Can an attorney let a paralegal or other non-lawyer employee answer the docket call in open court on the attorney's behalf?

Plain-English summary

The inquiry asked about the ethical consequences for attorneys when paralegals or other non-attorney employees appear at docket soundings held in open court to schedule cases for trial. The Board noted it has no jurisdiction to opine on non-attorneys directly, but that an attorney who aids a non-lawyer in the unauthorized practice of law is guilty of an ethical violation under Disciplinary Rule 3-101, which bars a lawyer from aiding a non-lawyer in the unauthorized practice of law and from practicing law where doing so would violate that jurisdiction's regulations. The opinion acknowledged that EC 3-6 permits a lawyer to delegate tasks to clerks, secretaries, and other lay employees, so long as the lawyer maintains a direct relationship with the client, supervises the delegated work, and retains complete professional responsibility for the work product, a delegation that allows more economical and efficient legal service.

The question, then, was whether a lay employee answering a docket call counts as the kind of appearance state law treats as the practice of law, citing People v. Alexander, 202 N.E.2d 841 (Ill. App. 1964) and In re Easler, 269 S.E.2d 765 (S.C. 1980) for the proposition that state law ultimately determines the proper scope of non-lawyer assistance. Tennessee's unauthorized-practice statute, T.C.A. § 23-3-103(a), bars practicing law or doing law business without a license (with a courtesy exception for reciprocal out-of-state attorneys), and T.C.A. § 23-3-101(a) defines the practice of law to include the appearance as an advocate in a representative capacity, or the performance of any such act, in connection with proceedings before a court or other tribunal. The Board had previously held, in Opinion 83-F-44(a), that any appearance before a tribunal in a representative capacity is the practice of law. Applying that, the opinion concluded that answering a docket call on another's behalf is acting in a representative capacity, so any attorney who assists in or allows a non-lawyer to make that appearance is assisting in the unauthorized practice of law and violating the disciplinary rules.

Currency note

This opinion was issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 answer the docket call in court for an attorney's case?

A: No. The opinion held that answering a docket call on another's behalf is an appearance in a representative capacity, which Tennessee law treats as the practice of law, so a non-lawyer employee may not do it.

Q: What tasks may an attorney delegate to a paralegal or other lay employee without it being unauthorized practice?

A: Under EC 3-6, a lawyer may delegate tasks to clerks, secretaries, and other lay employees so long as the lawyer maintains a direct relationship with the client, supervises the delegated work, and retains complete professional responsibility for the work product; appearing as an advocate in a representative capacity in court falls outside that delegable category.

Q: Does the Board have authority to discipline the non-lawyer employee directly for making the appearance?

A: No. The opinion notes the Board has no jurisdiction to render opinions about non-attorneys; its concern is the attorney who aids or permits the non-lawyer's appearance, which exposes the attorney to discipline under DR 3-101.

Background and rules framework

The opinion applied Disciplinary Rule 3-101 (aiding unauthorized practice of law) and EC 3-6 (proper delegation to lay employees) of the Code of Professional Responsibility, together with Tennessee's unauthorized-practice statutes, T.C.A. § 23-3-101 and § 23-3-103(a). The modern correlates are Model Rule 5.5 (unauthorized practice of law) and Model Rule 5.3 (responsibilities regarding nonlawyer assistants), cited here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Statutes:

• T.C.A. § 23-3-101 (definition of the practice of law)
• T.C.A. § 23-3-103(a) (prohibition on the unauthorized practice of law)

Cases:

• People v. Alexander, 202 N.E.2d 841 (Ill. App. 1964), state law determines the scope of permissible non-lawyer assistance
• In re Easler, 269 S.E.2d 765 (S.C. 1980), state law determines the scope of permissible non-lawyer assistance

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-44(a), any appearance before a tribunal in a representative capacity is the practice of law

See also

• AZ Ethics Op. 99-13: Paralegals; Nonlawyers; Unauthorized Practice of Law; Employees of Lawyers; Jurisdiction; Conflicts of Law

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-94

Original opinion text

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

85-F-94 - Paralegals appearing at Docket Calls

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-94

What are the ethical ramifications for attorneys where paralegals or other non-attorney persons make appearances for these attorneys at docket soundings held in open court for the purpose of scheduling cases for trial at the next session of court.

This office has no jurisdiction to render opinions relative to non-attorneys. However, attorneys who aid in the unauthorized practice of law are guilty of an ethical violation and are subject to discipline. Specifically, DR 3-101 states:

DR 3-101 Aiding Unauthorized Practice of Law

(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

The disciplinary rule acknowledges that a lawyer may delegate certain tasks to lay employees. EC 3-6 states:

EC 3-6 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 service more economically and efficiently.

The question presented here is, therefore, whether a lay employee may appear at docket calls on behalf of the attorney. If they cannot, any attorney permitting them to do so would violate DR 3-101.

It is generally true that state law ultimately determines the proper scope of non-lawyer assistants in regard to the unauthorized practice of law. See, for instance, People v. Alexander, 202 N.E.2d 841 (Ill. app. 1964); In Re: Easler, 269 S.E.2d 765 (SC 1980).

The relevant Tennessee statutes are T.C.A. Sec. 23-3-101 et seq., T.C.A. Sec. 23-3-103(a), prohibits the unauthorized practice of law:

No person shall engage in the 'practice of law' or do 'law business', or both, as defined in Sec. 23-3-101, unless he shall have been duly licensed therefor, and while his license therefor is in full force and effect, nor shall any association or corporation engage in the 'practice of law' or do 'law business', or both, as defined in Sec. 23-3-101. However, non-resident attorneys associated with attorneys in this state in any case pending here who do not desire to practice regularly in this state will be allowed, as a matter of courtesy, to appear in such case in which they may be thus employed without procuring a license, when introduced to the court by a member in good standing of the Tennessee bar if all the courts of the resident state of the non-resident attorney grant a similar courtesy to attorneys licensed in this state.

Also relevant here is the statutory definition of "practice of law." T.C.A. Sec. 23-3-101(a) states:

The 'practice of law' is defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.

The above statutes would appear to prohibit non-lawyers from appearing as an advocate in a representative capacity in any court proceeding. The Board has also previously opined that any appearance before a tribunal in a representative capacity constitutes the practice of law. [See Opinion 83-F-44(a).] When an individual appears at docket calls and answers that docket call on behalf of another, he/she is acting in a representative capacity. Any attorney who assists in this appearance or allows a non-lawyer to appear for him or his clients would then be assisting in the unauthorized practice of law and violating the disciplinary rules.

This 6th day of May, 1985.

ETHICS COMMITTEE:

Edwin C. Townsend, Chairman

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD