Hiring Nonlawyer Independent Contractor to Organize and Speak at Educational Seminars Related to Estate Planning
Adopted: July 18, 2008
Opinion rules that a lawyer may hire a nonlawyer independent contractor to organize and speak at educational seminars so long as the nonlawyer does not give legal advice.
Inquiry #1:
May a lawyer hire a nonlawyer independent contractor to organize and speak at educational seminars at which the nonlawyer will present general information about wills, trusts, and estates?
Opinion #1:
Yes. The giving of legal advice is the practice of law. See N.C.G.S. § 84-1 (2004). A nonlawyer may provide educational information about the law to members of the public, so long as the nonlawyer does not exercise independent legal judgment and does not give legal advice or counsel to attendees as to their legal rights or responsibilities, or the legal rights or responsibilities of others. To avoid assisting in the unauthorized practice of law, the lawyer must exercise the appropriate level of supervision to ensure that the nonlawyer is not giving legal advice. See Rule 5.5(d).
The structure of the educational legal seminars makes it difficult to envision how a lawyer can ensure that the nonlawyer does not give legal advice, unless the lawyer is actually present. Therefore, a lawyer who hires and allows a nonlawyer to conduct an unsupervised educational seminar assumes the risk that he may assist in the unauthorized practice of law.
Inquiry #2:
If the answer to Inquiry #1 is yes, may the nonlawyer respond to questions from members of the seminar audience?
Opinion #2:
No, unless the question can be answered with general information about wills, trusts, and estates. The nonlawyer may not answer questions that require the exercise of independent legal judgment or the giving of specific legal advice. The hiring lawyer assumes the risk that the nonlawyer will cross the line between answering general informational questions and giving legal advice. See Rule 5.5(d).
Inquiry #3:
If the answer to Inquiry # 1 is yes, may the nonlawyer meet individually with seminar attendees, who request such a meeting, and inform the attendees about services that the lawyer provides that are relevant to the attendee's situation?
Opinion #3:
No. The determination of what legal services might benefit an individual attendee requires the exercise of independent legal judgment and is therefore the practice of law. See N.C.G.S. § 84-.1 (2004). The lawyer is prohibited by Rule 5.5(a) from assisting such conduct.
Inquiry #4:
Is the nonlawyer required to disclose to the seminar attendees the name of the lawyer who is paying for him to speak at the seminar?
Opinion #4:
Yes. The nonlawyer must disclose the name of the lawyer sponsoring the seminar in order to avoid misleading the seminar attendees in violation of Rule 7.1(a). However, if a seminar attendee asks the nonlawyer to recommend a lawyer, the nonlawyer should reply that he cannot recommend a specific lawyer. See Rule 7.3(a).
Inquiry #5:
If the answer to Inquiry #1 is yes, may the lawyer compensate the nonlawyer per seminar or per hour?
Opinion #5:
Rule 5.4(a) prohibits a lawyer from sharing legal fees with a nonlawyer except in certain circumstances not relevant to this inquiry. Therefore, it would be inappropriate to compensate the nonlawyer based on the amount of legal fees generated by the nonlawyer's presentation of educational seminars. However, the hiring lawyer may compensate the nonlawyer based either on the number of seminars conducted by the nonlawyer or the number of hours worked by the nonlawyer.