Can a lawyer advertise to handle Social Security disability hearings and send a supervised nonlawyer paraprofessional to appear at the hearing, without disclosing that in the ad?

Plain-English summary

Opinion 03-03 addressed lawyers who advertise to represent Social Security claimants whose benefits have been denied and who commonly send nonlawyer paraprofessionals to the agency hearings without saying so in their ads. The Committee concluded the practice is not unethical, subject to the advertising and nonlawyer-supervision rules.

On advertising, the Committee applied Rule 7.2 (permitting advertising through public media) and Rule 7.1(a) (barring false or misleading communications, including omitting a fact necessary to keep the ad as a whole from being materially misleading). It reasoned that because lawyers routinely deliver legal services through nonlawyer paraprofessionals, and are encouraged to do so to make services affordable, an ad is not materially misleading merely because it does not disclose that the hearing representative is often a nonlawyer.

On delegation, the Committee noted that Social Security Administration regulations permit nonlawyers to appear for claimants, so a lawyer does not act unethically by delegating that hearing representation to a paralegal, provided the lawyer meets the Rule 5.3 supervisory duties and retains responsibility for the work. Treating the agency-authorized use of nonlawyers as not the unauthorized practice of law (an issue the Committee said is ultimately for the courts), it concluded the lawyer does not violate Rule 5.5(b)'s bar on assisting unauthorized practice. The Committee did require client consultation: under Rules 1.2 and 1.4(b), the lawyer must discuss the advantages and disadvantages of being represented at the hearing by a nonlawyer rather than a lawyer, far enough in advance that the client can change counsel without prejudice, and should raise the practice at the engagement stage; a written engagement agreement disclosing the use of a nonlawyer is good practice though not required.

In practice

Under this opinion, where the relevant agency authorizes nonlawyer representatives, a Utah lawyer's advertising for Social Security hearing work and use of a supervised paraprofessional at the hearing is permitted, and the ad need not mention the paraprofessional, so long as the lawyer satisfies Rule 5.3 supervision and the Rule 1.2 and 1.4(b) duty to consult the client about who will appear. The opinion holds that these conclusions rest on the agency's authorization of nonlawyer representatives and on adequate supervision; it does not address agencies that do not allow nonlawyer appearances, and it leaves the underlying unauthorized-practice question to the courts. Because the opinion predates Utah's 2005 rule revisions, confirm the current advertising and supervision rules before relying on the specific rule numbers cited here.

Common questions

Q: Does a lawyer's Social Security ad have to disclose that a nonlawyer will handle the hearing?

A: No. The Committee concluded the ad is not materially misleading under Rule 7.1 just because it omits that the hearing representative is often a nonlawyer paraprofessional, since lawyers routinely and properly deliver services through paraprofessionals.

Q: Is it unethical to send a paralegal to the Social Security hearing instead of a lawyer?

A: Not where the agency authorizes it. Because Social Security regulations permit nonlawyer representatives, the Committee said a lawyer may delegate the hearing representation to a paralegal, provided the lawyer adequately supervises the work and retains responsibility under Rule 5.3.

Q: Does using a paralegal at the hearing assist the unauthorized practice of law?

A: The Committee concluded it does not, assuming the agency authorizes nonlawyer representation. So long as the lawyer adequately supervises and retains responsibility, the lawyer does not violate Rule 5.5(b); the Committee noted that defining the unauthorized practice of law is ultimately a question for the courts.

Q: What must the lawyer tell the client?

A: Under Rules 1.2 and 1.4(b) the lawyer must discuss the advantages and disadvantages of being represented at the hearing by a nonlawyer rather than a licensed lawyer, far enough in advance that the client can change counsel without prejudice, and should raise the lawyer's normal practice at the time of engagement.

Background and rules framework

The opinion interpreted Utah Rules 7.1 and 7.2 (Model Rules 7.1 and 7.2, communications about a lawyer's services and advertising), Rule 5.3 (Model Rule 5.3, responsibilities regarding nonlawyer assistants), Rule 5.5(b) (now part of Model Rule 5.5, unauthorized practice), and Rules 1.2 and 1.4 (Model Rules 1.2 and 1.4, scope of representation and communication). It assumed, without deciding, that agency-authorized use of nonlawyers in administrative hearings is not the unauthorized practice of law.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Utah Rule 7.1(a) (false or misleading communications)
• Model Rule 7.2 / Utah Rule 7.2 (advertising; record-keeping)
• Model Rule 5.3 / Utah Rule 5.3 (supervision of nonlawyer assistants)
• Model Rule 5.5 / Utah Rule 5.5(b) (assisting unauthorized practice)
• Model Rules 1.2, 1.4 / Utah Rules 1.2, 1.4(b) (scope; communication)

Statutes:

• 42 U.S.C. § 406(a)(1) (representation of Social Security claimants)

Cases:

• Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), federally authorized nonlawyer agency practice
• In re Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990)

Other opinions cited:

• Utah Ethics Advisory Op. 99-02, 1999 WL 260749: adequate supervision of nonlawyer assistants

See also

• Utah Ethics Op. 99-02: Communicating With an Opposing Party's Non-Lawyer Representative
• Utah Ethics Op. 02-02: "Advertising Material" Legend on Newsletters
• Utah Ethics Op. 09-01: Testimonials and Dramatizations in Lawyer Advertising

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2003-03/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2003-03.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 03-03. Issued June 23, 2003.

