True to their name, mass torts involve thousands, sometimes hundreds of thousands, of claims, myriad data points, and numerous steps from intake to resolution. The management of such legal endeavors requires nonlawyer staff and solutions capable of organizing, analyzing, and securely maintaining vast amounts of client information.
In mass torts and class actions, it is common to delegate initial client intake to nonlawyers, whether that is support staff or technology platforms. When delegating tasks in that way, it is imperative that mass tort attorneys comply with all relevant ethical rules, opinions and laws, including the recent guidance from the American Bar Association (ABA).
The ABA's recently released Formal Opinion 506 addresses a lawyer's ethical obligations when delegating specific prospective client intake tasks to a nonlawyer. The guidance stated that lawyers are allowed to train and oversee nonlawyers to assist with initial client intake tasks, provided they fulfill their obligations for the management and supervision of nonlawyers following ABA Model Rule 5.3, which covers the responsibilities associated with nonlawyer assistance.
The opinion delves into the ethical responsibilities associated with delegating specific client-intake tasks to nonlawyer assistants, setting a framework for best practices in client representation, and what to look for in a vendor tasked with client intake.
For mass tort attorneys seeking to retain clients and avoid potential legal pitfalls, a comprehensive understanding of Formal Opinion 506 is crucial. In order to remain in compliance with this guidance, there are a few crucial steps mass torts attorneys must take.
Implement proper policies, training, and supervision of staff
Delegating prospective client intake tasks to nonlawyer assistants, whether that is staff or technology, requires establishing clear and comprehensive policies within a law firm. These policies should outline the specific tasks that can be delegated, emphasizing the importance of following ethical standards.
Training should be designed to instruct nonlawyer staff on the ethical aspects of their responsibilities and ensure they have a comprehensive understanding of the limitations imposed by ABA Model Rule 5.3 and Formal Opinion 506.
For example, Formal Opinion 506 states, "trained 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." But as detailed below, there are certain questions to which only a lawyer can respond.
Continuous supervision is important to monitor the performance of nonlawyer assistants and address any issues promptly, maintaining the integrity of client interactions.
At intake, always provide the option for a potential client to speak with the attorney handling their case
Confirming that prospective clients have the opportunity to communicate directly with the attorney who will be handling the case is fundamental to adhering to Formal Opinion 506. Lawyers must take steps to guarantee that prospective clients have the opportunity to discuss fee agreements and the scope of representation with the specific lawyer that would be representing them, prior to signing an engagement letter — not just an attorney employed by an intake center or marketing firm.
Additionally, the Opinion discusses the application of
Model Rule 5.5, which determines whether nonlawyers can answer specific legal questions based on jurisdictional definitions. As the Opinion states, "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 interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law…"
Therefore, the intake process should be designed to facilitate attorney-client communication, allowing clients to discuss their matters, ask questions, and seek clarification on legal aspects, fees, the scope of representation, and objectives. In offering this option, attorneys not only comply with this new guidance but also create transparency and trust in the attorney-client relationship.
Avoid conflicts of interest at the outset of a client relationship
At the beginning of any client intake, attorneys need to perform a conflict check before agreeing to accept a new client. Firms should disclose to potential clients that the client-attorney relationship is not established until the firm has completed a conflict check and confirmed that they can assist the potential client.
Nonlawyers can perform an initial screening of prospective clients by checking for conflicts of interest, utilizing website intake questions, and employing conflict-checking algorithms. By checking for conflicts at the outset, law firms can ethically represent the prospective client without fear of conflicting with existing clients or other obligations.
Note all communications coming from nonlawyer personnel as such and provide attorney contact information
In the client-attorney relationship, it's best practice to uphold transparency and prevent any confusion. All communication initiated by nonlawyer personnel should be identified as such, including emails or other written correspondence. Clients should be made aware of the roles of nonlawyer assistants and provided with clear contact information for the supervising attorney.
Ensuring compliance with ABA guidelines at every stage of client intake is crucial, especially for mass tort attorneys who are often representing thousands of plaintiffs. By performing the necessary work at the beginning of a client relationship, firms can avoid ethical pitfalls and focus on their important work seeking justice for their clients.
