Approved Ethics Rule: Third-Party Vendors May Pursue Nonparty Document Production Only Under Lawyer Supervision and Independent Professional Judgment

1. Introduction

In In Re: Formal Advisory Opinion 24-1 (Supreme Court of Georgia, Aug. 11, 2026), the Court reviewed and approved a State Bar of Georgia Formal Advisory Opinion addressing a practical, increasingly common litigation workflow issue: whether lawyers—particularly those working for or retained by insurers—may use third-party vendors to request, follow up on, and effectuate the production of documents from non-parties pursuant to O.C.G.A. § 9-11-34(c).

The case arose through the State Bar’s advisory-opinion process under State Bar Rule 4-403. After public posting and comment, the Formal Advisory Opinion Board adopted Formal Advisory Opinion No. 24-1 (“FAO 24-1”). The State Bar then petitioned for discretionary review, and the Supreme Court of Georgia granted review and ultimately approved the FAO as appended to its per curiam opinion.

The core ethical tension is straightforward: outsourcing routine retrieval of medical records and other third-party documents can increase efficiency, but it risks (i) undermining the lawyer’s supervisory and competency duties, (ii) compromising confidentiality and other legal compliance obligations, and (iii) allowing an insurer or other third-party payor to “direct or regulate” the lawyer’s professional judgment.

2. Summary of the Opinion

The Supreme Court of Georgia approved FAO 24-1 in full. The approved FAO establishes that:

  • A lawyer may use and rely on a third-party vendor as a nonlawyer assistant to request and obtain documents from nonparties under O.C.G.A. § 9-11-34(c), including medical records.
  • Such use is impermissible if the arrangement (or the vendor) would interfere with, inhibit, or compromise the lawyer’s responsibilities under the Georgia Rules of Professional Conduct—especially supervision (Rule 5.3), competence (Rule 1.1), or independent professional judgment (including Rules 1.8(f), 2.1, and 5.4(c)).
  • The lawyer must retain the right and ability to appropriately supervise the vendor. If the lawyer cannot direct the vendor’s actions enough to ensure compatibility with the lawyer’s professional obligations, the lawyer should not undertake or continue the arrangement.
  • Where an insurer (or other third-party payor) seeks to require use of a vendor, the lawyer may not comply if the lawyer believes or reasonably should believe the requirement will interfere with professional judgment; if agreement cannot be reached, the lawyer should withdraw.

3. Analysis

3.1. Precedents Cited

The Court’s per curiam decision contains no judicial precedent analysis; instead, the approved FAO functions as a structured application of governing statutes and the Georgia Rules of Professional Conduct (and their comments). The opinion’s persuasive and precedential force therefore comes from how it interprets and operationalizes those rules for a modern litigation practice context.

Key authorities cited (using the Opinion’s titles and citations) include:

  • O.C.G.A. § 9-11-34(c) (nonparty document production in civil actions).
  • Georgia Rules of Professional Conduct 1.1 and Rule 1.1, cmt. 5 (competence; methods and procedures).
  • Georgia Rules of Professional Conduct 1.2(a) and Rule 1.2, cmt. 2 (client objectives; withdrawal when agreement cannot be reached).
  • Rules 1.7 and cmts. 2 and 10 (conflicts and impairment of professional judgment).
  • Rule 1.8(f) and cmt. 5 (third-party payment; independence and informed consent principles).
  • Rule 2.1 (exercise independent professional judgment; candid advice).
  • Rule 5.1(a) and Rule 5.1(a) cmt. 2 (managerial duties; firm policies and procedures).
  • Rule 5.3 and Rule 5.3(a), (b), (c)(1), plus Rule 5.3 cmt. 4 and other comments (nonlawyer assistants; supervision; responsibility; ratification).
  • Rule 5.4(c) (prohibiting payor control over professional judgment).
  • Rule 5.5(a) and cmt. 2 (unauthorized practice of law considerations referenced as outside scope).
  • State Bar Rule 4-403(c) and State Bar Rule 4-403(d) (advisory opinion publication, comment, and review process).

3.2. Legal Reasoning

FAO 24-1’s reasoning is best understood as a set of interlocking constraints rather than a blanket approval or prohibition. The FAO does not treat third-party vendor use as inherently improper; instead, it treats vendors as a form of “nonlawyer assistant” and then applies the ethical framework that governs all delegation of legal-service-adjacent tasks.

A. Delegation is allowed, but the lawyer remains responsible (Rule 5.3)

The FAO starts from the proposition that the Rules permit lawyers to use “nonlawyer assistants,” broadly defined to include persons or entities assisting by “employment, contract, or other relationship.” The key move is not definitional but allocative: delegation does not transfer responsibility. Under Rule 5.3, the lawyer must make “reasonable efforts” to ensure the vendor’s conduct is compatible with the lawyer’s obligations, and the lawyer may be responsible for vendor misconduct the lawyer orders or ratifies (Rule 5.3(c)(1)).

The FAO operationalizes this by insisting the arrangement must preserve meaningful supervision—i.e., the lawyer must be able to “communicate directions appropriate under the circumstances” (see Rule 5.3, cmt. 4) and retain the ability to direct actions involved in serving, following up on, and effectuating requests.

B. Competence is not optional; workflow choices are competence choices (Rule 1.1)

The FAO links vendor use to competence by emphasizing that competent handling includes methods and procedures that meet professional standards (Rule 1.1, cmt. 5). In practical terms, if outsourcing produces unreliable requests, improper follow-ups, missed deadlines, noncompliant communications, or inaccurate document handling, then the “efficiency” rationale cannot justify continuing the arrangement.

