Opinion 88-6
FLORIDA BAR ETHICS OPINION OPINION 88-6 April 15, 1988 Advisory ethics opinions are not binding. It is not impermissible per se for a lawyer to have a nonlawyer employee conduct the initial interview with a new client, although the practice is discouraged and must adhere to certain guidelines. RPC: CPR: Opinions: 4-5.3, 4-5.5(b) DR 3-104 70-62, 73-41; ABA Informal 998 The Committee has been asked to consider what a legal assistant or other nonlawyer employee may and may not do in an initial interview with prospective clients. Rule 4-5.3 of the Rules Regulating The Florida Bar provides in pertinent part: With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) A partner 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; (b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer [.] Although this rule does not specifically address the question posed to the Committee, the former rule that governed this area (DR 3-104, Code of Professional Responsibility) provided some insights that remain valid under the current rules. DR 3-104 states that while nonlawyer employees may perform delegated functions under the direct supervision of a lawyer, they may not counsel clients about legal matters or otherwise engage in the unauthorized practice of law. The disciplinary rule further states that the initial and continuing relationship with the client is the responsibility of the lawyer, with the work of the nonlawyer employee being merged into the attorney’s completed product. Of course, the lawyer must examine and be responsible for all work delegated to the nonlawyer employee. In addition, DR 3-104 points out that nonlawyer employees must first disclose their nonlawyer status before communicating with clients or the public. Further insight in this area may be gained from two Florida ethics opinions. Opinion 70-62 provides that an attorney may not delegate to a legal assistant any activity requiring the attorney’s personal judgment and participation. Opinion 73-41 states that an attorney may use a legal assistant only for work that does not constitute the practice of law. This is consistent with Rule 4-5.5(b). Although the Florida opinions do not address the specific issue presented to the Committee, an ABA opinion does. ABA Informal Opinion 998 concludes: While we think it is appropriate for a lawyer to provide himself with such assistance as he deems necessary in order efficiently and economically to perform his work and that of his office, any layman hired by him should not give legal advice or act as a lawyer. We think that the system of conducting initial interviews with clients by non-lawyers could be a violation of the Canons of Ethics, if any advice were given or if the client did not subsequently actually see the lawyer and confer with him. Accordingly, although we do not condemn the practice which you suggest in all instances, we do think it has great dangers and should be carefully supervised so that in practice it complies with the Canons. It would be better if the prospective client were first interviewed by the lawyer and then by the lay assistant. However, as above stated, we do not categorically state that this is essential. After a review of the above-stated information, the Committee concludes that while it is preferred that an attorney conduct the initial interview with prospective clients, the use of nonlawyer employees for this purpose is not prohibited per se. However, the lawyer is responsible for careful, direct supervision of nonlawyer employees and must make certain that (1) they clearly identify their nonlawyer status to prospective clients, (2) they are used for the purpose of obtaining only factual information from prospective clients, and (3) they give no legal advice concerning the case itself or the representation agreement. Any questions concerning an assessment of the case, the applicable law or the representation agreement would have to be answered by the lawyer. Furthermore, it is imperative that the lawyer evaluate all information obtained by a nonlawyer employee during the client interview and that the lawyer subsequently confer with the client and establish a personal and continuing relationship.