New guidance regarding the role of legal assistants in law offices

Legal assistants play an indispensable role in law firms and the offices of solo practitioners performing tasks that make the effective legal representation of clients possible, including initial client intake. A lawyer using a nonlawyer to assist in client intake, however, implicates two Model and California Rules of Professional Conduct. Rule 5.3 requires a lawyer who manages a law firm or supervises a nonlawyer to make reasonable efforts to ensure that person’s conduct is compatible with the professional obligations of a lawyer. Rule 5.5 precludes a lawyer from knowingly assisting a person in the unauthorized practice of law.

In June, the ABA issued Formal Opinion No. 506, which addresses a lawyer’s ethical obligations when he or she delegates client intake responsibilities to a nonlawyer. Opinion 506 provides that a lawyer may delegate client intake responsibilities to nonlawyers as long as: (1) the lawyer trains and supervises the nonlawyers; and (2) the nonlawyers give prospective clients the opportunity to consult with the lawyer. With regard to specific tasks, Opinion 506 states that a nonlawyer may assist with client intake by receiving initial information about the matter, performing an initial conflict check, determining whether the case involves the lawyer’s areas of practice, answering general (emphasis added) questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement. Delegating these tasks to a nonlawyer does not absolve the lawyers of their responsibilities. The lawyer must still consult with the client regarding the client’s objectives and how to achieve them; comply with reasonable requests for information; and communicate with clients about fees, the scope of representation, and any limits thereon.

Opinion 506 also addresses unauthorized practice of law issues that may arise from a nonlawyer performing client intakes. Whether a nonlawyer may answer a prospective client’s specific question depends on the question presented and what would be considered the practice of law in the jurisdiction. The California Supreme Court has defined the practice of law as “the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure.” People v. Merchants Protective Corp. (1922) 189 Cal.531, 535. This includes rendering legal advice and preparing legal instruments even if the legal advice is not rendered and the legal instruments are not prepared in the course of litigation.

Generally, questions regarding the applicability of a law to a certain set of facts, the negotiability of attorney fees, and the interpretation of rights and responsibilities pursuant to a representation agreement require an attorney’s input. Opinion 506 notes that if the prospective client asks about what legal services the client needs, wants to negotiate the lawyer’s fees or expenses, or seeks an interpretation of the engagement agreement, the lawyer should respond. This will ensure that the nonlawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.

To ensure compliance with the Rules of Professional Conduct, law offices should strongly consider implementing the following practices.

First, they should regularly update training for nonlawyer personnel who conduct prospective client intakes to reflect current law. Ideally, the training should incorporate a section in which nonlawyer personnel confirm their comprehension.

Second, they should require nonlawyer personnel to take detailed notes when conducting prospective client intakes and have an attorney review these notes regularly to ensure that legal advice was not inadvertently given.

Third, they should instruct nonlawyer personnel to: (1) explicitly tell prospective clients that they are not attorneys when conducting prospective client intakes; and (2) inform prospective clients that they can speak to an attorney regarding their specific questions, including questions regarding fee agreements and scope of representation.

Finally, they should train nonlawyer personnel performing client intakes regarding which client questions they may answer and which client questions should be presented to an attorney so as not to run afoul of rules governing the unauthorized practice of law. Nonlawyer personnel should err on the side of caution if they are unsure whether they are permitted to answer a prospective client’s question and alert the attorney that his or her participation is required.

Following these recommendations will assist lawyers in ensuring they are in compliance with the California Rules of Professional Conduct. It also will reduce the risk of disputes arising from the formation of the attorney-client relationship – including conflict-of-interest claims, actions arising out of taking on matters outside of the attorney’s expertise, and issues relating to fees.