On June 7, 2023, the American Bar Association Committee on Ethics and Professional Responsibility released Formal Opinion 506 providing guidance on a lawyer’s ethical obligations when the lawyer delegates to a nonlawyer specific prospective client-intake tasks. See Formal Opinion 506 (June 7, 2023). The opinion recognizes that nonlawyers provide tremendous client and lawyer support for law firms in the area of client intake, particularly in high volume and mass tort practices. Indeed, “a lawyer’s delegation of prospective client intake tasks to a nonlawyer or the lawyer’s use of technology to assist with the initial intake of clients provides significant benefits and increased efficiency to lawyers.” Id. at 2. The opinion cautions, however, 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.” Id. How can lawyers who elect to use nonlawyer staff for client intake “carefully and astutely manage[]” this process?
What Must The Lawyer Do
According to the ABA: “A lawyer may develop policies, train, and supervise a nonlawyer so that the lawyer may delegate to the nonlawyer client intake tasks assuming those tasks do not constitute the practice of law in the applicable jurisdiction.” Id. at 3. Specifically, “a lawyer must provide nonlawyers who are performing client-intake tasks with policies, training, and supervision regarding which questions the nonlawyer may answer, how to respond to those questions, and which questions should be presented to the lawyer.” Id. at 5.
Importantly, delegating some client-intake tasks to a legal assistant does not relieve the lawyer from their responsibilities as a lawyer under the Rules of Professional Conduct. “Once the attorney-client relationship is formed, lawyers still have the responsibility to reasonably consult with the client regarding the client’s objectives and how to achieve them. Lawyers also have the responsibility to “promptly comply with reasonable requests for information” and consult with clients who have engaged them regarding limits on the lawyers’ conduct given applicable laws and ethical duties.” Id. at 4.
Taks a Legal Assistant May Do
If properly trained and supervised, Formal Opinion 506 opines that a nonlawyer staff member may:
- Obtain initial information about the matter;
- Perform an initial conflict check;
- Determine whether the assistance sought is in an area of law germane to the lawyer’s practice;
- Assist with answering general questions about the fee agreement or process of representation such as explaining that fees are charged hourly, or on a contingency basis, or the matter is billed at a fixed rate;
- Answer questions about how payments can be processed or other administrative matters;
- Send a standard fee agreement for consideration; and
- Obtain the prospective client’s signature on the fee agreement.
Formal Opinion 506 opines that a lawyer can delegate the above listed tasks to a legal assistant so long as the nonlawyer is (1) appropriately trained (2) properly supervised and (3) that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation.
Tasks a Legal Assistant May Not Do
Some client intake tasks remain non-delegable, and a lawyer may not relinquish their responsibility under the Model Rules to perform the following tasks:
- Answer questions about what legal services the client should obtain from the lawyer to address the client’s objectives;
- Negotiate the fees or expenses;
- Provide an interpretation of the rights and responsibilities set forth in the engagement agreement.
Tasks a Legal Assistant May Be Able To Do
The opinion notes 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.” Id. at 4. If the non-lawyer must apply law to facts as opposed to answering questions about a firm procedural matter, then the non-lawyer must have the lawyer determine the answer. See id. The non-lawyer may then relay the answer to the prospective client depending on the complexity of the issue. If the question concerns merely a firm procedural issue, then the properly trained and supervised nonlawyer may provide an answer. The opinion offers hypotheticals to aid lawyers in determining whether they may delegate the tasks of answering questions to the non-lawyer assistant. “For example, whether a nonlawyer may answer a question relating to fee or cost calculation or how payments can be made may depend on whether the question requires the application of law to the facts of the case, as opposed to a question that merely asks about a firm procedural matter.” Id. at 4.
The opinion further clarifies that the lawyer should not delegate to the legal assistant the task of determining whether the question is best answered by the lawyer or the staff member. Rather, “The lawyer will be responsible for determining if the inquiry is best answered by the lawyer communicating directly with the client, so the lawyer can gather more information to make an informed recommendation.” Id.
Best Practices
Formal Opinion 506 provides very helpful guidance. The opinion explicitly recognizes that lawyers may use nonlawyers in their intake processes while reminding lawyers that the rules do not permit delegation of all of their responsibilities. There are many tasks that the nonlawyer may perform provided that these tasks do not constitute the practice of law in the applicable jurisdiction and that the prospective client always is offered an opportunity to discuss the fee agreement and scope of representation with the lawyer.
Lawyers electing to use non-lawyer staff in their intake process should provide express instructions on which kinds of cases the firm will accept. Further, the lawyer should build an intake system so that the ultimate decision on whether to sign up a client relies on the lawyer’s judgment—not the judgment of the legal assistant. Lawyers may design questionnaires, forms, or templates which contain clear instructions for the nonlawyer. If the client meets the criteria, the nonlawyer staff member may offer a preprinted form contract to the nonlawyer. The best practices would be to include a clause in the written contract that the lawyer is available to consult with the prospective client, including to discuss the fee agreement and scope of representation, prior to execution of the contract if the client wishes to do so. At a minimum, the legal assistant should advise the prospective client that they can consult with the lawyer prior to execution of the contract.
