Nonlawyers—including paralegals and legal assistants and others—provide important support to law practices. In today’s fast-paced legal world, nonlawyers have a role in supporting the efficient delivery of legal services. Lawyers may rely on assistants or paralegals to assist in the client intake process. This is especially common in practices involving class actions or mass tort claims.

When a new potential class member or client contacts the practice, nonlawyers may be tasked with obtaining initial information from the client, answering general questions about the representation and determining whether the lawyer may be able to assist in the matter.

However, there can be risks for lawyers if they delegate too much to nonlawyers or if they fail to take reasonable steps to ensure that the nonlawyers’ conduct complies with the ethical rules. The Rules of Professional Conduct in many states require lawyers who directly supervise nonlawyer assistants to “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer,” according to ABA Model Rule of Professional Conduct 5.3(b)

Earlier this month, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 506, which addresses the important role that nonlawyers can play in the client intake process, and offers guidance to lawyers on their ethical obligations when delegating tasks to nonlawyer assistants.

Know What to Delegate

Although the rules generally prohibit the unauthorized practice of law by nonlawyers, lawyers may employ the services of nonlawyers and delegate to them, as long as the lawyer supervises the delegated work and retains responsibility for their work, according to ABA Model Rule of Professional Conduct 5.5, Comment [2].

And, lawyers are obligated to reasonably ensure that the supervised nonlawyers comply with the lawyer’s professional obligations. Thus, lawyers are typically responsible for making sure their nonlawyer assistants do not cross that line.

Opinion 506 offers guidance on complying with these rules in the client intake context. The opinion notes that the extent to which a nonlawyer can address a prospective client’s specific inquiries often depends on the nature of the question itself.

The opinion provides numerous examples of tasks that a lawyer can delegate to a nonlawyer, including “obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, answering general questions about the fee agreement or process of representation, and even obtaining the prospective client’s signature on the fee agreement as long as the prospective client is offered an opportunity to communicate with the lawyer to discuss the matter.”

Opinion 506 also notes that nonlawyers may provide general information about “how the firm charges legal fees, such as explaining that fees are charged hourly, or on a contingency basis, or the matter is billed at a fixed rate. Or, if the question merely relates to how payments can be processed or other administrative matters, then the nonlawyer may provide information to answer the inquiry.”

However, if the prospective client seeks advice on the legal services they should engage, wants to negotiate fees or expenses, or asks for an interpretation of the terms of the engagement agreement, the opinion recognizes that the ethical rules require the lawyer to respond.

Develop Policies, Train and Supervise Nonlawyers

Once a lawyer has identified those tasks that are appropriate to delegate to a nonlawyer for client-intake purposes, it is helpful for the lawyer to develop guidance or policies to govern the nonlawyer’s role. Having appropriate policies and procedures in place for nonlawyers to know when they are permitted to respond and when they must elevate the question to the lawyer can help to ensure compliance with these rules.

Opinion 506 explains that developing policies for, training and supervising nonlawyers helps to ensure compliance with a lawyer’s ethical obligations. This mirrors an attorney’s obligations to supervise nonlawyers under ABA Model Rule of Professional Conduct 5.3(b). Paragraph (a) of that rule also requires a firm to have “measures” to ensure the same.

Comment [1] notes, “Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer.”

Which policies are “reasonable” will vary depending on factors. Firms can also tailor their procedures to the types of cases for which client intake procedures are being applied. For example, Opinion 506 notes that in the mass tort and class action context, trained intake personnel often collect basic information from prospective plaintiffs or class members based on eligibility criteria and specifics set forth by the lawyers.

Similarly, the opinion explains that nonprofit legal services organizations frequently train, supervise and rely on nonlawyers to perform initial screening of prospective clients to run initial conflicts checks and determine whether the prospective clients are requesting services that fall within the organization’s practice areas.

By crafting policies that help lawyers and nonlawyers comply with the rules, firms can help reduce uncertainty and support lawyers in delegating administrative tasks to nonlawyers.

Keep in Mind the Lawyer’s Continuing Obligations

Opinion 504 explains that, while lawyers can delegate tasks to nonlawyers, lawyers do not relinquish their own responsibilities under the Rules of Professional Conduct by doing so. Rather, lawyers still have continuing obligations, for example, to “reasonably consult with the client regarding the client’s objectives and how to achieve them,” “promptly comply with reasonable requests for information” and “communicate with clients about fees, the scope of representation and any limitations thereon.”

Thus, while nonlawyers can play an important role in the client intake process, they do not eliminate the lawyer’s continuing duties under the rules.