Use of Nonlawyer Field Representatives to Obtain Representation Contracts
Adopted: July 19, 2013
Opinion rules that a law firm may send a nonlawyer field representative to meet with a prospective client and obtain a representation contract if a lawyer at the firm has reviewed sufficient information from the prospective client to determine that an offer of representation is appropriate.
Inquiry #1:
ABC law firm employs a large staff of nonlawyers, including paralegals, assistants, and others. Among the nonlawyer staff are employees called “field representatives.” When a prospective client contacts ABC, the firm sends a field representative to the prospective client’s home or other location chosen by the prospective client. The field representative provides information about the firm in an effort to convince the prospective client to choose firm ABC for representation. If the prospective client agrees, the field representative provides a representation contract and obtains the client’s signature on the contract. The field representation also obtains information from the prospective client concerning the representation.
No lawyer with the firm consults with the prospective client before the field representative meets with the person. No lawyer with the firm reviews the information obtained by the field representative before the field representative obtains the client’s signature on the representation contract. Is ABC’s use of field representatives in this manner permissible under the Rules of Professional Conduct?
Opinion #1:
No. A law firm may not send a nonlawyer field representative to meet with a prospective client and obtain a representation contract when no lawyer with the firm has reviewed the prospective client’s relevant facts and circumstances to make an initial determination that an offer of legal services is appropriate.
Inquiry #2:
If a lawyer at the firm has reviewed sufficient information from the prospective client to determine that an offer of representation is appropriate, may a firm employ a field representative to meet with the prospective client and obtain a representation contract?
Opinion #2:
The Ethics Committee has previously determined that a lawyer may delegate certain tasks to nonlawyer assistants. See, e.g., RPC 70, RPC 216, 99 FEO 6, 2002 FEO 9. Pursuant to RPC 216, when a lawyer delegates a task to a nonlawyer, the lawyer has a duty under the Rules of Professional Conduct to take reasonable steps to ascertain that the nonlawyer assistant is competent; to provide the nonlawyer assistant with appropriate supervision and instruction; and to continue to use the lawyer's own independent professional judgment, competence, and personal knowledge in the representation of the client. See also Rule 1.1, Rule 5.3, Rule 5.5.
In 2002 FEO 9 the Ethics Committee specifically determined that a nonlawyer may oversee the execution of real estate closing documents and the disbursement of the proceeds even though the lawyer is not physically present at the closing. 2002 FEO 9 states that, in any situation where a lawyer delegates a task to a nonlawyer assistant, the lawyer must determine that delegation is appropriate after having evaluated the complexity of the transaction, the degree of difficulty of the task, the training and ability of the nonlawyer, the client's sophistication and expectations, and the course of dealing with the client. The opinion holds that the lawyer is still responsible for providing competent representation and adequate supervision of the nonlawyer.
Similarly, under certain circumstances, a nonlawyer field representative may oversee the execution of a representation contract. The firm lawyer must consider the factors set out in 2002 FEO 9 and determine whether such delegation is appropriate.
The lawyer must also take precautions to avoid assisting the unauthorized practice of law. See Rule 5.5(d). The lawyer must instruct the field representative to disclose to the prospective client that he is not a lawyer and that he cannot answer any legal question. The lawyer must also admonish the field representative not to provide legal advice and to contact the lawyer should a legal question arise. Likewise, the lawyer must be available by some means to consult with and answer any legal questions the prospective client may have.