Performing Background Checks When Hiring a Freelance Lawyer

October 17, 2012 Leave a comment

Hiring attorneys should complete background checks of all potential freelance attorneys to make sure that confidential information doesn’t fall into the wrong hands. Checking references and completing background checks is an easy and inexpensive way for hiring attorneys to play it safe and ensure confidentiality.

The importance of confidentiality within the law cannot be understated. The obligation of confidentiality is borne of Model Rule of Professional Conduct 1.6, Confidentiality of Information, interpreted in the context of freelance attorneys in ABA Formal Op. 08-451. The opinion states that hiring attorneys should make “reasonable efforts to ensure that the conduct of the lawyers or nonlawyers to whom tasks are outsourced is compatible with her own professional obligations as a lawyer with ‘direct supervisory authority’ over them.”

Adding background checks to the recruitment process is an important step that hiring attorneys can take towards fulfilling this obligation. Moreover, background checks give hiring attorneys the piece of mind that they have screened out potentially problematic attorneys. According to the 2008 opinion, hiring attorneys should at least “consider” performing background checks on potential freelance attorneys.

There are more tips on maintaining confidentiality while taking advantage of freelance attorney services in The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market.

Finding Freelance Attorney Right

September 19, 2012 Leave a comment

Many hiring attorneys bring on freelance lawyers to increase their efficiency.  Hiring the wrong freelance lawyer, however, can have the opposite effect.  By carefully screening for a freelance lawyer who matches the dynamic and style of the law firm, hiring attorneys can better find the freelance lawyer that is right for them.

As part of the screening process, it is imperative to request writing samples from potential freelance lawyers.  Review these materials and consider whether they are of the quality that you would be willing to adopt as your own.  Focus on what matters for the types of projects you wish to outsource. Eloquence, for instance, will be more important for appellate briefs than discovery documents. If you are a stickler for grammar, you will want to find a freelance lawyer who has the same penchant so that you do not find yourself editing their work for comma placement.

After screening and hiring a freelance attorney, you should continue to gauge her overall characteristics.  The first assignment you give a new freelance lawyer should not be a mission-critical matter. You would not hire an associate and ask her to chair a major felony trial on her first day at work. Give a test assignment or two, something smaller that is useful to have done, but will not leave you with a significant disadvantage if it does not get done properly or on time. These assignments will allow you to gauge the freelance lawyer’s proficiency, reliability, and work style. If you are satisfied with her performance and product, then you can gradually increase the size and importance of the assignments you give her.

By taking the time necessary to screen, hire, and test freelance lawyers to ensure that they are the right fit for their firm, hiring attorneys will be in the best position to reap the benefits inherent in bringing on a freelance lawyer.

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

Using Record-Keeping to Avoid Freelance Lawyering Conflicts

August 15, 2012 Leave a comment

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.

What is the Scope of Work that a Freelance Lawyer Can Perform?

June 27, 2012 Leave a comment

The ABA Standing Committee on Ethics and Professional Responsibility has addressed this question in Formal Opinion 08-451. In this Opinion, the Committee explains that attorneys may engage other lawyers working as independent contractors to perform a wide range of legal services. The Opinion states that these tasks can range from drafting patent applications to developing legal strategies to preparing motion papers for litigation.

The Committee further explains:

Outsourcing affords lawyers the ability to reduce their costs and often the cost to the client to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer’s own staff. In addition, the availability of lawyers and nonlawyers to perform discrete tasks may, in some circumstances, allow for the provision of labor-intensive legal services by lawyers who do not otherwise maintain the needed human resources on an ongoing basis. A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support.

In essence, subject to ethical requirements, the scope of work that a freelance lawyer can assist you with is limited only by their capabilities and your ability to delegate.

Source: ABA Formal Opinion 08-451.

This Opinion is discussed in further detail in The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market.

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What Should Hiring Attorneys Bill the Client for a Freelance Lawyer’s Time?

June 18, 2012 Leave a comment

The total fee charged to the client for the freelance lawyer’s services must be reasonable for the work provided. ABA Formal Op. 08-451, Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services.

There is no set formula for determining whether an hourly rate is reasonable, but researching rates charged in your local market can give an indication of the appropriate range. In rural areas of the U.S., attorneys’ hourly rates often range from $175 to $250. In metropolitan areas, hourly rates can range from $275 to $450 and up.

When in doubt, a hiring attorney should review local ethical opinions to see what his jurisdiction considers a reasonable hourly rate to charge for legal services.

Generally, hiring attorneys bill the clients for work done by freelance lawyers at the same rate as they would for an associate’s time. This is typically slightly less than what they charge for their own time.

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

Solo and small firm attorneys should contact me by email or phone at 608-620-3529 to schedule a free consultation.

Disclosing the Use of Freelance Lawyers to Clients

May 22, 2012 Comments off

One of the first questions hiring attorneys ask me is whether they have to disclose the use of a freelance lawyer to their clients. The short answer shouldn’t surprise them — it depends.

If a hiring attorney passes the cost of the freelance lawyer as a cost or disbursement, then he must disclose the use of a freelance lawyer and is not permitted to charge a markup.

If the hiring attorney passes the cost of freelance services along to the client as legal services, then disclosure obligations become murkier. Generally speaking, if there is no client information of a sensitive nature released to the freelance lawyer to do the project and the hiring attorney is closely supervising the freelance lawyer’s work and adopting it as his own after exercising independent judgment, then the hiring attorney does not have to disclose the use of the freelance lawyer.

However, if any of those conditions are not satisfied, then use of the freelance lawyer must be disclosed.  For projects requiring extremely sensitive client data be shared with the freelance lawyer, then the client must give informed consent.

Now, all this is general because (1) it is pursuant to the ABA Formal Opinions on the matter (00-420, 08-451, and, to a lesser extent, 88-356), and state ethical requirements do vary (sometimes considerably), and (2) because this is a simplification of a rather complex ethical inquiry and is instead a broad statement of what appears to be the trend in professional responsibility.

The hiring attorney may choose to simply disclose the use of a freelance lawyer to his client to avoid having to figure out the ethical obligations particular to his jurisdiction (although a good freelance lawyer would offer to figure it out for her Attorney Client). The good news is that hiring attorneys generally do not have to disclose the amount of the mark up, even when they disclose use of the freelance lawyer (I’m actually not aware of any exceptions to this generality, but that’s not to say none exist).

So, the hiring attorney tells his client: “Hey, I’ve got someone I like to use to do these summary judgment motions, and that will cost you $175 an hour instead of my usual $225 an hour. She’s pretty quick, so I think it’ll be more cost-effective for you.  I’ll supervise her work and review it to make sure it’s what we’re looking for, but she’s done a great job for me in the past.”

Most clients jump at the opportunity to save between $50 and $200 an hour (depending on the difference between what the hiring attorney bills for an associate’s or freelancer’s time and what he bills for his time), and will appreciate that their attorney is thinking about handling the case in a cost-effective manner.

The hiring attorney’s client will not know whether he the freelance lawyer is paid $75 an hour or $150 an hour — that’s a private arrangement between the hiring attorney and the freelance lawyer, same as it would be for an associate. The hiring attorney is left with increased revenues, and more free time to work on other pursuits, professional or personal.

Solo and small firm attorneys should contact me by email or phone at 608-620-3529 to schedule a free consultation.

Win a Free Copy of The Freelance Lawyering Manual!

May 21, 2012 Leave a comment

The Solo Practice University Facebook page is running a contest to give away a copy of my book, The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market. Check out SPU’s Facebook page and “like” the contest link to enter!