Nonlawyers often play essential roles at law firms, performing important and administrative tasks. But how much can a lawyer delegate to a nonlawyer assistant, intern, or secretary in client intake without running afoul of ethical obligations? The ABA Standing Committee on Ethics and Professional Responsibility sought to answer this question with ABA Formal Opinion 506, entitled “Responsibilities Regarding Nonlawyer Assistants.” Opinion 506 clarifies that nonlawyers are permitted to assist with the client intake process but must be properly trained and supervised by the lawyers they work for.
Nonlawyers Can Assist with Prospective Client Intake
Opinion 506 acknowledges that nonlawyers “provide tremendous client and lawyer support for law firms.” Lawyers may train and supervise nonlawyers to assist with prospective client intake processes, including gathering initial information about the matter and running conflicts. They may also help determine whether the representation sought by the prospective client is “germane to the lawyer’s practice” and answer “general questions about the fee agreement or process of representation.” A nonlawyer may even obtain the prospective client’s signature on the fee agreement, although a prospective client must always be offered a chance to consult the lawyer.
Opinion 506 also reminds lawyers that although they may delegate certain client intake tasks, any delegated tasks performed by a nonlawyer must also comply with a lawyer’s own ethical obligations under ABA Model Rule 5.3. That Rule requires law firm partners or managers to ensure that their firm has policies to “assure a nonlawyer’s conduct is ‘compatible’” with their professional responsibilities. And Rule 5.3(b) requires lawyers supervising nonlawyers to make reasonable efforts to ensure the nonlawyer’s conduct complies with the lawyer’s ethical obligations. What constitutes “reasonable efforts” is informed by comment 2 to the Rule, which requires that lawyers give nonlawyers “appropriate instruction and supervision.”
Unfortunately, as the opinion concedes, what falls under “client intake” versus a “legal question” is not always clear. Model Rule 5.5 prohibits lawyers from assisting nonlawyers in the unauthorized practice of law. But whether a prospective client’s question requires an attorney “depends on the question presented” and the definition of the practice of law in that jurisdiction, the opinion notes. For lawyers or firms admitted in and serving multiple jurisdictions, a question may arise as to which jurisdiction’s definition governs. In that event, a choice of law analysis should be undertaken as outlined in ABA Formal Opinion 504.
Because prospective client intake may also require an explanation of a fee agreement or the scope of representation by the lawyer, Opinion 506 also analyzes the application of Rule 1.4(b), which defines a lawyer’s responsibility to explain matters to existing clients. “We note that Rule 1.4(b) does not expressly apply to prospective clients[.] But it would seem imprudent to wait until after engagement for a lawyer to ‘explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation’ as required by Rule 1.4(b).”