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June 12, 2023 Legal Ethics

ABA issues guidance for lawyers’ use of legal assistants

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

ABA Formal Opinion 506 addresses the scope of responsibilities for nonlawyer assistants.

ABA Formal Opinion 506 addresses the scope of responsibilities for nonlawyer assistants.

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Formal Opinion 506 points to model rules relating to managing and supervising others as well as the 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.

The opinion 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.”

The guidance also focuses on unauthorized practice of law, which is covered by Model Rule 5.5. It notes that whether a nonlawyer may answer a prospective client’s “specific question” depends on the question and what would be considered to be the practice of law in the jurisdiction in which the lawyer practices.

The standing committee 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.

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