C. Independence of professional judgment is the hard stop (Rules 1.7, 1.8(f), 2.1, 5.4(c))

The FAO treats interference with professional judgment as a categorical barrier. It expressly relies on:

  • Rule 5.4(c): a third-party payor (including an insurer) may not “direct or regulate” the lawyer’s professional judgment.
  • Rule 1.8(f) and Rule 1.8(f) cmt. 5: third-party payment arrangements are ethically constrained precisely because they create pressure points on independence and loyalty.
  • Rule 2.1 and Rules 1.7 and cmts. 2 and 10: the lawyer must be able to render candid advice and avoid circumstances that materially limit independent judgment.

The FAO makes this principle concrete in the insurer-retained-counsel context: if the insurer requires use of a specific vendor, the lawyer may not comply where the lawyer believes or reasonably should believe the arrangement is likely to interfere with professional judgment. The FAO recognizes that “reasonable belief” can arise from contract terms, course of conduct, specific instances, or other known facts—an important point because interference is often structural (built into vendor workflows, scripts, or insurer metrics) rather than explicit.

D. Withdrawal is the prescribed remedy when ethical compliance cannot be ensured (Rule 1.2, cmt. 2)

The FAO’s most consequential enforcement mechanism is practical: if the lawyer, client, and/or insurer cannot agree on vendor use consistent with the Rules, the lawyer “should withdraw.” This positions withdrawal not as a last-resort punishment but as an ethical safeguard when independence, competence, or supervision cannot be maintained.

E. Law-firm governance responsibilities (Rule 5.1(a))

By citing Rule 5.1(a) and Rule 5.1(a) cmt. 2, the FAO signals that vendor use is not merely an individual attorney issue. Firms—especially insurance-defense practices operating at scale—must implement policies and procedures that give reasonable assurance that lawyers and their vendor relationships conform to the Rules.

F. “Outside the scope,” but not outside the risk: unauthorized practice and confidentiality

The FAO expressly notes that avoiding the unauthorized practice of law is “outside the scope of this opinion,” while referencing Rule 5.5(a) and cmt. 2. It similarly flags that the use of vendors to procure “sensitive or confidential information or documents, such as medical records,” may implicate other state and federal law requirements (e.g., protected health information). Even though the FAO does not adjudicate those regimes, it emphasizes the lawyer’s duty (through Rule 5.3) to ensure vendor compliance where applicable.

3.3. Impact

FAO 24-1 is likely to influence Georgia practice in at least five ways:

  1. Normalizing vendor use with guardrails: It affirms that third-party retrieval vendors are not per se unethical, reducing uncertainty for high-volume civil litigators, including insurance defense counsel.
  2. Supervision as a non-delegable feature, not a formality: Vendor contracts and workflows must preserve the lawyer’s real-time ability to direct and correct vendor conduct, not merely receive status updates.
  3. Limiting insurer “litigation operations” control: Insurers may prefer standardized vendor pipelines, but the FAO clarifies that standardization cannot override the lawyer’s independent judgment under Rule 5.4(c).
  4. Institutional compliance pressure on firms: By invoking Rule 5.1(a), the FAO encourages written vendor-management policies, training, escalation channels, and auditing—especially when multiple lawyers use the same vendor.
  5. More withdrawals (or renegotiated engagement terms) in edge cases: The opinion expressly contemplates withdrawal when ethical compliance is incompatible with client/insurer requirements, potentially affecting insurer panel-counsel arrangements and engagement letters.

4. Complex Concepts Simplified

  • “Request the production of documents from a non-party pursuant to O.C.G.A. § 9-11-34(c)”: A civil-procedure mechanism to obtain documents from someone who is not a party to the lawsuit (often medical providers holding medical records).
  • “Nonlawyer assistant” (Rule 5.3): Any nonlawyer person or company helping a lawyer provide legal services—inside or outside the firm. A records-retrieval vendor qualifies.
  • “Reasonable efforts” to ensure compatible conduct: Practical steps appropriate to the risk—e.g., clear written instructions, training, review checkpoints, auditing, and corrective control when problems arise.
  • “Professional judgment” (Rules 2.1 and 5.4(c)): The lawyer’s independent decision-making about strategy, legality, ethics, and the client’s interests—decisions that cannot be dictated by an insurer or vendor.
  • “Unauthorized practice of law” (Rule 5.5(a) referenced): When a nonlawyer performs tasks legally reserved to lawyers. The FAO does not decide where that line is for vendors, but cautions lawyers to account for it.
  • “Withdraw from the representation”: Ending the attorney-client representation when continuing would violate ethical obligations or when necessary conditions (like independent judgment and supervision) cannot be maintained.

5. Conclusion

In Re: Formal Advisory Opinion 24-1 approves a pragmatic but firm rule for modern litigation practice in Georgia: lawyers may use third-party vendors to pursue nonparty document production under O.C.G.A. § 9-11-34(c), but only if the lawyer retains meaningful supervisory control, maintains competent representation, and preserves independent professional judgment—especially against insurer or third-party payor pressures. The opinion’s broader significance lies in its clear message that efficiency tools are ethically acceptable only when they remain tools of the lawyer’s practice, not substitutes for the lawyer’s responsibility.