Meaningful Attorney Involvement and the new ABA Ethics Opinion on Use of Nonlawyer Assistants
By Manny Newburger, Brit Suttell, and Nabil Foster of Barron & Newburger, P.C.
Over the years NCBA has provided many educational sessions on meaningful-attorney-involvement (“MAI”) that also discussed the importance of Model Rule of Professional Conduct 5.3. On June 7, 2023, the ABA issued Formal Opinion 506 - Responsibilities Regarding Nonlawyer Assistants. If you have not read it, you should. The opinion addresses a lawyer’s ethical obligations when the lawyer delegates to a nonlawyer specific prospective client-intake tasks. It is intended to help lawyers balance the permitted use of nonlawyer staff against Rule 5.5’s prohibition against assisting in the unauthorized practice of law.
The ABA opinion acknowledges that:
A lawyer’s delegation of prospective client intake tasks to a nonlawyer or the lawyer’s use of technology to assist with the initial intake of clients provides significant benefits and increased efficiency to lawyers. For example, nonprofit legal services organizations frequently train, supervise, and rely on nonlawyers to perform initial screening of prospective clients to determine whether there are conflicts of interest and whether the prospective clients are requesting services that fall within the organization’s practice areas.
The ABA opinion also notes, however, that “without proper policies, training, and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers.” Citing a Michigan Bar informal opinion, the ABA also observes that the “practice must be carefully and astutely managed.”
Ever since the Second Circuit Court of Appeals’ decision in Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993), collection attorneys have struggled with the issue of what it means to be “meaningfully involved” in the sending of a collection letter. While (rightly or wrongly) CFPB consent orders with law firms have provided specific regulatory guidance on what conduct is necessary for an attorney’s involvement to be “meaningful,” the case law has taken an “I know it when I see it” approach.
Our firm’s success in defending MAI cases has been less about creative legal arguments and more about the facts of the cases. Specifically, we have found the MAI policies and procedures implemented, enforced, and documented by our law firm clients to be particularly useful in minimizing exposure to liability. We believe that ABA Formal Opinion 506 is something that should be referenced and integrated into meaningful attorney involvement policies. The fact of doing so is likely to be a useful part of telling your meaningful involvement story to a judge or jury.
A lawyer may develop policies, train, and supervise a nonlawyer so that the lawyer may delegate to the nonlawyer client intake tasks assuming those tasks do not constitute the practice of law in the applicable jurisdiction. For example, a lawyer may delegate to the nonlawyer 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, answering general questions about the fee agreement or process of representation, and even obtaining the prospective client’s signature on the fee agreement as long as the prospective client is offered an opportunity to communicate with the lawyer to discuss the matter.
However, the ABA opinion also cautions that:
delegation of prospective client intake must be carefully and astutely managed... Therefore, a lawyer must provide nonlawyers who are performing client-intake tasks with policies, training, and supervision regarding which questions the nonlawyer may answer, how to respond to those questions, and which questions should be presented to the lawyer.
These same concepts translate easily to the functions performed by nonlawyers who do initial bankruptcy, military, and deceased scrubs, check for venue and the applicable statute of limitations, and determine whether sufficient documentation has been received to justify the drafting of a letter or suit. A law firm should document the policies, training, and supervision relevant to the performance of those tasks. Critically, the decision of whether to send a collection letter or file a lawsuit must be that of the attorney. When the “meaningful involvement” suit under the FDCPA arrives at your office doorstep, your attorneys must be able to articulate their involvement in the process and their exercise of independent legal judgment in approving the letter or suit. In our experience, those evidentiary points can win a meaningful involvement suit.
NCBA undertook a successful effort on behalf of its members to avoid codification of MAI in Regulation F. While Opinion 506 is a “Formal Opinion” of the ABA, it is not presently codified in the ABA Model rules or any state’s rules of professional conduct. Nevertheless, in future interactions with the CFPB, collection attorneys may well see it cited as a basis for regulatory positions taken by the Bureau.