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June 07, 2023

ABA issues ethics guidance for lawyer’s use of legal assistants

CHICAGO, June 7, 2023 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion today that provides guidance for how a lawyer might use a legal assistant to perform client intake tasks under ABA Model Rules of Professional Conduct.

Formal Opinion 506 points to Model Rule 5.3, which relates to managing and supervising, and several other model rules, focusing on a lawyer’s responsibility to ensure that any nonlawyer assistance is performed in a way that is “compatible” with a lawyer’s duties. The guidance essentially provides a reminder that while a lawyer can have an assistant perform an array of tasks at client intake, the lawyer should ensure that the prospective client is always offered an opportunity to discuss the fee agreement and scope of representation with the lawyer.

“Trained intake personnel may check for conflicts of interest, collect basic information from prospective plaintiffs or class members for lawyers to ascertain their eligibility to make a claim, and explain how fees and costs are charged in such cases,” the opinion said. Additionally, the opinion noted: If the prospective client meets the eligibility criteria and specifics set forth by the lawyers, “then the intake personnel send the prospective clients the standard fee agreement for consideration.”

Formal Opinion 506 added that while the benefits of using nonlawyer assistants are many, “without proper policies, training and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers. The practice must be carefully and astutely managed.”

In the context of Model Rule 5.5 on unauthorized practice of law, it also noted that whether a nonlawyer may answer a prospective client’s “specific question” depends on the question presented and what would be considered to be the practice of law in the jurisdiction in which the lawyer practices.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available here.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education and works to build public understanding around the world of the importance of the rule of law.