¶ 1 Issue: Is it ethical for a lawyer to advertise to provide legal services in Social Security Administration hearings to claimants who have been denied benefits, where nonlawyers are used by the lawyer in providing these services?

¶ 2 Opinion: With due consideration for the rules governing advertising and supervision of nonlawyer assistants, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in hearings before a government agency that authorizes nonlawyer representation. In particular, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances. (fn1)

¶ 3 Background: The United States Social Security Administration permits nonlawyers to appear at hearings as representatives of claimants challenging the denial of Social Security benefits. The hearings are evidentiary and require representatives of claimants to offer direct testimony and to cross-examine adverse witnesses. Lawyers who represent claimants for Social Security Administration benefits often use nonlawyer paraprofessionals to represent the clients in the agency hearings. These lawyers advertise their services in Social Security Administration matters, but commonly do not disclose in the advertisements that the client's representative at the hearing is normally a nonlawyer paraprofessional.

¶ 4 Analysis: We have been asked whether an advertisement placed by a lawyer to provide legal services in Social Security Administration hearings to claimants who have been denied Social Security benefits must disclose that the lawyer normally uses nonlawyer paraprofessionals in making appearances for claimants in such hearings.

¶ 5 Advertising Rules. The first step in the analysis is to review the rules governing advertising. First, "[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication." (fn2) But, any advertisement for the lawyer's legal services must comport with Rule 7.1(a):

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. (fn3)

As the comment to the Rule emphasizes, "This Rule applies to all communications concerning the lawyer's services, including advertising materials." (fn4)

¶ 6 Thus, a disclosure concerning the use of paraprofessionals would only be required if it were necessary to make the advertisement "considered as a whole, not materially misleading." But, lawyers routinely provide legal services through the use of nonlawyer paraprofessionals and, indeed, are encouraged to do so to make legal services affordable to the broadest spectrum of the population. Thus, we conclude that the advertisement in question is not materially misleading if it does not disclose that the services are often provided through nonlawyer paraprofessionals.

¶ 7 Delegation to Nonlawyers. Social Security Administration rules and regulations permit the appearance of nonlawyer representatives for claimants in Social Security Administration hearings challenging the denial of benefits. (fn5) Without such authority, paraprofessionals would ordinarily not be allowed to provide unassisted representation of a client in an evidentiary hearing. Given the Social Security Administration's authorization of nonlawyer professionals to appear as representatives of claimants at its hearings, a lawyer does not act unethically in delegating to paralegals the representation of clients at these hearings. However, the lawyer must comply with his supervisory responsibilities under Rule 5.3, (fn6) which permits nonlawyer paraprofessionals to "act for the lawyer in rendition of the lawyer's professional services." (fn7) Rule 5.3 requires, however, that the lawyer provide nonlawyer paraprofessionals appropriate supervision and retain responsibility for their work. (fn8)

¶ 8 Because the definition of the practice of law in Utah is an issue of law, the Committee is without authority to decide what is and what is not the unauthorized practice of law. However, for purposes of this opinion, we assume that it is not the unauthorized practice of law for a lawyer to use nonlawyer paraprofessionals in administrative hearings as permitted by the agency's applicable rules and regulations. Therefore, so long as the lawyer adequately supervises the work delegated to the paraprofessional and retains responsibility for the paraprofessional's work, the lawyer would not violate Utah Rule of Professional Conduct 5.5(b), which prohibits a lawyer from aiding another person in the unauthorized practice of law. (fn9)

¶ 9 Consent. A lawyer may not, however, delegate to a nonlawyer paraprofessional the representation of the client before an agency proceeding such as a Social Security Administration hearing without consulting with the client as required by Rules 1.2 and 1.4 regarding the means of representation of the client.

¶ 10 Rule 1.2 requires that the lawyer discuss with the client the relative advantages and disadvantages of being represented at the hearing by a nonlawyer paraprofessional, as opposed to being represented by a licensed lawyer. (fn10) Rule 1.4(b) requires that this matter be explained to the client to the extent reasonably necessary to enable the client to make informed decisions regarding the representation. (fn11) Therefore, the lawyer must discuss with the client the lawyer's intention to delegate the representation of the client at the hearing to a paraprofessional. This discussion must be sufficiently in advance of the hearing that the client will not be prejudiced if he decides to change counsel. If the lawyer regularly delegates paraprofessionals to represent clients at Social Security Administration hearings, the lawyer should discuss with the client at the time of engagement the lawyer's normal practice of using a nonlawyer paraprofessional as the client's representative at the hearing.

