85-F-94 - Paralegals appearing at Docket Calls

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:
85-F-94 Page 2
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.
85-F-94 Page 2
This 6th day of May , 1985.
ETHICS COMMITTEE:
Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD