RI-349

July 26, 2010

SYLLABUS

As a matter of legal ethics, it is possible for a lawyer to represent a client relying on communications solely through a nonlawyer assistant. This Opinion supersedes Informal Opinion RI-128 to the contrary. The assistant must be adequately trained and supervised by the lawyer; and the lawyer must carefully manage the communication and the handling of the matter to avoid assisting in the unauthorized practice of law and failing to provide legal services competently, to communicate adequately with the client, and to provide candid advice.

REFERENCES: MRPC 1.1, 1.4(b), 2.1, 5.3(b), 5.5(b); RI-128.

TEXT

Two requests seek ethical guidance respecting the extent to which a lawyer may utilize the services of a legal assistant to serve as an intermediary in communicating and working with clients and with third parties on the lawyer's behalf:

(i) A legal aid agency proposes to use legal assistants trained and supervised by staff attorneys and provided with checklists developed by staff attorneys to interview clients; document the information in the client's file; locate and interview witnesses; conduct investigations and research; draft legal documents, correspondence and pleadings; summarize depositions, interrogatories and testimony; attend court/administrative hearings and trials, depositions, real estate closings and will executions; and make general presentations at outreach sites. The legal assistants would identify themselves as nonlawyer assistants. The content of the interviews would be carefully documented to facilitate attorney examination. The legal assistants would then meet with assigned staff attorneys to review the facts and thereafter communicate the legal advice of the attorney to the client without interpreting or expanding the advice.

(ii) A lawyer proposes to utilize a legal assistant to communicate directly with an adjuster or other nonlawyer representative of a defendant's insurer to convey and receive information related to potential settlement of a pending claim, including valuation of claims and settlement options. The legal assistant's communication would commence after the lawyer had submitted an initial settlement proposal to the insurer. The legal assistant would be required to follow the lawyer's internal rules for the facilitation of settlement discussions. The lawyer states that the legal assistant would also be authorized to negotiate settlement of the claim with the adjuster based on parameters established by the lawyer.

Michigan Informal Opinion RI-128 (April 21, 1992) is germane to both inquiries and discusses the applicable rules. The opinion addressed two discrete situations: (a) a lawyer preparing a written document for use by a client (will, contract or other document); and (b) a lawyer preparing a pleading to be filed on behalf of a client in a lawsuit. RI-128 analyzed the ethical propriety of the lawyer's drafting the instrument without having personally discussed the matter with the client and relying entirely upon information provided by a legal assistant who had met and discussed the matter with the client. The Opinion reached a "bright line" result, opining that in both situations allowing a legal assistant to act as an exclusive intermediary without any direct communication by the lawyer would not satisfy the lawyer's professional obligations. Those obligations were derived from Rule 1.1, requiring the providing of competent representation; Rule 1.4, requiring a lawyer to keep the client reasonably informed and to explain a matter to extent reasonably necessary to permit the client to make informed decisions; and Rule 2.1, requiring the lawyer to exercise independent professional judgment and render candid advice.

The Opinion discussed the obligations of the lawyer to train and to make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer, as required by Rule 5.3; and conceded that, on the surface, the proposed activity would not violate Rule 5.3. It also discussed the obligation of the lawyer not to assist a nonlawyer in activities that would constitute the unauthorized practice of law, as provided in Rule 5.5(b)[1]. It observed that Comment to Rule 5.5 recognizes that use of the nonlawyer to perform delegated functions would not be prohibited by Rule 5.5 as long as the lawyer supervised the delegated work and retained responsibility for it, as required by Rule 5.3. Nevertheless, based on what it discerned as a recurrent theme in the Michigan Rules defining a lawyer's obligations that the lawyer's expertise and professional judgment are integral parts of the service the lawyer provides to the client, and the inability to exercise judgment without personal contact, the Opinion concluded that the lawyer could not delegate the entirety of client communication to the nonlawyer.

In the eighteen years since RI-128 was published, a good deal has been written about the use of legal assistants,[2] and the role of nonlawyer assistants has substantially expanded.

It is not unusual for nonlawyer assistants to have specialized expertise in discrete subjects, which in some situations is or may be beyond the subject matter expertise of the lawyer supervising their work. Consider, for example, a retired fire loss adjuster acting as a legal assistant to a lawyer in a representation adverse to an insurance company respecting a fire loss claim; a licensed medical professional acting as a legal assistant to a lawyer in a case involving medical malpractice; or a retired lawyer relocated from another jurisdiction without being admitted in Michigan.[3]

While the overarching principles stated in RI-128 remain applicable -- that the lawyer always retains the professional responsibilities that require the lawyer to exercise professional judgment on behalf of the client, to make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the lawyer's professional obligations, and to avoid assisting the nonlawyer in the unauthorized practice of law -- given the dynamic nature of the practice of law and the increasing reliance of lawyers on the specialized expertise of legal assistants, the Committee cannot conclude that the bright line rule enunciated in RI-128 must apply in every case.

Considering the foregoing, we reach the following conclusions:

(i) A nonlawyer assistant may be directed by a lawyer to communicate with a client in order to gather information and to communicate the lawyer's advice to the client. The nonlawyer assistant's role may not go beyond this to involve the exercise of legal judgment, for example, by expanding the lawyer's advice or providing legal advice independent of that provided by the lawyer. The extent to which the legal assistant may engage in these client communications is a matter within the lawyer's professional judgment and no single answer can be articulated. The lawyer must provide appropriate training and supervision of the nonlawyer to meet her obligations under MRPC 5.3(b) and MRPC 5.5(b).

(ii) With respect to communications with third parties such as insurance adjusters within the contours of the question posed to the Committee, a nonlawyer assistant may be directed by the lawyer to communicate on behalf of the lawyer as long as the legal assistant genuinely functions as a conduit to request information and/or to provide information on the lawyer's behalf. Negotiations within parameters established by the lawyer would be permitted. So long as the nonlawyer assistant's role does not go beyond this to involve the exercise of legal judgment, the lawyer employing the nonlawyer assistant would not violate her professional obligations under MRPC 5.3(b) and under MRPC 5.5(b), if appropriate training and supervision are provided.

(iii) A lawyer electing to forego all direct communication with the client runs the risk of thereby violating her professional obligations under Rules 1.1, 1.4(b), 2.1, 5.3(b), and 5.5(b).

Although we conclude that the Rules of Professional Conduct do not preclude the reliance on nonlawyer assistants as the exclusive communication link in some matters and situations, the risk of the lawyer's failure to meet professional obligations is so increased that the practice should be carefully considered and astutely managed.

[1] Informal Opinion RI-128 expressly notes that the question of what constitutes unauthorized practice of law is a legal question, beyond the role of the Committee.

[2] See for example: State Bar of Michigan publication "Guidelines for Utilization of Legal Assistants" (issued April 23, 1993); ABA Model Guidelines for Utilization of Legal Assistants, as revised, 2004; National Association of Legal Assistants Code of Ethics and Professional Responsibility (2007 publication).

[3] Comment to Rule 5.3 notes that measures employed in supervising nonlawyers should take into account the fact that they do not have legal training and are not subject to professional discipline.