[W]hether... Staff Member’s Potential Employment Constitutes "The Outside Practice of Law" or Falls Under the Exception of "Evaluations."
Office of the General Counsel
External Opinion: 99-02
. . . [W]hether ... staff member's potential employment constitutes "the outside practice of law" or falls under the exception of "evaluations."
Gary W. Dart
Legal Services of Eastern Oklahoma
115 West Third Street, Suite 701
P.O. Box 8110
Tulsa, OK 74101-8110
Dear Mr. Dart: This is a response to your inquiry of June 8, 1999, via email, which has been forwarded to the Office of General Counsel ("OGC") at Legal Services Corporation ("LSC") for response. You have requested an opinion on whether your staff member's potential employment constitutes "the outside practice of law" or falls under the exception of "evaluations." The employment that the staff member would like to engage in is to read land abstracts and write title opinions on her own time.
Your inquiry did not provide us with enough facts and information regarding the potential employment of your staff attorney to enable us to issue a formal opinion. The determination of whether certain activities constitute the practice of law, and which may, therefore, come within our prohibition on the outside practice of law, is very fact intensive. We will, however, provide you with the necessary framework to guide you in the application of the regulation to the facts in this case.
The Corporation's policy on the outside practice of law is found at Part 1604 of our regulations. 45 CFR Part 1604. This rule implements the provisions of the LSC Act that states full time attorneys may not engage in "any compensated outside practice of law." 42 USC 2996f(a)(4)(A).
The first determination that must be made is whether the employee is an "attorney" to whom the restrictions on the outside practice of law apply. The restrictions apply only to full time attorneys who are paid 50% or more of their salary with LSC funds. See 45 CFR §1604.2(a). The restrictions do not apply if the attorney in question is employed less than full time or the position is supported by non-LSC funds.
If the regulation applies to your staff member, then the general policy of LSC regarding outside work, as stated at §1604.3, is:
No attorney shall engage in any outside practice of law if the director of the recipient has determined that such practice is inconsistent with the attorney's full time responsibilities.The "outside practice of law" is defined in §1604.2(b):
"Outside practice of law" means the provision of legal assistance to a client who is not entitled to receive legal assistance from the employer of the attorney rendering assistance, but does not include, among other activities, teaching, consulting, or performing evaluation.
Thus, it would be permissible for the attorney to engage in any outside activity that does not constitute the practice of law or otherwise falls within our definitional exceptions of teaching, consulting, or performing evaluations. "Teaching," "consulting" and "performing evaluation" should be strictly construed to prevent evasion of the restriction by simply labeling the work performed as a "consultation" or an "evaluation" when it is actually the practice of law. The following factors may assist you in determining whether the employment is the outside practice of law.
In Oklahoma, what constitutes the "practice of law?"
Each state has it's own definition of, and requirements for, the practice of law. If the attorney's activities fall under Oklahoma's definition of the "practice of law," we would likely defer to that determination. You may contact your local bar association to determine whether the work (or analogous work) is considered the practice of law.
Could a non-lawyer be hired to perform the work in question?
If an attorney is required to perform the work, it indicates it may be the "outside practice of law." If a non-lawyer, or unlicensed lawyer would be allowed to perform the work, then it is not the practice of law.
Is she presenting herself as an attorney, or as an expert on land abstracts?
Presenting herself as an attorney gives weight towards the determination it is the "outside practice of law." However, if she is an expert or consultant hired to evaluate land abstracts, it is likely not the practice of law.
Will the attorney be paid at an hourly attorney's rate, or a contractual fee for services?
Payment for services at an hourly attorney's rate indicates it is the "outside practice of law." If the attorney earns a flat fee for performing evaluations then it is likely not the practice of law.
Will the attorney work directly with clients, or is she hired by a firm or company?
If the attorney is employed by a firm or company and does not work for the client who is the ultimate recipient of her services, the work is more likely to fall under the allowable exception of consultation or expert evaluation, than the provision of legal assistance. Determinations of whether an activity constitutes the "outside practice of law" must be made on a case-by-case basis, since the relevant facts vary. The broad purpose of these regulations is to ensure that your eligible clients receive the highest quality of legal assistance. If you conclude that the proposed activity of your staff attorney does constitute the "outside practice of law," she may engage in the activity only if she satisfies §1604.3 with director approval, in addition to either §1604.4 or §1604.5. Pursuant to §1604.4, the attorney may engage in the compensated outside practice of law if §1604.3 is satisfied and, (a) the attorney is newly employed and the case is carried over from her previous practice; or (b) it is a court order. See 45 CFR §1604.4. Pursuant to §1604.5, the attorney may engage in the uncompensated outside practice of law if §1604.3 is satisfied, and (a) it is a court order; (b) on behalf of friend or family member; or (c) on behalf of religious, community, or charitable group. See 45 CFR §1604.5. It does not appear from the facts provided in your inquiry that the employment in question would qualify under any of these exceptions. It is, therefore, unlikely that the employee may pursue these activities should you determine that it constitutes the practice of law in Oklahoma. I hope the above analysis will be useful to make a determination based on the facts of your attorney's case. Please let me know if you need additional assistance. Sincerely,
/s/ Susan D. McAndrew
Senior Assistant General Counsel
/s/ Kelline A. Carroll