The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 70-62
February 12, 1971

Lay personnel may be used in a law office only to the extent that they are delegated mechanical, clerical or administrative duties. The attorney may not ethically delegate to a lay employee any activity which requires the attorney's personal judgment and participation.

Canon: 3
CPR: EC 3-5, 3-6

Chairman Massey stated the opinion of the committee:

Inquiry is made pertaining to the use of lay personnel within a law office. The opinion will be divided into two parts.

The first portion is quoted from the inquiry as follows:

We anticipate using the lay person in the real estate field to handle the following matters:

1. After the contract between the parties has been executed and a file set up by the attorney's secretary, the file will be delivered to the lay specialist who will obtain all preliminary data. This would include location and ordering of abstracts and survey where appropriate, checking our internal files to determine if a prior opinion or title policy has been issued by our firm on said property, obtaining pay-off or assumption figures on existing mortgages and liens and, in general, gathering all necessary data involving said transaction.

2. We envision that after the contract stage the next time the file would come back to the attorney would be after the abstract continuation, surveys, and all necessary data has been compiled. The lay assistant would then forward the file back to the responsible attorney with all such data included. The responsible attorney would then examine the abstract and dictate either an Opinion of Title or title binder based on his examination. The file would then go back to the lay assistant who would, following the directives of the attorney, prepare closing statements, and notify all parties of the scheduled closing.

3. All work and documents prepared by the lay assistant would be forwarded back to the responsible attorney at some predetermined time prior to the closing for the attorney's review and approval.

4. The attorney closes the real estate transaction.

5. After the closing the attorney forwards a file back to the lay assistant with appropriate directives as to the recording of documents, pay off of any liens, and disbursements of expenses not disbursed during the closing.
The Committee basically approves the proposal as outlined in the inquiry finding that there is no ethical problem. The sole reservation to be expressed by the Committee is that the attorney should at no time leave to the lay employee those matters calling for the expertise of an attorney. For example, if lay personnel prepare all closing documents, such lay personnel should not be allowed to draw complicated escrow agreements or other collateral contracts. See Canon 3 and ethical considerations thereunder (EC 3-5 and 3-6).

The second part of the inquiry is not quite as easy to answer. It asks of the propriety of:

. . . In the probate field we propose the utilization of lay personnel to prepare estate forms, accountings, tax returns, obtain necessary facts from outside sources for preparation of such estate pleadings, and perform other duties of this nature. In the litigation field we propose utilization of lay personnel to index depositions, prepare interrogatories, prepare schedules of witnesses to be deposed, schedules of witnesses necessary for trial, summarize facts, interview witnesses, and other such related matters. We propose that all work done by a lay person in our office shall be reviewed and approved by a responsible attorney before any item either goes to the files or outside of the office as a completed item of work.

These plans are similar to the proposal as to real estate transactions but not as detailed. Again, the Committee does recognize and approve the use of lay personnel in probate and litigation under the appropriate considerations of Canon 3. Delegation to lay employees of the mechanical, clerical and administrative duties is encouraged. However, the attorney may not ethically delegate an activity in which he personally should give his judgment and participation.

While generally approving the concept stated in this second part of the inquiry, the Committee gives it but a qualified approval as the Committee would prefer to determine such matters on specific factual cases. This is true because the Committee does have reservations as to authorizing lay personnel to prepare interrogatories and to interview all witnesses in every case. What may be permissible in a “run-of-the-mill” case may not be so in complicated, unusual matters.

[Revised: 08-24-2011]