Opinion 76-33 & 76-38 (Consolidated)
FLORIDA BAR ETHICS OPINION
CONSOLIDATED OPINION 76-33 and 76-38
March 15, 1977
Advisory ethics opinions are not binding.
In billing a client a lawyer may separately itemize for legal research and other similar services
performed by salaried nonlawyer personnel, but care should be taken to avoid the double-billing
that could result if such charges are already accounted for in overhead.
EC 2-19; Canon 3; EC 3-1, 3-4, 3-6; DR 3-104
73-41, 73-43, 74-35, 75-29; ABA Informal 343, 1333
Vice Chairman Lehan stated the opinion of the committee:
Members of The Florida Bar ask about the propriety of separately itemizing
on a bill to a client time devoted to a legal matter for that client by a lawyer’s
nonlawyer employees for work involving legal research, investigation, or drafting
of pleadings done under the supervision of the lawyer.
The Code of Professional Conduct [sic] does not specifically answer the present
inquiries. However, the Code does specifically authorize the delegation by a lawyer of functions
of the lawyer to “nonlawyers such as secretaries, law clerks, investigators, researchers, legal
assistants, accountants, draftsmen, office administrators, and other lay personnel to assist the
lawyer in the delivery of legal services,” subject to certain qualifications. EC 3-6. DR 3-104, as
to “nonlawyer personnel,” specifically sets out circumstances and conditions under which such
personnel may and may not be utilized. Both EC 3-6 and DR 3-104 stress, among other things,
that the work should be done under the direct supervision of the lawyer, who shall be responsible
for such work, which will be merged into the lawyer’s own completed product.
This Committee’s Opinion 75-29 states that a lawyer may not charge a client as a cost
item for the secretarial time the firm spends for the client if such time is a part of the lawyer’s
regular and usual overhead. However, that opinion does not proscribe such charges for extra and
unusual secretarial services, e.g., overtime or other work for the client not ordinarily done by the
The Committee believes that the Code does not contemplate that such work of nonlawyer
personnel described in EC 3-6 and DR 3-104 will be free of charge and believes that the Code
does not prohibit a lawyer from separately itemizing on his bill to the client the time of
nonlawyer personnel of the type referred to in the inquiries.
We believe that the foregoing conclusion of this Committee is not inconsistent with
Opinion 75-29 and that the types of work described in the present inquiries and in EC 3-6 and
DR 3-104 are work which might otherwise have been done by the lawyer himself and which is
delegated by the lawyer and is not that referred to in Opinion 75-29 as ordinarily done by a legal
secretary, the salary for which is a part of the normal office overhead which a lawyer would
routinely incur without reference to a particular matter for a particular client.
The work described in the present inquiries is such that the lawyer, in our opinion, could
charge therefor as separate itemization on his bill if done by outside independent contractors,
e.g., legal research services, research computer systems, private investigators and the like, and
there should not be a difference in that respect if those same types of services are performed by
salaried personnel employed by the lawyer. See ABA Informal Opinion 343 (1970 Supplement
to The Digest of Bar Association Ethics Opinions, No. 5050), stating that where a lawyer
employs an accountant with the client’s consent, he can bill the accountant’s fee as a separate
item of expense.
Also, see especially ABA Informal Opinion 1333, which does not prohibit such separate
itemization for time devoted to a legal matter by a nonadmitted law clerk, with or without
degree, subject to the caveat, to which this Committee also subscribes, that care is taken to avoid
the appearance of the unauthorized practice of law. We add the further, more specific caveats
that all conditions of DR 3-104 be fully complied with, that care is taken to avoid the slightest
appearance otherwise, that the charges for such nonlawyer work only reflect the time spent on
the particular matter which is being billed and are not based upon the nonlawyer’s salary as a
whole, and that such charges not be excessive or disproportionate to charges for like services, if
reasonably available, performed by independent contractors.
