Role of nonlawyer assistants in client intake addressed in new ABA ethics opinion

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Lawyers may train nonlawyer legal assistants to handle client intake matters, but they must ensure that such assistants’ conduct is compatible with the lawyer’s professional obligations, including giving clients an opportunity to consult with the lawyer about questions, according to an ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility released Wednesday.

Formal Opinion 506 acknowledges that nonlawyer assistants—such as paralegals, legal assistants and others—provide great services to lawyers. But lawyers can run into ethical problems if they delegate too much to these assistants and do not ensure that the assistants’ conduct complies with the ethical rules.

Two ABA Model Rules of Professional Conduct are implicated—Model Rule 5.3 and Model Rule 5.5.

Model Rule 5.3(b) provides that lawyers who directly supervise nonlawyer assistants must “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” ABA Model Rule 5.5 prohibits the unauthorized practice of law.

“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,” according to the opinion, noting that the practice “must be carefully and astutely managed.”

Lawyers may train nonlawyer assistants to handle much initial client intake information, such as obtaining initial information about the prospective case, run an initial conflicts check, answer general questions about fees, and even obtain the prospective client’s signature. In other words, nonlawyer assistants often can handle general questions from prospective clients.

However, when the questions become more specific about legal services, those questions may have to be directed to the lawyer. And prospective clients should have the opportunity to consult with the lawyer.

The bottom line is that “the prospective client [should] always [be] offered an opportunity to discuss the fee agreement and scope of representation with the lawyer.”

A June 7 press release from the ABA is here.

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