CBA Record July-August 2023

While nonlawyer assistants can answer many initial questions that prospective clients could pose, they should not answer any questions that would require them to apply any law to the facts of the client’s situation. This would almost certainly constitute the practice of law in most or all U.S. jurisdictions. For example, an assis tant at a call center for a personal injury law firm could almost certainly talk to a prospective client about the way contin gency fees are charged, but would not be able to answer a question, for example, on when the statute of limitations on a cli ent’s claim expired. Under the Opinion, though, nonlawyer assistants can convey such questions to the lawyer, obtain the answer, and relay the lawyer’s answer to the prospective client. Challenges and Cautions One challenge in this area will be deter mining which questions are delegable and which are not. For that reason, both lawyers and nonlawyer assistants should exercise caution. At least one legal ethicist and commen tator has criticized the new opinion in part as functionally expanding Rule 1.4’s Com munication requirements that flow to cur rent clients to prospective clients, arguing that if Rule 1.4 had meant to include pro spective clients, it could have (or, that such language could be included in Rule 1.18) (https://faughnanonethics.com/505-and 506-are-not-the-abas-best/). Even setting aside that very fair obser vation, Formal Op. 506 will provide at least some helpful guidance to lawyers and law firms that use nonlawyer assistance in the client intake process. As the Opinion notes, the use of nonlawyer assistants must be “carefully and astutely managed.”

PRACTICAL ETHICS BY TRISHA RICH ABA Weighs in on Use of Nonlawyer Assistants A recent American Bar Association ethics opinion weighed in on a lawyer’s responsibilities when The opinion relies primarily on two Model Rules, Model Rule 5.3 and Model Rule 5.5. Illinois Rule of Professional Conduct 5.3 is identical to Model Rule 5.3. While the Illinois version of 5.5 varies somewhat from the Model Rule, those dif ferences are not relevant to this analysis.

using nonlawyer assistants for intake tasks related to prospective clients. The ABA issued Formal Opinion 506 in June 2023, titled Responsibilities Regarding Nonlaw yer Assistants. While I am not a fan of the term “nonlawyer,” I will use it in this arti cle to track the language in the opinion. By way of background, it is extremely common in certain areas of law to use nonlawyer assistants to support client intake (for example, I have personal injury, family law, and workers compensa tion clients who all use nonlawyer assis tants for the intake process; as the opinion notes, this practice is also very common in mass tort and class action practices). Often these nonlawyer assistants will be the first line of contact for prospective clients who call a law firm. They will col lect the prospective client’s information, information about the potential opposing parties and other conflict information, details about the facts arising from the cli ent’s prospective claim, and other neces sary information so for the law firm can determine whether to accept the case and form an attorney/client relationship with the (at this point) prospective client. The opinion clearly states that lawyers may train nonlawyer assistants to handle such client intake tasks, but it also cautions that lawyers need to ensure that their assis tants’ actions and conduct are consistent with the Rules of Professional Conduct. The opinion also notes that, as part of the intake process, prospective clients should have the opportunity to consult with the lawyer regarding the legal matter.

Model Rules 5.3 and 5.5 Under Rule 5.3, lawyers must make rea sonable efforts to ensure that the nonlaw yer assistants they supervise comport their behavior to the lawyer’s own professional obligations. Rule 5.5 prohibits nonlaw yers from engaging in the unauthorized practice of law. The opinion recognizes that lawyers can develop policies, train, and supervise nonlawyer assistants to complete these intake tasks so long as the lawyer’s jurisdiction would not consider such tasks to be engaging in the practice of law. Such tasks could include collect ing initial information about the matter, performing an initial conflict check, determining whether the legal assistance being sought is in an area relevant to the lawyer’s practice, and answering general questions about fee agreements or pro cesses related to representation. The tasks can also include sending an engagement letter and collecting the prospective cli ent’s signature, so long as, along the way, the prospective client is offered an oppor tunity to communicate directly with the lawyer to discuss the matter. The opinion cautions, though, that whether a nonlawyer assistant can answer a prospective client’s specific question will depend on both the question presented and the jurisdiction’s interpretation of what constitutes the practice of law.

Trisha Rich is a litigator and legal ethicist at Holland & Knight and the President of the Association of Profes sional Responsibility Lawyers, the national bar association for legal ethicists. You can reach her at trisha.rich@hklaw.com, on LinkedIn at linkedin.com/

in/trisharich, or on Twitter @_TrishRich.

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