Were you stuck on the tarmac before taking off on your last flight? Sitting on the runway can test your patience, especially if your flight is delayed or you find yourself in the middle seat. But rest assured, the pilots may have been completing their pre-flight checklist to ensure your safety and a smooth landing.

Any pilot will tell you that capable and courteous flight attendants are valuable members of the flight crew. Quite frankly, the plane couldn’t leave the ground without their assistance. Your legal assistants and paralegals are likewise critical members of your team. However, like the captain of a plane, you are ultimately responsible for conducting the pre-representation checklist (your client intake process). While it may not be necessary for your safety, it is essential for your sanity and may even prevent a malpractice claim. Although you may be understandably eager to bring new business in the door and engage the client, it is crucial that you follow your office protocol when vetting potential clients. To handle the volume and streamline the process, this may likely mean that your legal assistant or paralegal must also assist.But what are the limitations of their involvement, if any?

The American Bar Association issued Formal Opinion 506 to offer guidance about a lawyer’s ethical responsibilities when it comes to nonlawyer assistants helping with the client intake process. In short, a lawyer may train and supervise a nonlawyer, such as their legal assistant, paralegal, or office manager, to assist with certain prospective client intake tasks, 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, and assisting with answering general question about the fee agreement or process of representation…” Nonlawyer assistants are also permitted to obtain the potential client’s signature on the fee agreement, provided they are always offered the opportunity to communicate with you to discuss the agreement and scope of representation – a best practice when engaging a client.

If you are unsure whether you are giving your nonlawyer assistant too much authority or asking them to perform duties beyond the ethical limitations, pause to consider the Rules of Professional Conduct implicated in the client intake process. Violating these rules can result in ethical issues before a prospective client even hires you and the case takes off.

Model Rule 5.3

ABA Model Rule 5.3 specifically addresses a lawyer’s responsibilities regarding nonlawyer assistants. Rule 5.3(a) provides that a lawyer with managerial authority in a law firm “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.” Further, a lawyer with direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Comment 2 of the Rule further explains that a lawyer must give their assistants appropriate instruction and supervision concerning the ethical aspects of their employment.

In Formal Opinion 506, the ABA highlighted the importance of a lawyer’s delegation of client intake tasks as providing significant benefits and an opportunity to increase efficiency for lawyers. Valuable billable hours can be lost when attorneys handle administrative tasks themselves, including the prospective client intake process. However, before you can take advantage of the many benefits of using nonlawyer assistants to streamline the client intake process, you must have the proper policies in place and commit to the necessary training and supervision. Take the time to thoroughly explain the conflict check process, train your assistant to only collect basic information from the prospective client, and advise them on the extent to which they can answer questions from the prospective client.

Model Rule 5.5

ABA Model Rule 5.5 is another rule of professional conduct which is immediately implicated when you delegate aspects of the client intake process to a nonlawyer assistant. Rule 5.5 governs the unauthorized practice of law and specifically prohibits a lawyer from assisting in such practice. However, the Rule does, in fact, contemplate that lawyers will delegate certain tasks to nonlawyer assistants. Comment 2 of the Rule specifically permitssuch action saying,

ABA Model Rule 5.5 is another rule of professional conduct which is immediately implicated when you delegate aspects of the client intake process to a nonlawyer assistant. Rule 5.5 governs the unauthorized practice of law and specifically prohibits a lawyer from assisting in such practice. However, the Rule does, in fact, contemplate that lawyers will delegate certain tasks to nonlawyer assistants. Comment 2 of the Rule specifically permitssuch action saying,

“[t]his Rule does not prohibit a lawyer from employing the services of paraprofessional and delegating functions, so long as the lawyer supervises the delegated work and retains responsibility for their work. See [the aforementioned] Rule 5.3.”

One potential ethical pitfall under Rule 5.5 exists where a prospective client asks your nonlawyer assistant a question during an initial intake phone call or meeting. Whether your assistant or paralegal can answer the potential client’s question depends on the nature of the question. The ABA cautioned in its Opinion that “if the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for an interpretation of the engagement agreement, the lawyer is required to respond to ensure that the nonlawyer does not engage in the unauthorized practice of law.”

What does this mean for the training you must provide? Take care to train your nonlawyer assistants to identify what questions require a lawyer’s response. You may consider developing a boilerplate response for your assistant to say when confronted with such a question. Your assistant should advise the prospective client that they have jotted down the question and will pass it along to you for response. When you ultimately respond to the prospective client, consider it an opportunity to provide accurate information to aid in their decision as to whether to move forward with your firm as mandated by Model Rule 1.4.

Model Rule 1.4

In the Lawyers Professional Liability insurance world, Model Rule 1.4 (the Communications Rule) is often referenced as the rule that requires a lawyer to keep the client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Unfortunately, sometimes a perceived lack of prompt communication can result in legal malpractice claim or bar grievance after you’ve been engaged. But subsection (b) of Rule 1.4 can apply before you are even retained as the client’s lawyer as it requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Thus, while your assistant or paralegal may provide the prospective client with a copy of the fee agreement for
their review, you should discuss the substance of the
agreement with the prospective client.

So, when presenting a proposed fee agreement, your legal assistant or paralegal must refrain from answering questions about the agreement’s terms. Instead, you and the prospective client should discuss the scope of representation and your intended course of action. In short, nonlawyers may provide general information about the firm’s billing structure—whether fees are hourly, contingency-based, or flat. They may also explain any administrative questions the client may have, such as when payments are due and how they are processed. But once the conversation shifts to interpreting a provision of the agreement, negotiating hourly rates, or who will be responsible for payment of certain expenses, your assistant should tell the prospective client they will pass the questions along to you for a discussion about the fee agreement before it is signed.

Model Rule 1.18

While your legal assistant or paralegal may fully understand the duty of confidentiality owed to clients who have hired the firm, they may not know they must likewise keep any information obtained from a prospective client confidential. Rule 1.18 outlines a lawyer’s duties to prospective clients. Under this Rule, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is considered a prospective client. Subsection (b) states that “[e]ven when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 (Duties to Former Clients) would permit with respect to information of a former client.”

The best practice would be to train any staff member that assists with intake to treat prospective clients and clients who have hired the firm the same when it comes to confidentiality. If there is any question, err on the side of caution and follow the protocols your office uses to maintain the confidentiality of communications and file materials of current clients.

In concluding Opinion 506, the ABA reiterated that delegating client intake must be “carefully and astutely managed,” meaning it requires your continuous monitoring and supervision. As the Opinion notes, “what appears to be a simple question about how long the lawyer will spend on the matter may actually be a question about the representation itself and cannot be accurately answered without the lawyer’s personal knowledge and expertise.” So, before heading down the runway of a new matter with a prospective client, crosscheck your nonlawyer assistant and prepare for takeoff through an ethical client intake process.