Does the use of freelance attorneys who are not members of the State Bar of CA violate ethical rules prohibiting aiding and abetting in the unlawful practice of law?
“No person shall practice law in California unless the person is an active member of the State Bar.” Cal. Bus. Prof. Code § 6125. Further, under California Rule of Professional Responsibility 1-120, no member of the State Bar may “assist in, solicit, or induce any violation” of the rules of professional conduct or the state bar. California Rule of Professional Conduct 1-300(A) states, “A member shall not aid any person or entity in the unauthorized practice of law.” These ethical rules apply only when a California law firm contracts with attorneys not admitted in California or uses a Legal Process Outsourcing (“LPO”) company that employs off-shore individuals or out-of-state attorneys. See, Birbower, Montalbano, Condon & Frank, PC v. Superior Court, (1998) 17 Cal.4th 119 (refining the scope of the unauthorized practice of law to include legal work by New York attorneys in connection with prospective private arbitration in California).
While the State Bar Act does not define the practice of law, Courts have discussed its meaning. In Birbower, the Court held, “The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state or created a continuing relationship with the California client that included legal duties and obligations.” Birbower, (1998) 17 Cal.4th 119, 129.
California ethical rules permit law firms to contract for certain legal services by attorneys not licensed in California, including drafting legal pleadings, as long as the law firm remains ultimately responsible for the final work product. Jacob v. State Bar, 19 Cal. 3d 359, 363 (1977); People v. Perez, 24 Cal. 3d 133, 143 (1979). See also, Orange County Bar Formal Opinion No. 94-002 (1994) (opining that a paralegal who does work of a preparatory nature, such as drafting initial estate planning documents, is not engaged in the unauthorized practice of law where the attorney supervising the paralegal maintains a “direct relationship” with the client, citing ABA Ethical Consideration 3-6.). If the temporary attorney makes an appearance in court or at a deposition, then that attorney must be admitted in California. In most situations, however, the temporary attorney performs research and writing or other tasks that do not require a license so long as an attorney licensed by the state retains full control over the representation of the client and exercised independent judgment in reviewing the non-licensed attorney’s work. Law firms must take care to use temporary attorneys with the requisite experience for the task, and must consider the duty of competence, but simply engaging temporary attorney services from an attorney not admitted in California generally does not amount to aiding and abetting in the unlawful practice of law. San Diego County Bar Association Ethics Opinion 2007-1 (“SDCBA Opinion 2007-1”) (“the attorney does not aid in the unauthorized practice of law where he retains supervisory control over and responsibility for those tasks constituting the practice of law.”)
In sum, if a law firm uses a freelance lawyer who is a member of the State Bar of California for a California legal project, this rule is not implicated. If a law firm uses a lawyer not barred in California, or utilizes the services of a non-lawyer (i.e. a paralegal or a member of a Legal Process Outsourcing company overseas), then the project must not be something that would constitute “practicing law.”
For more information on the ethics of contract lawyering, see What Law Firms Should Know Before Contracting With Temporary Attorneys.
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