If you’re negotiating fees with an outside counsel’s assistant, depending on how specific you get, you could be putting your outside counsel in ethical jeopardy; only lawyers can negotiate fees tied to the scope of work you want done, an American Bar Association opinion says. 

Although nonlawyer legal assistants can discuss fees, the back-and forth must be about what the law firm charges in general, not what the fee would be specific to the work you want done. 

“Nonlawyers may provide general information about how the firm charges legal fees, such as explaining that fees are charged hourly, or on a contingency basis, or the matter is billed at a fixed rate,” the ABA says in the opinion, released June 7 under its Model Rules for Professional Conduct. 

Assistants can also talk about how payments are processed. But once the discussion veers into a negotiation over how much to pay for the work you want done, that puts the assistant at risk of engaging in the unauthorized practice of law. This, in turn, puts the lawyer the assistant is working with in potential violation of the law as well. 

“Lawyers [are prohibited] from assisting others in practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction,” the opinion says.

ABA model rules are clear that fee discussions are within the responsibility of the lawyer, not the assistant.

“Rules … require a lawyer to communicate with clients about fees, the scope of representation, and any limitations thereon,” the opinion says. 

If a client has a fee-related question specific to the scope of work they want done, the best practice is for the assistant to take the question back to the lawyer and then relay the answer to the client. 

“A nonlawyer … may convey a client question to the lawyer, have the lawyer determine the answer to the question, and then relay the lawyer’s answer to the client,” the opinion says.  

If the question is more complicated, the lawyer might bypass the assistant and talk directly with the client. “The lawyer will be responsible for determining if the inquiry is best answered by the lawyer communicating directly,” the opinion says. 

Intake duties

The issue of fee discussions is taking on heightened importance as nonlawyer assistants take on more client intake duties.  

The ABA says it’s okay for the assistant to obtain initial information about the matter, perform a conflict check, determine whether the assistance sought is in an area of law germane to the lawyer’s practice and assist with answering general questions about the fee agreement. 

The assistant can also obtain the prospective client’s signature on the fee agreement as long as the client’s given an opportunity to communicate with the lawyer.  

Lawyers, in turn, are expected to train and supervise their assistants, including on the unauthorized practice of law. 

“Without proper policies, training, and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers,” the opinion says. “The practice must be carefully and astutely managed.” 

The opinion was issued by the ABA’s Standing Committee on Ethics and Professional Responsibility.