¶ 11 It is good practice, although not required by the Utah Rules of Professional Conduct, that the lawyer enter a written engagement agreement with the client disclosing that a nonlawyer paraprofessional may represent the client at the administrative hearing. (fn12)

¶ 12 Summary: It is not unethical for a lawyer to advertise to provide representation of claimants denied benefits in Social Security Administration hearings, so long as the advertisement is not false or misleading and otherwise complies with Rules 7.1 and 7.2 of the Utah Rules of Professional Conduct. If an administrative agency, such as the U.S. Social Security Administration, authorizes representation of parties in administrative hearings by nonlawyer representatives, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in such hearings, so long as the paraprofessional is adequately trained and supervised by the lawyer and the lawyer retains responsibility for the work.

¶ 13 If the lawyer ordinarily provides representation of clients in Social Security Administration hearings using nonlawyer paraprofessionals, the lawyer's advertisement is not false or misleading solely because the lawyer's use of nonlawyer paraprofessionals in providing these services is not disclosed in the advertisement. Rule 1.2 requires that the lawyer discuss with the client the objectives of the representation and the means by which the objectives will be pursued. The lawyer should discuss with the client at the initial stages the lawyer's intention to use a nonlawyer paraprofessional as the client's representative at the hearing. Rule 1.4(b) requires that the lawyer explain the advantages and disadvantages of the representation of the client in the hearing by a nonlawyer paraprofessional supervised by the lawyer to an extent reasonably necessary to enable the client to make an informed decision regarding who will appear at the hearing as the client's representative. Under the assumptions set forth in this opinion, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances.

Footnotes

1. It is not the province of the Committee to decide what is the unauthorized practice of law. This is an issue of law for the courts. In rendering this opinion, we have assumed that it is not the unauthorized practice of law for a lawyer to use non-lawyer paraprofessionals in federal administrative hearings as permitted by the federal agency's applicable rules. See, e.g., Sperry v. State ex rel. Florida Bar, 373 U.S. 379, 385-402 (1963); see also In re: Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990).

2. Utah Rules of Professional Conduct 7.2(a) (2003).

3. Id., Rule 7.1(a).

4. Id., Rule 7.1, cmt. Also, under the current rules, "A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used." Id. Rule 7.2(b). We note that this provision does not appear in the current ABA Model Rules of Professional Conduct that resulted from the ABA's Ethics 2000 project. Although Utah may ultimately adopt this deletion as it considers the new ABA Model Rules, Rule 7.2(b) is still a requirement for attorney advertising in Utah. Also, under current Utah Rule 7.2(d): "Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content." The new ABA Rule 7.2(d) broadens this to "at least one lawyer or law firm."

5. A number of administrative agencies permit representation of parties in administrative hearings by nonlawyers. The analysis in this opinion is equally applicable to hearings before such agencies.

6. "A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to insure that the person's conduct is compatible with the professional obligations of the lawyer." Utah Rules of Professional Conduct 5.3(b) (2003).

7. Id., Rule 5.3, cmt.

8. See generally Utah Ethics Advisory Op. 99-02, at 1-2, 1999 WL 260749, http://www.utahbar.org/opinions (Utah St. Bar). There, we stated that determination of "adequate supervision" of a nonlawyer assistant requires a case-by-case analysis. At a minimum, the nonlawyer assistants must be appropriately trained and their performance of professional services monitored and evaluated.

9. "Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3." Rule 5.5, cmt.

10. Rule 1.2 provides: (a) A lawyer shall abide by a client's decisions concerning the objectives of the representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. . . . (b) A lawyer may limit the objectives of the representation if the client consents after consultation. Utah Rules of Professional Conduct 1.2 (2003).

11. "A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation." Id. Rule 1.4(b).

12. We understand that engagements to represent claimants at Social Security Administration hearings are commonly performed under a contingency-fee agreement. If the lawyer's services are to be provided for a contingent fee, the agreement must be in writing. Utah Rules of Professional Conduct 1.5(c) (2003). Also, pursuant to 42 U.S.C. § 406(a)(1), "[t]he Commissioner of Social Security may prescribe rules and regulations governing recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants . . . ." The written fee agreement provides an excellent opportunity for the lawyer to memorialize the discussion with the client of the use of a nonlawyer paraprofessional as the client's representative at the administrative hearing.

Rules Cited: 1.2, 1.4, 5.3, 5.5, 7.1, 7.2, 7.3