Can a lawyer hire a nonlawyer to organize and speak at estate-planning seminars, and what can the nonlawyer say or do?

Plain-English summary

The opinion addresses an estate-planning lawyer who wants to hire a nonlawyer independent contractor to organize and speak at educational seminars about wills, trusts, and estates. It works through five inquiries and draws the line between general legal education, which a nonlawyer may provide, and the practice of law, which the nonlawyer may not.

On the threshold question, the opinion concludes a lawyer may hire the nonlawyer to present general information, because giving educational information is not itself the practice of law. Giving legal advice is the practice of law (N.C.G.S. 84-1), so the nonlawyer may not exercise independent legal judgment or advise attendees about their legal rights or responsibilities. The lawyer must supervise enough to ensure the nonlawyer does not give legal advice (Rule 5.5(d)), and the opinion notes the seminar format makes that hard unless the lawyer is present, so a lawyer who allows an unsupervised seminar assumes the risk of assisting the unauthorized practice of law.

The remaining inquiries apply that line. The nonlawyer may answer audience questions only if the answer is general information; questions requiring independent legal judgment or specific advice are off limits (Rule 5.5(d)). The nonlawyer may not meet individually with attendees to identify which of the lawyer's services would benefit them, because matching services to an individual's situation requires legal judgment and is the practice of law, which Rule 5.5(a) bars the lawyer from assisting. The nonlawyer must disclose the name of the lawyer sponsoring the seminar to avoid misleading attendees (Rule 7.1(a)), and if asked to recommend a lawyer must decline to name a specific one (Rule 7.3(a)). Finally, the lawyer may compensate the nonlawyer per seminar or per hour, but may not tie compensation to the legal fees the presentations generate, because Rule 5.4(a) bars sharing legal fees with a nonlawyer.

In practice

Under the North Carolina rules as they stood at the time of the opinion, a lawyer may use a nonlawyer to deliver general estate-planning education, but conduct that crosses into advising individual attendees about their own legal situation, or into recommending specific legal services, is the practice of law that the lawyer may not assist (Rules 5.5(a) and 5.5(d)). Per the opinion, the lawyer carries the risk if the nonlawyer crosses the line, so the analysis turns on whether the nonlawyer is supplying general information or exercising legal judgment.

Per the opinion, the nonlawyer must name the sponsoring lawyer and may not recommend a specific lawyer to an attendee (Rules 7.1(a), 7.3(a)), and compensation must be structured per seminar or per hour rather than as a share of the legal fees generated (Rule 5.4(a)).

Common questions

Q: Can a lawyer pay a nonlawyer to run estate-planning seminars for the public?

A: Yes, for general education. The opinion concludes a nonlawyer may present general information about wills, trusts, and estates so long as the nonlawyer does not exercise independent legal judgment or give legal advice, and the lawyer supervises enough to prevent that (Rule 5.5(d)).

Q: Can the nonlawyer answer questions from the audience?

A: Only general ones. The opinion concludes the nonlawyer may answer a question that can be addressed with general information about wills, trusts, and estates, but may not answer questions requiring legal judgment or specific advice (Rule 5.5(d)).

Q: Can the nonlawyer meet one-on-one with attendees to suggest the lawyer's services?

A: No. The opinion concludes that determining which legal services would benefit a particular attendee requires independent legal judgment and is the practice of law, which Rule 5.5(a) bars the lawyer from assisting.

Q: How can the lawyer pay the nonlawyer presenter?

A: Per seminar or per hour. The opinion concludes the lawyer may not base the nonlawyer's compensation on the amount of legal fees the presentations generate, because Rule 5.4(a) prohibits sharing legal fees with a nonlawyer, but may pay by number of seminars or hours worked.

Q: Does the nonlawyer have to say who is paying for the seminar?

A: Yes. The opinion concludes the nonlawyer must disclose the name of the sponsoring lawyer to avoid misleading attendees (Rule 7.1(a)), and if asked to recommend a lawyer must reply that he cannot recommend a specific one (Rule 7.3(a)).

