Ethics Opinon 1976-9
July
1, 1976
SUBJECT:
ADVERTISEMENT OF PARALEGALS
I
QUESTION PRESENTED
A nonprofit
legal services center for the elderly has advertised in
a local newspaper the availability of legal help from para-legal
aides trained by a local attorney. Is such an advertisement
permissible?
II
SUMMARY
Advertisements
of the availability of legal help at such centers and the
opportunity to see a paralegal aide is permissible; however,
an implication that paralegal aides are authorized to provide
legal services is not permissible.
III
CANONS AND STATUTES
Business
and Professions Code section 6076, Rules 2-101 and 2-102
as well as American Bar Association Disciplinary Rule 2-102
prohibit solicitation of professional employment by members
of the State Bar.
Section
6151 through 6154 prohibit solicitation by agents of members
of the Bar by capping and running. Section 6151 defines
a "capper" or "runner" as any person
acting in any manner or in any capacity as an agent for
an attorney at law in the solicitation or procurement of
business for such attorney.
Section
6076, Rule 2-104(F) provides an exception to the prohibition
of solicitation by members of the Bar as follows:
The
participation of a member of the State Bar in a legal aid
plan or program for the furnishing of legal services to
indigents or pursuant to the plan or program of a nonprofit
organization formed for charitable or other public purposes
which furnishes legal services to persons only in respect
of their civic or political or constitutional rights and
not otherwise in furtherance of such charitable or other
public purposes of such organization, and the publicizing
of such plans or programs are not, of themselves, violations
of these Rules of Professional Conduct provided the name
of such member of the State Bar is not publicized. . . .
Business and Professions Code section 6125 provides:
No
person shall practice law in this State unless he is an
active member of the State Bar.
Business
and Professions Code section 6126 provides:
Any
person advertising himself as practicing or entitled to
practice law or otherwise practicing law . . . who is not
an active member of the State Bar is guilty of a misdemeanor.
Business
and Professions Code section 6127 provides in part:
The
following acts or omissions in respect to the practice of
law are contempts of the authority of the courts:
(a)
Assuming to be an officer or attorney of a court and acting
as such, without authority.
(b)
Advertising or holding oneself out as practicing or as entitled
to practice law or otherwise practicing law in any court,
without being an active member of the State Bar.
IV
SAN DIEGO COUNTY BAR OPINIONS
Opinion
1974-9 involved a free clinic and publicity of its services.
The opinion held that a legal aid clinic may publicize the
programs being offered, but not the names of participating
attorneys.
Two
opinions have involved the possible unlawful practice of
law once employment is obtained. Opinion 1973-9 held that
oral and written materials may be presented at public meetings
of the Coastal Commission by a law student, however, the
student must not render legal opinions as an attorney nor
negotiate with other attorneys, and the student must clearly
label legal arguments as the product of a lay citizen-law
student not practicing law. Opinion 1974-1 held that law
students can comment in writing and appear before local
governmental agencies and provide input on environmental
projects, provided that it is made clear to the agency that
they are not licensed attorneys, nor do they provide the
professional functions of a lawyer. These opinions involve
law students, but they may be helpful in determining what
is the "unlawful practice of law."
V
RESOLUTION OF THE STATE BAR
In the
State Bar Newsletter of 1972, the Minutes of the Board of
Governors' Meeting in March, 1972 was published. It contained
the following resolution:
RESOLVED,
upon consideration of report of committee on Economics of
Law Practice re legal assistants . . . that the Board take
the following action:
1.
Endorses, on behalf of the State Bar, the concept of the
use of legal assistants where appropriate by the lawyers
of the state with the condition that their use be fully
under the proper supervision of an active member of the
State Bar.
. .
.
VI
ANALYSIS
Neither
the Business and Professions Code nor the Rules of the American
Bar Association specifically mention advertisement by paralegal
aides. Such advertisements, therefore, must fall within
one of the recognized exceptions to the prohibition of solicitation.
A legal aide clinic may advertise the offering of certain
services, however, the offering and providing of legal services
by paralegal aides would constitute a violation of Business
and Professions Code section 6126. So long as the paralegals
do not act as a conduit for the advertising of a particular
lawyer or law firm, their use by members of the Bar is not
prohibited.
In conclusion,
the advertisement as written is not permissible because
of the implication that the "legal help" available
from the paralegal aides is the same as the "legal
services" which can only be performed by an active
member of the State Bar.
This
opinion is advisory only and is not binding upon the State
Bar, the Board of Governors, its agents or employees.
Disclaimer:
This opinion was issued by the Legal Ethics Committee of
the San Diego County Bar Association. It is advisory only
and is not binding upon any member of the SDCBA, any other
member of the State Bar of California, the State Bar of
California or its Board of Governors, or any persons or
tribunals charged with regulatory responsibilities. The
SDCBA, its officers, directors, agents, and the Legal Ethics
Committee members assume no responsibility or liability
in rendering this opinion.
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