FLORIDA BAR ETHICS OPINION OPINION 38-6 April 13, 1838 Advisory ethics opinions are not binding It is not impermissible perse for's lawyer to have 9 nonlawyer employee conduct the initial interview with a new client, although the practice is discouraged and must adhere to certain guidelines. RFC: 4-1.3, 4-3 5 0] CPR: OR 3-104 Opinions: 70-62, 73-41: ABAInform: 988 The Committee has been asked to consider what a legel essistent or other monlawyer employee may and mey not do in an initial interview with prospective clients. Rule 4-3 3 of the Rules Regulating The Florida Ber provides in pertinent part: With respect to e nonlawyer employed or retained by or associated with a lawyer: [:)A partner in s lew firm shall make reasonable efforts to ensure that the firm hes in effect measures giving reasonable essurence thet the person's conduct is compatible with the professional obligations of the lewyer; (0] A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer Although this rule does not specifically address the question posed to the Committee, the former rule that governed this eres (OR 3-104, Code of Professional Responsibility) provided some insights that remain valid under the current rules. DR 3-104 states that while nonlawyer employees may perform delegated functions under the direct supervision of a lawyer, they may not counsel clients about legal matters or otherwise engage in the unauthorized practice of low. The disciplinery rule further states that the initial end continuing relationship with the client is the responsibility of the lawyer, with the work of the nonlawyer employee being merged into the attorney's completed product. Of course, the lawyer must examine end be responsible for ell work delegated to the nomlawyer employee. In eddition, DR 3-104 points out that nonlawyer employees must first disclose their nonlewyer stetus before communicating with clients or the public Further insight in this aree may be gained from two Floride ethics opinions. Opinion 70-62 provides that on ettomey mey not delegate to _ legal assistant any activity requiring the attorney's personal judgment and participation. Opinion 73-41 states that an attorney may use : legal assistant only for work that does not constitute the practice of lew. This is consistent with Rule 4-9 5 3). Although the Florida opinions do not eddress the specific issue presented to the Committee, en ABA opinion does. 43A Informal Opinion 938 concludes: While we think it is appropriate for s lawyer to provide himself with such assistance es he deems necessary in order efficiently end economically to perform his work end that of his office, any leyman hired by him should not give legal edvice or ect es : lawyer. We think that the system of conducting initial interviews with clients by nom-lawyers could be a violation of the Canons of Ethics, if any advice were given or if the client did not subsequently actually see the lawyer end confer with him. Accordingly, although we do not condemn the prectice which you suggest in all instances, we do think it hes great dangers and should be carefully supervised so that in practice it complies with the Canons. It would be better if the prospective dient were first interviewed by the lawyer and then by the lay ssuistent. However, 9s above stated, we do not categorically state that this is essential. Aftere review of the above-stated information, the Committee concludes that while it is preferred that en ettorney conduct the initial interview with prospective clients, the use of nonlawyer employees for this purpose is not prohibited per se. However, the lawyer is responsible for careful, direct supervision of nonlawyer employees and must make certain that (1) they clearly identify their nonlawyer status to prospective clients, (2| they are used for the purpose of obtaining only fectus information from prospective clients, and (3] they give no legal advice concerning the case itself or the representation egreement. Any questions concerning an assessment of the case, the applicable lew or the representation agreement would have to be answered by the lawyer. Furthermore, it is imperative that the lawyer evaluate ell information obtained by e nonlawyer employee during the client interview and that the lawyer subsequently confer with the client and establish a personell and continuing relationship