Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

So You Think You’re a Lawyer?  Not So Fast…

It’s the time of year when new law school graduates have graduated from law school, taken the bar exam and are ready to enter the legal profession.  As this group enters the workforce, new graduates and their employers must take pause and remember that this group may not practice law, yet.

To the new graduates, you must remember that while you may have your shiny new law degree and a J.D. after your name, you are not a licensed attorney.  Even once you have passed the bar exam and MPRE, you are still not an attorney.  It is not until you are sworn in, pay your bar dues and get your bar card from the State Bar indicating that you are an active member that you can practice law.  Until that time, it is important that you are always supervised by a licensed attorney and that you communicate to clients that you are not an attorney.  Moreover, you have an affirmative duty to correct any misimpression a layperson might have that you are an attorney.

There are very serious consequences for violating these rules.  If you engage in the unlicensed practice of law, you could be disciplined by the State Bar under California Business and Professions Code 6125 and you can also face criminal charges under Business and Professions Code Section 6126(a).  The first violation is a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. A second conviction carries a minimum sentence of 90 days in county jail except in exceptional circumstances.

To those employing these bright and enthusiastic new almost-attorneys, you have ethical duties too.  Mainly, the duty of competence set forth in Rule of Professional Conduct 3-110 includes the duty to supervise subordinate attorney and non-attorney employees and agents.  This means that you are responsible for the actions of your soon-to-be attorneys, whether they are associates, law clerks or working on a contract basis.  If you fail to adequately supervise them you could be disciplined by the State Bar.  Under this duty, it is incumbent on you to clarify to clients that these individuals are not attorneys.  You may also want to make this clear in the contract to enter with the soon-to-be attorney.

To avoid these ethical violations, non-admitted lawyers and their employers should adhere to these guidelines:

Any written designation of the non-admitted lawyer should indicate that the lawyer is not admitted to practice law in California. This includes Web sites, hiring announcements, letterhead, business cards, and signature blocks. Such disclosure is necessary to ensure that a law firm is not holding the non-admitted lawyer out as entitled to practice law in violation of Business and Professions Code Section 6126(a).

The non-admitted lawyer’s name should not appear on the caption of a pleading.

The non-admitted lawyer should not make an appearance in court or at a deposition.

If the non-admitted lawyer meets with clients in person or by telephone, the clients should be told that the lawyer is not admitted and is not entitled to practice law. Even with this disclosure, the non-admitted lawyer cannot provide the client with legal advice. 

All legal work performed by the non-admitted attorney must be supervised by a licensed attorney.

In re Carlos, 227 B.R. 535, 539 (Bankr. C.D. Cal. 1998). 

Further, “the work must become or be merged into the work of the attorney, so that it becomes the attorney's work product.”  Id.

– Jamie D. Quient

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**