Ethically Managing Your Legal Intake Support Staff

It is important for lawyers to have a solid understanding of their ethical responsibilities when managing and supervising nonlawyer assistants involved in the client intake process. Recently, the American Bar Association issued Formal Opinion 506, which addresses this topic.

Although not binding, Opinion 506 represents helpful guidance. It provides that nonlawyer personnel who handle intake functions must be “carefully and astutely managed.” As part of this process, California attorneys must also adhere to the laws and rules governing the unauthorized practice of law. 

A lawyer’s ethical obligation to supervise nonlawyer staff arises generally from Rule 5.3 of the Rules of Professional Conduct. Under California’s version of Rule 5.3, a lawyer with managerial or direct supervisory authority in a law firm shall make reasonable efforts to ensure the firm takes effective steps to provide assurance that the nonlawyer’s conduct complies with the lawyer’s professional obligations. This requires compliant policies, ongoing supervision, and training. The training component must be appropriate for nonlawyers who may have little to no education in the law.

Opinion 506 provides that a lawyer may delegate intake tasks if and only if those tasks do not constitute the “practice of law” in the applicable jurisdiction. Intake tasks enumerated in the opinion include obtaining initial information about the matter, performing a conflicts check, determining whether the assistance sought is in an area germane to the lawyer’s practice, answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on a fee agreement, which the ABA indicates is permissible as long as the prospective client is offered an opportunity to communicate with the lawyer. 

There is one important caveat: whether a nonlawyer may answer a prospective client’s specific question depends on the question presented and what is considered the “practice of law” in the jurisdiction. Thus, it is important to address whether, under California law, these intake tasks constitute the unauthorized practice of law.

California’s Rule of Professional Conduct 5.5 prohibits a California lawyer from engaging in the unauthorized practice of law, or knowingly assisting another person from doing so. In addition, no one may practice law in California unless the person is an active licensee of the State of California.

Holding yourself out as practicing law if you are not entitled to do so is actually a crime. Cal. Bus. & Prof. Code §§ 6125, 6126. The purpose of this regulation is to protect the public from incompetent legal services. Russell v. Dopp (1995) 36 Cal.App.4th 765, 773. 

Determining what constitutes the “practice of law” in California has been described as a “formidable endeavor,” (Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 68), which is beyond the scope of this brief article, but a few examples from the voluminous case law will provide some perspective. The extremely broad California view of what constitutes the practice of law includes legal advice and counsel, and the preparation of legal instruments and contracts. Crawford v. State Bar (1960) 54 Cal.2d 659, 667. However, paralegals, legal assistants and law clerks are authorized to conduct certain activities, such as interviewing clients or work in preparation for the delivery of legal services. See, Mark L. Tuft, et al., California Practice Guide: Professional Responsibility & Liability, Ch. 1-D, § 1:170 (2023) (an excellent resource on unauthorized practice of law in California).

One older (and non-binding) ethics opinion considered whether a paralegal who met with clients and answered questions the paralegal was trained to answer, but otherwise declined to address a client’s questions until speaking with the attorney had engaged in the practice of law. In Formal Opinion 94-002, the Orange County Bar Association concluded such conduct was permissible. Likewise, courts have concluded that filling in blanks on a form or acting as a “scrivener” when recording the parties’ agreement does not constitute the practice of law. See, e.g., Altizer v. Highsmith (2020) 52 Cal.App.5th 331, 341.

In Opinion 506, the ABA defers to each state’s jurisprudence regarding the unauthorized practice of law, and emphasized that lawyers need to have a detailed understanding of the practice of law. In particular, nonlawyers must be trained to understand their own state’s jurisprudence on the unauthorized practice of law. 

The opinion provides that if a prospective client asks what legal services are needed, wants to negotiate the fee agreement, or seeks an explanation of the fee agreement, a lawyer must handle those questions. The opinion also provides that when questions require an application of the law to the facts of a case, a nonlawyer may convey the question to a lawyer, have the lawyer answer the question, and then relay the lawyer’s answer to the client.

This approach allows the lawyer to determine whether the inquiry is best answered by the lawyer communicating directly with the client. The opinion further provides that if the client’s questions implicate the scope of legal services needed, or interpretation of the fee agreement, a lawyer must respond. 

Lawyers must provide nonlawyers who conduct intake duties with policies, training and supervision to avoid the unauthorized practice of law by nonlawyers. Ultimately, as ABA Opinion 506 indicates, “lawyers are responsible for making sure this line is not crossed.”