The Florida Bar
OPINION 74-35Lawyers are not permitted to delegate to lay persons the handling of negotiations with insurance company adjustors regarding claims of the lawyer's clients.
September 23, 1974
September 23, 1974
CPR: Canon 3, EC 3-1, EC 3-2, EC 3-4, EC 3-5, EC 3-6; DR3-101(A)
Opinions: 70-7, 70-62, 73-41, 73-43
Statute: F.S. Chapter 626
Chairman Zehmer stated the opinion of the committee:
The Board of Governors of The Florida Bar has requested the Committee on Professional Ethics to review and reconsider Florida Ethics Opinion 70-7, issued June 2, 1970, in light of the provisions of the Code of Professional Responsibility which became effective October 1, 1970, and related opinions issued since that date concerning the use of "paralegals" or "lay assistants." (See Florida Opinions 70-62, 73-41 and 73-43.)
Opinion 70-7 [since withdrawn] gave qualified approval to a lawyer's use of lay personnel in handling contacts and negotiations with insurance company adjusters in respect to personal injury claims of the lawyer's clients. The opinion cautioned lawyers against permitting such lay employees to assume duties and responsibilities in such negotiations which would amount to unauthorized practice of law, but it did not undertake to define what would constitute the practice of law in respect to such negotiations. The Board of Governors has been confronted with widely differing interpretations of this opinion in respect to activities which the lawyer may ethically delegate to such lay persons. Such negotiations always involve the exercise of the lawyer's professional judgment, so that, as a practical matter, it is doubtful that a lawyer may delegate any responsibility for negotiation to lay employees and avoid the proscription on aiding the unauthorized practice of law.
Canon 3 of the Code of Professional Responsibility and DR 3101(A) implementing that canon specifically require that "A lawyer shall not aid a nonlawyer in the unauthorized practice of law." The ethical considerations underlying this disciplinary rule emphasize "the need of the public for integrity and competence of those who undertake to render legal services" (EC 3-1), and further state that:
The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment. EC 3-2.
Accordingly, EC 3-4 states that "[p]roper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the regulations of the legal profession."
Neither the disciplinary rules nor the ethical considerations under Canon 3 of the CPR state whether the negotiation of claims by lay persons amounts to unauthorized practice of law. EC 3-5 provides only some broad guidelines:
It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, nonlawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.
Although EC 3-6 recognizes that lawyers may often delegate tasks to lay employees in order to render legal services more economically and efficiently, the functions that may be ethically delegated are quite limited (see Florida Opinions 70-62, 73-41 and 73-43). Opinion 70-62 specifically states that EC 3-6 does not permit a lawyer to delegate any activity in which the lawyer personally should give his judgment and participation. It seems to us that, even in the simplest of personal injury cases, negotiation of a settlement most favorable to the client necessarily requires the exercise of the lawyer's professional judgment and participation to some extent.
Moreover, there is a valid distinction between the status of a licensed adjuster and that of the attorney's lay employee handling negotiations. The adjuster is hired directly by the insurance company to adjust claims within the limitations permitted by the relevant provisions of Chapter 626, Florida Statutes. The lay employee of an attorney is not a "public adjuster" as defined in that chapter. The client employs the attorney, not a "public adjuster," to prosecute his claim against the wrongdoer and the insurer, and is entitled to the lawyer's participation and judgment in the conduct of negotiations.
For the foregoing reasons, it is the Committee's opinion that DR 3-101(A) and the ethical considerations quoted above do not permit lawyers to delegate to lay persons the handling of negotiations with adjusters in respect to claims being handled on behalf of the attorney's clients. To this extent, the Committee recedes from its prior Opinion 70-7.