The use of nonlawyer personnel should never be permitted to detract or appear to detract
from the “fiduciary and personal character of the lawyer-client relationship.” EC 3-1. See our
Opinion 74-35 that a lawyer may not delegate to nonlawyer personnel the handling of
negotiations with adjusters, and stressing EC 3-4, which says 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.”
See also our Opinions 73-41 and 73-43, proscribing the use of nonlawyer personnel in the
taking of depositions and attending closings without the presence of the lawyer-employer.
The Committee also believes that, consistent with ABA Informal Opinion 1333, the
lawyer is not required to so separately itemize such work of nonlawyer personnel described in
EC 3-6 and DR 3-104 but that time for such work may, in the alternative, be included as an
element considered in arriving at the lawyer’s fee in the same manner as the lawyer’s normal and
usual overhead expenses are treated. See also our Opinion 75-29. However, the lawyer should
not in fact or effect duplicate charges for services of nonlawyer personnel, and if those charges
are separately itemized, the salaries of such personnel employed by the lawyer should in some
reasonable fashion be excluded from consideration as an overhead element in fixing the lawyer’s
own fee. If that exclusion cannot, as a practical matter, be accomplished in some rational and
reasonably accurate fashion, then the charges for nonlawyer time should be credited against the
lawyer’s own fee.
As to whether knowledge and specific advance consent of the client as to such uses of
nonlawyer personnel, and charges therefor, are necessary, the Committee majority feels that it is
in some instances and is not in others. For example, it would not seem appropriate for a lawyer to
always have to seek the consent of the client as to use of a law clerk in conducting legal research.
And under EC 3-6 and DR 3-104 the work delegated to nonlawyer personnel should be so much
under the lawyer’s supervision and ultimately merged into the lawyer’s own product that the
work will be, in effect, that of the lawyer himself, who presumably has entered into a “clear
agreement with his client as to the basis of the fee charges to be made.” EC 2-19. However, we
feel that such “clear agreement” could not exist in many situations where the lawyer intends to
make substantial use of nonlawyer personnel, and to bill directly or indirectly therefor, unless the
client is informed of that intention at the time the fee agreement is entered into.
Therefore, if there is a potentiality of dispute with, or of lack of clear agreement with and
understanding by, the client as to the basis of the lawyer’s charges, including the foregoing
elements of nonlawyer time, whether or not the nonlawyer personnel time is to be separately
itemized, the lawyer’s intention to so use nonlawyer personnel and charge directly or indirectly
therefor should be discussed in advance with, and approved by, the client. This would seem
especially the case where substantial use is to be made of any kind of such nonlawyer services.
See also EC 2-19 as to explaining to clients the reasons for particular fee arrangements proposed.
The Committee suggests that the potentiality of such dispute or lack of clear agreement
and understanding referred to in the foregoing paragraph may exist in the case of work to be
done by nonlawyer personnel who are employed by the lawyer and who perform services of a
type known by the lay public to be regularly available through independent contractors, e.g.,
investigators. The Committee feels that such potentiality especially may exist where the lawyer
enters into a contingent fee arrangement with the client and then separately itemizes charges to
the client for the time of nonlawyer personnel who are full-time employees of the lawyer; the
arrangement may be susceptible of interpretation as involving charging the client for such
nonlawyer services and at the same time, in fact or effect, duplicating the charges by including
the salaries of such personnel as overhead and an element of the lawyer’s own fee, as proscribed
Again, as stated above, care should be taken to avoid the appearance of any unauthorized
practice of law or of the use of such nonlawyer personnel in any way other than as set forth in
Canon 3. Accordingly, even where the advance specific consent of the client as to the use of
nonlawyer personnel may not seem necessary, as referred to above, the lawyer, when intending
to separately itemize on his bill for the services of nonlawyer personnel, should, when arriving at
the fee agreement with the client, acquaint the client with the legal limitations upon any such
personnel whose services might be used and with the conditions applicable to the use of such
personnel as provided in Canon 3.