Using Record-Keeping to Avoid Freelance Lawyering Conflicts

The ethical rules pertaining to conflicts apply to freelance lawyers as well as hiring attorneys.  Although the non-attorney client does not directly hire the freelance lawyer, the ethical obligations of the hiring attorney are imputed to the freelance lawyer. Accordingly, both freelance lawyers and hiring attorneys are obligated to screen potential cases for conflicts before the freelance lawyer gains access to client files or begins work.

A good practice in this respect is for law firms to maintain records of the matters outsourced to freelance lawyers.  Such a record-keeping system will facilitate conflict checks for every assignment. Some jurisdictions even require hiring attorneys to take this step. Required or not, keeping these records is a good idea.

While helping to avoid conflicts, maintaining proper documentation of the screening process also serves to protect the hiring attorney.  If there is an attempt to disqualify the freelance lawyer via an alleged imputed conflict or if there is an accusation of an ethical violation, the documentation will form the basis for a defense.

It is important to remember that keeping records of the cases and clients a hiring attorney has outsourced is useless unless the records are actually used. When first discussing a potential assignment, the hiring attorney should give the freelance lawyer the names of all parties involved, before divulging confidential details about the case. This quick check will help prevent accidental dissemination of sensitive information.

This post is adapted from The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market.

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