VIRGINIA UPL OPINION 191
Paralegals; Law Office Staff; Permissible Activities In Interaction With Clients.
I am writing in response to your inquiry of July 22, 1996, requesting an Unauthorized Practice of Law advisory opinion dealing with the functions of a law firm’s non-lawyer staff members. Specifically you have inquired whether a non-lawyer staff member may: (1) conduct an initial client interview; (2) determine the validity of a legal claim; (3) explain a fee agreement; or (4) explain a claim settlement or the results of settlement negotiations with an adverse party or their insurer.
The Committee reconsidered your inquiry at its January 8, 1998 meeting and has directed me to transmit its conclusions to you.
The appropriate and controlling Virginia Unauthorized Practice Rule is found in the Definition of the Practice of Law from the Rules of the Supreme Court of Virginia, Part 6, Section I(A) & (B) which, in pertinent part, precludes non-lawyers from advising anyone other than their regular employer in any matter involving the application of legal principles to facts, purposes or desires.
Also relevant is Disciplinary Rule 3-104 which permits an attorney or firm to employ non-lawyer personnel to perform delegated functions under the direct supervision of a licensed attorney. However, this Disciplinary Rule specifically prohibits a non-lawyer from counseling clients about legal matters or engaging in the unauthorized practice of law, and requires that the delegated work shall merge into the attorney’s completed work product. The attorney must examine and be responsible for all work delegated to non-lawyer personnel and must also assure compliance by non-lawyer personnel with the Code of Professional Responsibility. Moreover, this Disciplinary Rule emphasizes that the initial and continuing relationship with the client is the responsibility of the employing attorney.
Thus, the Committee is of the opinion that a non-lawyer employee working under the direct supervision of a Virginia attorney may participate in gathering information from a client during an initial interview (a client intake), provided that this involves nothing more than the gathering of factual data and the non-lawyer renders no legal advice. Va.S.Ct.R. Pt. 6, §I(A); UPL Op. 107. In contrast, a non-lawyer employee may not determine the validity of the client’s legal claim as that determination appears to directly involve the application of legal principles to facts, purposes or desires, and is therefore considered the practice of law and must be performed only by a licensed attorney.
A non-lawyer employee may perform certain activities related to the attorney/client fee agreement. The non-lawyer employee may transmit the document to the client and obtain the client’s signature on the document. While a non-lawyer employee is permitted to answer straight forward, factual questions regarding the fee agreement, such answers must not include any advice as to the legal ramifications of the contract provisions.
As to your final question regarding the permissible activities of a non-lawyer employee concerning settlement negotiations, the Committee is of the opinion that a non-lawyer employee may serve a limited role in that process. Specifically, the non-lawyer employee may transmit information and documents between the attorney and the client; thus, for example, that employee could share with the client the latest settlement offer. However, it would not be permissible for that employee to evaluate the offer or to recommend to the client whether or not to accept an offer; in contrast, it would be permissible for the non-lawyer employee to communicate with the client the lawyer’s evaluation or recommendation.
October 28, 1996
Revised and Reissued
April 15, 1998
Approved by VSB Council
June 18, 1998
September 29, 1998
Updated: Aug 28, 2006