Can a lawyer have a secretary or other nonlawyer staff file papers and present orders to a judge for signature in divorce or probate matters?

Plain-English summary

The committee was asked whether a lawyer could use a secretary or other lay staff both to file papers at the court clerk's office and to present orders to the court for signature in probate and divorce matters, including temporary orders and some more permanent ones. The question turned on Canon 3 of the Code of Professional Responsibility, which directs a lawyer to assist in preventing the unauthorized practice of law, and Ethical Consideration 3-6, which permits delegating tasks to lay persons if the lawyer keeps a direct client relationship, supervises the work, and retains complete professional responsibility for the work product.

Relying on ABA Formal Opinion 316 (1967), the committee said a lawyer may employ nonlawyers for almost any task except counseling clients about law, engaging directly in the practice of law, or appearing in court or in formal judicial proceedings. Using lay employees to perform ministerial courthouse tasks, such as filing papers and recording deeds, is not objectionable and is a reasonable, economical use of staff.

The committee drew the line at tasks requiring professional judgment. Presenting orders, process, and similar documents to a court will in many instances require professional judgment, for example when a judge asks about temporary alimony or child support amounts, the breadth of injunctive relief, or the sufficiency of service and the regularity of a default judgment. Any attempt by a nonlawyer to answer such inquiries or exercise professional judgment would be the unauthorized practice of law. The committee therefore concluded, without limitation to divorce or probate matters, that it is unethical for an attorney to permit a nonlawyer employee to present pleadings, orders, or other papers to the court for signature or action, and that authorizing such activity aids the unauthorized practice of law.

Currency note

This opinion was issued in 1971, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. Subsequent rule amendments or later opinions, and changes in court practice and the role of paralegals, 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 Treat this page as historical context, not current guidance.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: What courthouse tasks could a nonlawyer perform?

A: The committee said ministerial tasks such as filing papers in the court clerk's office and recording deeds are not objectionable and are a reasonable use of lay personnel under Canon 3.

Q: Why couldn't a secretary present a temporary divorce order to the judge?

A: Because the judge often inquires about matters like the amount of temporary alimony or child support or the breadth of injunctive relief, and answering those calls for professional judgment, which is the unauthorized practice of law when done by a nonlawyer.

Q: Did the limitation apply only to divorce and probate matters?

A: No. The committee held, without limitation to divorce or probate, that it is unethical to let a nonlawyer present pleadings, orders, or other papers to the court for signature or action.

Background and rules framework

The opinion applied Canon 3 of the Code of Professional Responsibility, which directs a lawyer to assist in preventing the unauthorized practice of law, and Ethical Consideration 3-6, which permits delegation of tasks to lay persons under the lawyer's supervision and responsibility. It relied on ABA Standing Committee Formal Opinion 316 (1967) for the scope of permissible nonlawyer employment. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 3 (Code of Professional Responsibility): a lawyer should assist in preventing the unauthorized practice of law.
• Ethical Consideration 3-6 (Code of Professional Responsibility): delegation to lay staff is proper if the lawyer maintains a direct client relationship, supervises the work, and retains complete professional responsibility.

Other opinions cited:

• ABA Standing Committee Formal Opinion 316 (1967): a lawyer may employ nonlawyers for any task except counseling clients on law, practicing law directly, or appearing in court or formal judicial proceedings.

See also

• Okla. Bar Ethics Op. 264: Legal interns clarifying Opinion 260
• Okla. Bar Ethics Op. 117: Nonlawyer handling a case and signing a lawyer's name
• Okla. Bar Ethics Op. 251: Representing a credit bureau on delinquent accounts

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-260/

Original opinion text

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

Adopted March 19, 1971

INQUIRY

The Committee has been asked for an opinion as to the ethical propriety of an attorney utilizing his secretary or other lay personnel in his office for the purpose of filing papers at the Court Clerk's office and also for the purpose of presenting to the Court orders for signature in probate and divorce matters. The inquiry indicates that the orders in the divorce cases are principally in the nature of temporary orders, but acknowledges that probably other orders of a more permanent nature are also presented to the Court by non-lawyers. The question is whether it is ethical for lawyers to so utilize lay personnel for these duties.

OPINION

The inquiry above involves the application of Canon 3 of the Code of Professional Responsibility which provides as follows:

"A lawyer should assist in preventing the unauthorized practice of law."

Ethical Consideration 3_6 under Canon 3 states that "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."

Formal Opinion 316 of the American Bar Association Standing Committee (1967), holds:

"A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, non-lawyer draftsmen or non-lawyer researchers. In fact, he may employ non-lawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client."

That Opinion also holds that a lawyer cannot delegate his professional responsibility to a law student employed in his office.

The use of lay employees such as secretaries, law interns and clerks to perform ministerial tasks at the court house such as filing papers in the court clerk's office, recording deeds and the like is not objectionable and is a reasonable utilization of lay personnel which will enable a lawyer to render legal services to his clients more economically and efficiently. Such delegation is proper under Canon 3, Code of Professional Responsibility.

However, it is unethical for a lawyer to so delegate any task which may require professional judgment. Obviously, an appearance in or before the court by a lay employee on behalf of a lawyer's client would violate the accepted interpretation of Canon 3 and would constitute the unauthorized practice of law.

The presentation of legal documents, orders, process and the like to the court will, in many instances, require the exercise of professional judgment by the person making such presentation. For example, in divorce matters the question of the amount to be included for temporary alimony or child support payments and how broad temporary injunctive relief should be is a subject inquired about by the judge before signing temporary orders. The presentation of orders of default judgment may also require professional opinion as to the sufficiency of service and the regularity of granting judgment in the amount requested by the presenting party. Any attempt by a non-lawyer to satisfy such inquiries or to render professional opinions or exercise professional judgment upon questions raised by the court would constitute the unauthorized practice of law and be clearly beyond the scope of permissible activities of lay personnel employed in law offices.

It is, therefore, the opinion of this Committee that without limitation to divorce or probate matters it is unethical for an attorney to permit any non-lawyer employee to present pleadings, orders or other papers to the court for signature or other action, because such activity constitutes the practice of law. A lawyer authorizing or permitting such activity would be aiding the unauthorized practice of law.