You have asked for guidance regarding the following situation: You are a former attorney for government agency "A". Two former directors of Employee and Labor Relations for "A" have formed their own corporation "B & C", which provides services to members of the National Association of "A" supervisors. Generally, they represent "A" supervisors in hearings before the Merit Systems Protection Board, or in the internal appeal procedure in government agency "A." You further note that it is not necessary in either of these proceedings to be an attorney.
Agency "A" is now undergoing a reorganization and several supervisors who have lost their jobs have contacted "B & C" to ask for their assistance in E.E.O.C. claims currently pending at the administrative level. You indicate that "B & C" have expertise in the employment discrimination area because of their years of service with "A". However, "B & C" have indicated they would rather work jointly with an attorney, in this case, you. "B & C" has also advised you that non-attorneys may represent clients before the E.E.O.C.
You indicate that these cases would be handled only at the administrative level, and that pertinent E.E.O.C. regulations provide that you may file for fees due paralegals and technical advisors. In addition, you note that the E.E.O.C. now has the authority to award compensatory damages and/or back pay. As it is not intended that there would be any "up-front" monies paid by the clients, the only financial incentives are 1) fee awards and 2) a percentage of damages, which would include back pay.
The functions served by "B & C" in these administrative cases before the E.E.O.C. have been outlined by them as follows: 1) Assistance to the complainant in preparation of "Request for Counseling." According to "B & C" it is initially important to make this filing as complete as possible since it serves as the foundation for the entire case. 2) Attempt settlement of the claim, and if unsuccessful in this 3) prepare the formal complaint of discrimination. 4) Prepare the complainant's affidavit and 5) prepare the request for a hearing with EEOC.
"B & C" indicate that there is an extensive discovery process allowed administratively, which they would like to handle with your advice. In addition, you would be presenting the case before the EEOC. "B & C" would assist in witness preparation and act as technical advisors during the hearing. You ask if you can:
1) file for fees for "B & C" as paralegals or technical advisors?
2) If #1 above is affected should the client contract with "B & C" directly, instead of you?
3) Can you share your fee with "B & C" if it is made up of a percentage of any award of compensatory damages and/or back pay given by the E.E.O.C.?
4) Is the answer to #3 above changed if the client contracts with "B & C" directly and "B & C" agrees to reimburse you, if successful, a set dollar amount, or if "B & C" agrees to make up the difference between a set dollar amount and a direct award of attorney's fees made to you by the E.E.O.C?
In rendering this opinion, the Committee assumes that the information provided by you regarding who can receive a fee from and practice before the E.E.O.C. is correct; that you will also comply with Rule 1.5 (regarding fees and fee agreements); and 3) that you are not in violation of Rule 1.11.
I. If the client contracts with you directly for representation, you could file for fees for "B & C" as paralegals or technical advisors provided you answer a threshold question before doing so. Are "B & C" functioning as paralegals and/or technical advisors? Given the amount of substantive work done in drafting administrative complaints, working on discovery matters and even preparing the witnesses for testimony (all of which you indicate non-attorneys are able to do before the E.E.O.C.) then clearly these individuals are performing substantive legal work which a paralegal would normally do. This situation does give rise to some concern that "B & C" might not be given enough supervision in the work they are doing prior to a hearing. Remember that supervision of paralegals by an attorney is an ethical requirement outlined in Rule 5.3b and the comment to Rule 5.5.
Although you do not indicate what a "technical advisor" specifically does, "B & C" refer to it as assistants during the course of the hearing or hearings. It does appear from the background information provided, that "B & C" do possess a good working knowledge of the intricacies of administrative law and procedure. However, you must be sure to maintain good time records delineating the two functions so that your petition accurately reflects the paralegal or technical assistant role in the fee petition.
II. Were the client to contract directly with "B & C" who in turn would hire you, provided "B & C" would normally be permitted to appear at an E.E.O.C. hearing and advocate on the client's behalf, this would not change the Committee's opinion on paralegals and technical advisor fees. Were "B & C" precluded from advocating at a hearing, you might be in violation of Rule 5.5a were you to assist "B & C" in its representation of the client as this would be the unauthorized practice of law.
III. The Committee is of the opinion that you cannot share your legal fee with "B & C" as this would be fee sharing with a non-attorney in violation of Rule 5.4a. The obligation to avoid fee sharing with a non-attorney is separate and distinct from the prohibition against aiding and abetting the unauthorized practice of law.
IV. Providing there is no issue of the unauthorized practice of law, the contract for representation could be entered into between the client and "B & C" with "B & C" paying for the legal services rendered to the client. Agreeing on conditions that would trigger an obligation to pay you, and/or filing for attorney's fees would be permissible provided no substantive law or regulation was broken in doing so. Please note that it would be improper were you to submit a fee petition for "B & C's" paralegal services, if the fees were not to go to them. This situation is not one where "B & C" work for you in a firm. Rather it is one where you work with them as a separate entity. Finally, even though "B & C" hired you and the client hired "B & C," you would still be forming an attorney-client relationship with the client, and would still be obligated to comply with Rules 1.8f and 5.4c.
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