“Mass tort attorneys must ensure compliance with new ABA guidance” —

• “True to their name, mass torts involve thousands, sometimes hundreds of thousands, of claims, myriad data points, and numerous steps from intake to resolution. The management of such legal endeavors requires nonlawyer staff and solutions capable of organizing, analyzing, and securely maintaining vast amounts of client information.”
• “In mass torts and class actions, it is common to delegate initial client intake to nonlawyers, whether that is support staff or technology platforms. When delegating tasks in that way, it is imperative that mass tort attorneys comply with all relevant ethical rules, opinions and laws, including the recent guidance from the American Bar Association (ABA).”
• “The ABA’s recently released Formal Opinion 506, opens new tab addresses a lawyer’s ethical obligations when delegating specific prospective client intake tasks to a nonlawyer… For mass tort attorneys seeking to retain clients and avoid potential legal pitfalls, a comprehensive understanding of Formal Opinion 506 is crucial. In order to remain in compliance with this guidance, there are a few crucial steps mass torts attorneys must take.”
• “Delegating prospective client intake tasks to nonlawyer assistants, whether that is staff or technology, requires establishing clear and comprehensive policies within a law firm. These policies should outline the specific tasks that can be delegated, emphasizing the importance of following ethical standards.”
• “Training should be designed to instruct nonlawyer staff on the ethical aspects of their responsibilities and ensure they have a comprehensive understanding of the limitations imposed by ABA Model Rule 5.3 and Formal Opinion 506.”
• “For example, Formal Opinion 506 states, “trained intake personnel may check for conflicts of interest, collect basic information from prospective plaintiffs or class members for lawyers to ascertain their eligibility to make a claim, and explain how fees and costs are charged in such cases.” But as detailed below, there are certain questions to which only a lawyer can respond.”
• “Continuous supervision is important to monitor the performance of nonlawyer assistants and address any issues promptly, maintaining the integrity of client interactions.”
• “At intake, always provide the option for a potential client to speak with the attorney handling their case. Confirming that prospective clients have the opportunity to communicate directly with the attorney who will be handling the case is fundamental to adhering to Formal Opinion 506. Lawyers must take steps to guarantee that prospective clients have the opportunity to discuss fee agreements and the scope of representation with the specific lawyer that would be representing them, prior to signing an engagement letter — not just an attorney employed by an intake center or marketing firm.”
• “Additionally, the Opinion discusses the application of Model Rule 5.5, opens new tab, which determines whether nonlawyers can answer specific legal questions based on jurisdictional definitions. As the Opinion states, ‘If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law…'”
• “Therefore, the intake process should be designed to facilitate attorney-client communication, allowing clients to discuss their matters, ask questions, and seek clarification on legal aspects, fees, the scope of representation, and objectives. In offering this option, attorneys not only comply with this new guidance but also create transparency and trust in the attorney-client relationship.”
• “Nonlawyers can perform an initial screening of prospective clients by checking for conflicts of interest, utilizing website intake questions, and employing conflict-checking algorithms. By checking for conflicts at the outset, law firms can ethically represent the prospective client without fear of conflicting with existing clients or other obligations.”
• “Ensuring compliance with ABA guidelines at every stage of client intake is crucial, especially for mass tort attorneys who are often representing thousands of plaintiffs. By performing the necessary work at the beginning of a client relationship, firms can avoid ethical pitfalls and focus on their important work seeking justice for their clients.”

“SRA tells employers what they cannot ask in-house lawyers to do” —

• “Draft guidance for employers of in-house solicitors, which aims to establish a mutual understanding of what lawyers can and cannot do, has been published by the Solicitors Regulation Authority (SRA).”
• “Among other things, it says employers should not put in place personal objectives, performance rewards and incentives that create an ‘inherent risk of conflict’ between the regulatory and legal objectives of the role.”
• “An example of this would be a bonus focused solely on completing a deal rather than completing it ‘in a way that aligns to your agreed legal and regulatory risk appetite.'”
• “The regulator has issued three other pieces of draft guidance to support in-house solicitors, covering identifying the client when working in-house, handling internal investigations, and reporting wrongdoing by an employer.”
• “The SRA is seeking views on the drafts before it formally adopts them.”
• “They are a response to an SRA review which found last year that in-house lawyers were generally able to withstand pressures on their independence but a minority reported demands to act unethically.”
• “The draft guidance for employers stresses that in-house lawyers ‘should be empowered and supported to raise concerns,’ and not disciplined or punished for doing so.”
• “Employers should ‘provide systems and processes to allow solicitors to meet their obligations to provide independent and impartial advice, avoid conflicts of interest and act in the best interest of their client.'”
• “This included allowing the legal function to be able to participate in leadership and operational roles/decisions across the business, and helping the board and executive to set their legal and regulatory risk appetite and deliver against this.”
• “‘However, solicitors should not be penalised for declining to participate in an activity or role where there a real likelihood of conflict of roles or of infringing regulatory obligations would arise from this participation. For example, acting as the director of a subsidiary or leading a sales initiative.'”
• “In-house lawyers are told that, where wrongdoing persists despite their reporting concerns, ‘you should carefully consider whether you can meet your regulatory obligations and continue working for your organisation.'”

For more, see the SRA guidance: “Working in-house” —

• “Following on from our thematic review, and our wider programme of activity directly engaging with in-house solicitors, we have developed a range of draft resources and guidance materials, specifically tailored to the in-house sector.”
• “We are publishing these materials in draft form to give the wider in-house community an opportunity to consider the content, and provide us with any feedback ahead of them being finalised. Please provide any feedback, via our online form, by 19 April 2024.”
• “The materials include:
  • Guidance for employers on a solicitor’s professional obligations
  • Key points for governing boards and chief executives
  • Guidance and case studies on identifying your client when working in-house
  • Guidance and cases studies on reporting concerns about wrongdoing when working in-house
  • Guidance on running internal investigations”