Background and rules framework

The opinion applies North Carolina Rule 5.5 (a nonlawyer may not engage in, and a lawyer may not assist, the unauthorized practice of law; Rule 5.5(d) requires supervision of nonlawyers), Rule 5.4(a) (a lawyer may not share legal fees with a nonlawyer), Rule 7.1(a) (no false or misleading communications about the lawyer or the lawyer's services), and Rule 7.3(a) (limits on recommending the lawyer's own employment). These track the corresponding Model Rules. The dividing line throughout is the statutory definition of the practice of law as the giving of legal advice (N.C.G.S. 84-1).

Citations and references

Rules of Professional Conduct:

• MR 5.5 / NC Rule 5.5(a), (d) (unauthorized practice of law; supervision of nonlawyers)
• MR 5.4 / NC Rule 5.4(a) (sharing legal fees with a nonlawyer)
• MR 7.1 / NC Rule 7.1(a) (false or misleading communications)
• MR 7.3 / NC Rule 7.3(a) (recommending the lawyer's employment)

Statutes:

• N.C.G.S. 84-1 (giving legal advice is the practice of law)

See also

• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-6/

Original opinion text

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

Inquiry #1:

May a lawyer hire a nonlawyer independent contractor to organize and speak at educational seminars at which the nonlawyer will present general information about wills, trusts, and estates?

Opinion #1:

Yes. The giving of legal advice is the practice of law. See N.C.G.S. § 84-1 (2004). A nonlawyer may provide educational information about the law to members of the public, so long as the nonlawyer does not exercise independent legal judgment and does not give legal advice or counsel to attendees as to their legal rights or responsibilities, or the legal rights or responsibilities of others. To avoid assisting in the unauthorized practice of law, the lawyer must exercise the appropriate level of supervision to ensure that the nonlawyer is not giving legal advice. See Rule 5.5(d).

The structure of the educational legal seminars makes it difficult to envision how a lawyer can ensure that the nonlawyer does not give legal advice, unless the lawyer is actually present. Therefore, a lawyer who hires and allows a nonlawyer to conduct an unsupervised educational seminar assumes the risk that he may assist in the unauthorized practice of law.

Inquiry #2:

If the answer to Inquiry #1 is yes, may the nonlawyer respond to questions from members of the seminar audience?

Opinion #2:

No, unless the question can be answered with general information about wills, trusts, and estates. The nonlawyer may not answer questions that require the exercise of independent legal judgment or the giving of specific legal advice. The hiring lawyer assumes the risk that the nonlawyer will cross the line between answering general informational questions and giving legal advice. See Rule 5.5(d).

Inquiry #3:

If the answer to Inquiry # 1 is yes, may the nonlawyer meet individually with seminar attendees, who request such a meeting, and inform the attendees about services that the lawyer provides that are relevant to the attendee's situation?

Opinion #3:

No. The determination of what legal services might benefit an individual attendee requires the exercise of independent legal judgment and is therefore the practice of law. See N.C.G.S. § 84-.1 (2004). The lawyer is prohibited by Rule 5.5(a) from assisting such conduct.

Inquiry #4:

Is the nonlawyer required to disclose to the seminar attendees the name of the lawyer who is paying for him to speak at the seminar?

Opinion #4:

Yes. The nonlawyer must disclose the name of the lawyer sponsoring the seminar in order to avoid misleading the seminar attendees in violation of Rule 7.1(a). However, if a seminar attendee asks the nonlawyer to recommend a lawyer, the nonlawyer should reply that he cannot recommend a specific lawyer. See Rule 7.3(a).

Inquiry #5:

If the answer to Inquiry #1 is yes, may the lawyer compensate the nonlawyer per seminar or per hour?

Opinion #5:

Rule 5.4(a) prohibits a lawyer from sharing legal fees with a nonlawyer except in certain circumstances not relevant to this inquiry. Therefore, it would be inappropriate to compensate the nonlawyer based on the amount of legal fees generated by the nonlawyer's presentation of educational seminars. However, the hiring lawyer may compensate the nonlawyer based either on the number of seminars conducted by the nonlawyer or the number of hours worked by the nonlawyer.