ABA Releases Ethics Opinions for June, July Covering Nonlawyer Assistants, Office Sharing

In June and July, the American Bar Association published two ethics opinions offering guidance to lawyers with nonlawyer assistants and who share office spaces with other lawyers. 

Formal Opinion 506, published June 7, addresses attorney responsibilities regarding nonlawyer assistants noted in Rule 5.3(a). Specifically, the opinion clarified the rule “provides that lawyers who are partners or managers in a firm must ensure that the firm has policies that assure a nonlawyer’s conduct is ‘compatible’ with the professional obligations of the lawyer.” The rule also requires lawyers who directly supervise nonlawyer assistants to “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer,” according to the opinion. 

The opinion noted delegating client intake tasks to a nonlawyer or using technology to assist with the initial intake of clients can provide higher efficiency to attorneys. The ABA warned in the opinion that “while the benefits of using nonlawyer assistants are many, without proper policies, training, and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers.” The bar association opined the practice must be “carefully and astutely managed.”

In particular and regarding Rule 5.3(a), the bar association explained the processes, supervision and training for nonlawyers to perform initial screenings of clients needs to prioritize the thorough checking for conflicts of interest while being clear to prospective clients about when a client-lawyer relationship may be established. Additional considerations for attorneys in the opinion included a discussion about fee agreements and retainers and what all parties can do to resolve fee disputes if any should arise. 

Formal Opinion 507, published July 12, concerns office sharing agreements with other lawyers. The bar association noted in the opinion that lawyers who share office spaces need to “take appropriate steps to secure client information and clearly communicate the nature of the relationship to the public and their clients.” Specifically, the ABA warned against overlooking potential conflicts of interest issues which may include “imputed conflicts for lawyers ‘associated in a firm,’ representing clients with adverse interests, and consultations between lawyers.” Additional concerns with office sharing can include client confidentiality and making client relationships clear.

The ABA explained in the opinion office sharing can include “lawyers with separate law practices sharing office space, support staff, and equipment; law firms renting unused office space to unaffiliated lawyers; or even lawyers sharing an office suite, receptionist, and conference room as part of a virtual law practice or on a temporary basis.” 

Some suggestions to address client confidentiality in the opinion included creating “separate lobby or waiting areas; refraining from leaving client files out on workspaces, conference rooms, or kitchen tables; installing privacy screens on computer monitors and locking down computers when not actively in use; clean desk policies; and regular training and reminders to staff of the need to keep all client information confidential.” 

Regarding Model Rule 7.1, the ABA warned in Formal Opinion 507 against unclear relationships. “Lawyers in an office sharing arrangement should use separate business cards, letterhead, and directory listings, as well as office signs, firm names, and advertisements that describe their distinct practices and do not suggest a close association between professionals operating within the same space,” the opinion noted. “It is desirable for lawyers sharing office space to have separate telephone lines, but a receptionist may answer a common telephone line with a generic salutation such as ‘Law Offices’ to avoid implying that the lawyers are practicing together in the same firm.”

The bar association goes on to note that “unaffiliated lawyers sharing space must take reasonable measures to ensure that clients are not confused about their associations with the other lawyers practicing in the immediate area. … Any communications to the public should also signal that the law practices are not affiliated with one another, other than in their resource-sharing arrangement.”

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