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Litigation News

Litigation News | 2023

ABA Ethics Opinion Offers Clarity on Use of Nonlawyers

Ryan McCarthy

Summary

  • Nonlawyers often play essential roles at law firms.
  • How much can a lawyer delegate to a nonlawyer assistant, intern, or secretary in client intake without running afoul of ethical obligations?
  • 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.
ABA Ethics Opinion Offers Clarity on Use of Nonlawyers
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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).”

Opinion 506 Operating in the Real World

The practical implications of the decision “depend on the firm and the practice,” according to Tiffany A. Rowe, Washington, DC, cochair of the ABA Litigation Section’s Professional Liability Litigation Committee. Class action or personal injury practices are high volume, requiring frequent client intake and screening. They also rely heavily on nonlawyers for client intake, “so it is important that they have clear and succinct policies in place,” advises Rowe. The opinion attempts to strike the balance between “on the one hand, having nonlawyers perform tasks like client intake, which make the practice of law more efficient, while on the other hand, having clear and succinct policies in place to avoid any ethical violations,” she concludes.

For some Section leaders, more guidance on the use of nonlawyers would be welcome. “The opinion does not break any new ground and is scant on details outside the scope of the opinion, which is client intake,” opines Jeanne M. Huey, Garland, TX, cochair of the Litigation Section’s Ethics & Professionalism Committee. “Despite its narrow focus, the Opinion serves as an excellent reminder to all lawyers that written policies and procedures and regular (twice a year) training of non-lawyer staff and paraprofessionals are required in order to discharge our duty of supervision,” notes Huey.

Other Resources Guiding the Use of Nonlawyers

Opinion 506 also lacks examples necessary to fully understand a lawyer’s training and supervisory duties, says Huey. For a fuller picture of how nonlawyer staff can be utilized without violating Model Rule 5.3 or 5.5, Huey refers to the ABA Standing Committee on Paralegals’ published Guidelines. “These guidelines were updated in 2021 and were prepared specifically for use by lawyers supervising nonlawyers. They contain detailed information about training and supervising paraprofessionals in all aspects of the practice of law—not just intake or initial client inquiries. They are especially useful when creating written policies and procedures for nonlawyers in any size firm.”

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