Earlier this month, the American Bar Association issued a formal opinion that provides guidance on a lawyer’s ethical obligations when delegating client intake tasks to nonlawyer assistants.
Formal Opinion 506 reminds lawyers that they may “train and supervise” nonlawyers to assist with initial client intake tasks as long as the lawyer meets their management and supervision requirements (per ABA Model Rule of Professional Conduct 5.3) and the prospective client has the opportunity to discuss the fee agreement and scope of representation with the lawyer.
The opinion says that “[t]rained intake personnel may check for conflicts of interest, collect basic information from prospective plaintiffs or class members for lawyers to ascertain their eligibility to make a claim, and explain how fees and costs are charged in such cases.”
In a press release, the ABA points out that “the opinion noted: If the prospective client meets the eligibility criteria and specifics set forth by the lawyers, ‘then the intake personnel send the prospective clients the standard fee agreement for consideration.’”
Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, “whether a nonlawyer may answer a prospective client’s ‘specific question’ depends on the question presented” and the rules in the jurisdiction in which the lawyer practices, the ABA says.
“The ABA’s formal opinion on using nonlawyer assistants during the intake process will hopefully provide helpful guidance to lawyers using this kind of process,” said Timothy S. Tomasik, President of the Chicago Bar Association. “For large volume practices, using nonlawyer assistants can provide valuable support. But as the opinion notes, lawyers have a responsibility to carefully manage such a process.”
To dig deeper into the opinion and its impact on Illinois lawyers, we spoke to Kathryne Hayes, an attorney at Collins Bargione & Vuckovich in Chicago and the incoming Chair of the Illinois State Bar Association’s Professional Conduct Committee.
How should lawyers be involved in the client intake process?
Kathryne: Including nonlawyers in the client intake process is a necessity in many law firms and can be accomplished in compliance with the applicable Illinois Rules of Professional Conduct.
However, Illinois lawyers should exercise caution and recognize that the involvement of nonlawyers in the intake process is not the equivalent of removing lawyers from the process.
In Illinois, the attorney-client relationship is a voluntary, contractual relationship that requires the consent of both the attorney and client. Donkle v. Lind, 2018 IL App (1st) 171915, ¶33 (internal citation and quotation omitted).
Being a consensual relationship, the client must manifest [their] authorization that the attorney act on [their] behalf, and the attorney must indicate [their] acceptance of the power to act on the client’s behalf. Id.
The relationship can be formed through nonlawyers provided that nonlawyers act only at the direction of a supervising lawyer and defer to prospective clients who request to communicate with a lawyer before entering into a relationship with a lawyer.
What steps should lawyers take using nonlawyer assistants in the client intake process?
Kathryne: Illinois lawyers considering the use of nonlawyers in the intake process should address how the lawyer will determine what cases to accept and how to structure the intake process so that the decision of whether to accept or decline representation applies the lawyer’s judgment and not the judgment of a nonlawyer.
This will likely require the use of templates or forms, which the lawyer prepares and contain clear guidelines for nonlawyers.
For example, a lawyer may prepare a set of criteria for the nonlawyer’s use in the intake process. If the criteria for representation are met, a preprinted form contract may be offered to the prospective client.
The preprinted form contract should state that a lawyer is available for consultation prior to the execution of the contract if the prospective client wishes to speak with a lawyer.
Citing In re Phillips, 226 Ariz. 112 (2010), ABA Formal Opinion 506 noted in footnote 7 that precedent exists which prohibits nonlawyers from having clients sign engagement agreements without adequate attorney involvement.
Does the opinion layout training and supervision protocols?
Kathryne: ABA Formal Opinion 506 does not address what may constitute proper policies, training, and supervision. What constitutes proper policy, training, and supervision will be fact-specific to the lawyer and the nature of the practice.
Illinois lawyers should consider what policies, training, and supervision are appropriate for their individual practice to ensure that the acts of nonlawyers conform to the direction of supervising lawyers and that nonlawyers do not engage in the unauthorized practice of law.
The content and method of training should be considered so that nonlawyers have a clear understanding of what is permitted and expected in the intake process. This will likely require an investment of time and resources.
Could this constitute the unauthorized practice of law?
Kathryne: There is no precise definition of the practice of law. See Clark v. Gannett Co., 2018 IL App (1st) 172041, ¶78.
However, a generally accepted principle is that the practice of law is the giving of advice or rendition of any sort of service by any person, firm, or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill. Id. (citation omitted).
Illinois lawyers have been subject to discipline for their use of nonlawyers in the practice of law. See In re Landau, M.R. 27635, 2014PR174 (November 17, 2015); In re May, M.R. 11764 &11457, 93 CH 320 (December 1, 1995) and In re Alpert, M.R. 15847,96 CH 570 (May 25, 1999).
While ABA Opinion 506 is a positive step in recognizing the reality of the business of lawyering, lawyers must continue to provide proper supervision and direction to their employees to ensure that clients are properly informed and that only lawyers provide legal advice.
ABA Formal Opinion 506 does not address whether lawyers will owe prospective clients who meet with nonlawyers a duty pursuant to Rule 1.18.
Because the questions asked by the nonlawyer will be at the direction of a supervising lawyer, it may be reasonably expected that Rule 1.18 applies to intake meetings between nonlawyers and prospective clients.
Could this constitute fee-sharing with nonlawyer assistants?
Kathryne: Rule 5.4 prohibits lawyers from sharing fees with nonlawyers. Lawyers should keep Rule 5.4 in mind in determining compensation to nonlawyers who are a part of the intake process in law firms.
For example, compensating nonlawyer employees based on the outcome and fees earned from a particular case would probably violate the Rule. However discretionary bonuses are permissible, and compensation based on the firm’s revenues as a whole is appropriate.
See ISBA Opinion No. 89-5 (A profit-sharing plan in which non-attorney employees participate is proper provided shares are based upon overall firm profit and not tied to a particular case.)
Attorneys who have additional questions should contact the ARDC’s Ethics Inquiry Program.
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