensure that the non-lawyer's conduct is compatible with the professional obligations of the lawyer. If a nonlawyer is present in court to provide information about the lawyer's scheduling conflict, the duty of supervision includes insuring that the assistant complies with court rules on decorum and attire. Endnote 1. See People v. Alexander, 202 N.E. 2d 841 (Appellate Court of IL. 1964): "We agree with the trial judge that clerks should not be permitted to make motions or participate in other proceedings which can be considered as 'managing' the litigation. However, if apprising the court of an employer's engagement or inability to be present constitutes the making of a motion, we must hold that clerks may make such motions...without being guilty of the unauthorized practice of law.