ABA Ethics Opinion Offers Clarity on Use of Nonlawyers

• Pages: 7-7
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Ryan C. McCarthy
• Subject Matter: Derecho Público y Administrativo

onlawyers often play essen-

tial roles at law f‌irms, per-

forming important and

administrative tasks. But

how much can a lawyer del-

egate to a nonlawyer assistant, intern,

or secretary in client intake without

running afoul of ethical obligations?

The ABA Standing Committee on

Ethics and Professional Responsibility

sought to answer this question with

ABA Formal Opinion 506, entitled

“Responsibilities Regarding Nonlawyer

Assistants.” Opinion 506 clarif‌ies that

nonlawyers are permitted to assist with

the client intake process but must be

properly trained and supervised by the

lawyers they work for.

Opinion 506 acknowledges that

nonlawyers “provide tremendous cli-

ent and lawyer support for law f‌irms.”

Lawyers may train and supervise non-

lawyers to assist with prospective client

intake processes, including gathering

initial information about the matter and

running conf‌licts. They may also help

determine whether the representa-

tion sought by the prospective client is

“germane to the lawyer’s practice” and

answer “general questions about the

fee agreement or process of represen-

tation.” A nonlawyer may even obtain

the prospective client’s signature on

the fee agreement, although a prospec-

tive client must always be oered a

chance to consult the lawyer.

Opinion 506 also reminds lawyers

that although they may delegate cer-

tain client intake tasks, any delegated

tasks performed by a nonlawyer must

also comply with a lawyer’s own ethi-

cal obligations under ABA Model Rule

5.3. That rule requires law f‌irm part-

ners or managers to ensure that their

f‌irm has policies to “assure a nonlaw-

yer’s conduct is ‘compatible’” with

their professional responsibilities. And

Rule 5.3(b) requires lawyers supervis-

ing nonlawyers to make reasonable

eorts to ensure the nonlawyer’s con-

duct complies with the lawyer’s ethical

ABA Ethics Opinion Oers Clarity on

Use of Nonlawyers

obligations. What constitutes “reason-

able eorts” is informed by comment 2

to the rule, which requires that lawyers

give nonlawyers “appropriate instruc-

tion and supervision.”

Unfortunately, as the opinion con-

cedes, what falls under “client intake”

versus a “legal question” is not always

clear. Model Rule 5.5 prohibits lawyers

from assisting nonlawyers in the unau-

thorized practice of law. But whether a

prospective client’s question requires

an attorney “depends on the ques-

tion presented” and the def‌inition of

the practice of law in that jurisdiction,

the opinion notes. For lawyers or f‌irms

admitted in and serving multiple juris-

dictions, a question may arise as to

which jurisdiction’s def‌inition governs.

In that event, a choice of law analysis

should be undertaken as outlined in

ABA Formal Opinion 504.

Because prospective client intake

may also require an explanation of a

fee agreement or the scope of repre-

sentation by the lawyer, Opinion 506

also analyzes the application of Rule

1.4(b), which def‌ines a lawyer’s respon-

sibility to explain matters to existing

clients. “We note that Rule 1.4(b) does

not expressly apply to prospective cli-

ents....But it would seem imprudent to

wait until after engagement for a lawyer

to ‘explain a matter to the extent rea-

sonably necessary to permit the client

to make informed decisions regarding

the representation’ as required by Rule

1.4(b).”

The practical implications of the

decision “depend on the f‌irm and

the practice,” according to Tiany A.

Rowe, Washington, DC, Co-Chair of the

ABA Litigation Section’s Professional

Liability Litigation Committee. Class

action or personal injury practices are

high volume, requiring frequent client

intake and screening. They also rely

heavily on nonlawyers for client intake,

“so it is important that they have clear

and succinct policies in place,” advises

Rowe. The opinion attempts to strike

the balance between “on the one hand,

having nonlawyers perform tasks like

client intake, which make the practice

of law more ecient, while on the other

hand, having clear and succinct policies

in place to avoid any ethical violations,”

she concludes.

For some Section leaders, more

guidance on the use of nonlawyers

would be welcome. “The opinion does

not break any new ground and is scant

on details outside the scope of the

opinion, which is client intake,” opines

Jeanne M. Huey, Dallas, TX, Co-Chair

of the Litigation Section’s Ethics &

Professionalism Committee. “Despite

its narrow focus, the opinion serves as

an excellent reminder to all lawyers that

written policies and procedures and

regular (twice a year) training of non-

lawyer sta and paraprofessionals are

required in order to discharge our duty

of supervision,” notes Huey.

Opinion 506 also lacks examples

necessary to fully understand a law-

yer’s training and supervisory duties,

says Huey. For a fuller picture of how

nonlawyer sta can be utilized without

violating Model Rule 5.3 or 5.5, Huey

refers to the ABA Standing Committee

on Paralegals’ published Guidelines.

“These guidelines were updated in

2021 and were prepared specif‌ically

for use by lawyers supervising nonlaw-

yers. They contain detailed informa-

tion about training and supervising

paraprofessionals in all aspects of the

practice of law—not just intake or initial

client inquiries. They are especially use-

ful when creating written policies and

procedures for nonlawyers in any size

f‌irm.”

By Ryan C. McC arthy, Litigation News Contributing Editor

WINTER 202 5 • VOL. 50 NO. 2

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD

Published in Litigation News Volu me 50, Number 2, Wint er 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Th is information or an y portion there of may not be copied or

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