NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 713
TOPIC: USE OF NON-LAWYERS TO ASSIST
LAWYERS IN DRAFTING AND
NEGOTIATING ORDERS PERTAINING
TO PENSION RIGHTS IN
OBLIGATION OF ATTORNEY
EMPLOYED BY RETIREMENT SYSTEM
TO OFFER LEGAL ADVICE TO
REPRESENTATIVES OF MEMBERS
OR THEIR SPOUSES.
DIGEST: A LAWYER MAY HIRE NON-LAWYERS
TO PREPARE AND NEGOTIATE
ORDERS PERTAINING TO THE
DIVISION OF PENSION RIGHTS IN
MATRIMONIAL ACTIONS, PROVIDED
THAT THE LAWYER ASSUMES
OVERALL RESPONSIBILITY TO THE
CLIENT AND CONDUCTS ALL
JUDICIAL PROCEEDINGS; AN
ATTORNEY-EMPLOYEE OF A
RETIREMENT SYSTEM MAY DEAL
WITH NON-LAWYERS IN PASSING
UPON THE ENFORCEABILITY OF
SUCH ORDERS; AN ATTORNEY-
EMPLOYEE OF A RETIREMENT
SYSTEM IS NOT ETHICALLY
OBLIGATED TO GIVE LEGAL ADVICE
TO REPRESENTATIVES OF MEMBERS
OR THEIR SPOUSES ENGAGED IN
CODE: CANONS 3, 5 and 6; EC 3-1; EC
3-5; DR 3-101; EC 5-1; EC 5-
18; EC 6-1.
Pension benefits are divided between divorcing spouses pursuant to orders in matrimonial actions. For such an order to be enforceable, it must be consistent with and meet the requirements of the pension plan involved. If such an order is not in accord with the requirements of the relevant pension plan, it may be rejected by the plan administrator and have to be resettled. Public and private pension plans frequently employ lawyers whose tasks include review of and negotiation with respect to such orders.
The drafting of such orders often involves complex valuation problems. Lawyers frequently employ actuaries or other non-lawyer experts to assist with such valuation questions.
These non-lawyers are also sometimes delegated the task of preparing the proposed orders.
The inquirer asks the following questions in connection with reviewing and negotiating orders in matrimonial actions:
Is it proper for an attorney to hire the services of a non-lawyer to prepare, negotiate and submit to the court orders involving the division of pension rights?
Is it proper for an attorney employed by a retirement system to deal with non-lawyers in passing upon the enforceability of such proposed orders?
Is an attorney employed by a retirement system obligated ethically to offer legal advice to the non-lawyer or lawyer with whom he is dealing on such matters?
In ABA Formal Op. 316 (1967), the American Bar Association Committee on Professional Ethics stated:
A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client.
In the nearly three decades since the ABA Committee on Professional Ethics issued the above quoted opinion, the involvement of non-lawyers in the provision of legal services has continually expanded. See N.Y. City Op. 1995-11 (discussing the development and expansion of roles of non-lawyer employees). This Committee, in N.Y. County Op. 682 (1990), stated that nonlawyers “may draft documents of all kinds . . . under the supervision of an admitted lawyer.”
In our opinion, it is not only proper but desirable for an attorney to hire the services of a non-lawyer expert to assist in such highly technical matters as the valuation of pension rights. See EC 6-1 (“[T]he lawyer should act with competence and proper care in representing clients.”). It follows that it is proper for an attorney representing a retirement system to deal with such non-lawyers in passing upon the enforceability of proposed orders. Such conduct would not constitute aiding in the unauthorized practice of law within the meaning of DR 3-101.
As is clear from the above-cited opinions, it is the attorney who must have the overall responsibility for the matter and must make any requisite court appearances. See EC 3-1 (“[T]he public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession.”); EC 3-5 (“[T]he public interest will be better served if only lawyers are permitted to act in matters involving professional [legal] judgment.”). Accordingly, while an attorney may be assisted by a non-attorney in drafting and negotiating an order pertaining to pension benefits, it is the attorney who must submit such order in the court proceedings and make any argument required therein.
An attorney employed by a retirement system owes his professional loyalty to that system. See EC 5-1 (“The professional judgment of a lawyer should be exercised . . . solely for the benefit of the client and free of compromising influences and loyalties.”); EC 5-18 (“A lawyer employed or retained by a corporation or similar entity owes allegiance to the entity and not to . . . [another] person connected with the entity.”). To the extent that it furthers the interests of the system for him to assist representatives of members or their spouses in the preparation of court orders acceptable to the system, he should do so. However, in the event of disputes between such litigants and the system, his undivided loyalty must be to the system. It is the responsibility of the lawyers for the respective parties to see to it that their clients’ rights are adequately protected in such orders and the attorney for the system is not obligated ethically to offer them legal advice in this regard.
A lawyer may hire non-lawyers to prepare and negotiate orders pertaining to the division of pension rights in matrimonial actions, provided that the lawyer assumes overall responsibility to the client and conducts all judicial proceedings. Moreover, an attorney-employee of a retirement system may deal with non-lawyers in passing upon the enforceability of such orders. However, an attorney-employee of a retirement system is not ethically obligated to give legal advice to representatives of members or their spouses engaged in matrimonial litigation.