Opinion 401

Statement of Facts Discussion Conclusion

The attorney would maintain in his office a complete file of all collection matters referred by the collection agency to the attorney. A legal assistant working in the attorney's office would place one telephone call to each debtor, urging the debtor to pay and stating that the legal assistant is calling from a named attorney's office. Should the legal assistant's telephone call prove unsuccessful, a demand letter signed by the named attorney would be sent, again urging that the debtor pay. The letter would not contain any direct reference to a lawsuit; rather, it would inform the debtor that the creditor would receive future advice as to whether to pursue legal action. Following the attorney's letter, and should there be no response from the debtor, the attorney's advice would be sought as to whether or not to pursue a lawsuit. If the creditor then decided to file a lawsuit, the attorney would handle it.

The attorney would be paid in a retainer fashion by the collection agency to perform this task. The legal assistant would be paid by the collection agency for the hours spent making telephone calls and performing other collection matters.

Canon 3 provides: "A lawyer should assist in preventing the unauthorized practice of law." Likewise, DR 3-101(A) dictates that, "A lawyer shall not aid a non-lawyer in the unauthorized practice of law."

EC 3-6 is directly in point: "A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product."

An attorney's obligation to supervise a lay person pre-supposes that the attorney has given instructions to the legal assistant after the attorney has acquired adequate knowledge concerning the matter entrusted to him.

The factual arrangement described above clearly tends to remove the direct relationship between attorney and client that is critical to such acquisition of knowledge and thus, to the exercise of appropriate professional judgment. See also, EC 3-2, EC 3-3.

Under the fact situation presented here, long before an attorney is called upon to exercise any professional judgment concerning the creditor-client's potential claim, the collection matter has been put in motion and conducted by a lay person employed by an independent collection agency. This initial and crucial intervention of the lay person between the attorney and the client clearly increases the potential for the unauthorized practice of law, as defined in Section 19 of the State Bar Act and as defined by Texas courts, and, as such, is improper. It further prevents the attorney from properly discharging the ethical duty to supervise employees in their delegated work, as required by EC 3-6.