Legal Ethics of Freelance Lawyering

You may be new to freelance or contracted lawyers, so I want to share some relevant information about this. Below are a set of links to short blogs about freelance or contract lawyers from persons working in the field.  Following the blog sites, I’ve included some actual Iowa and ABA ethics opinions about these topics. The following posts address some of the common concerns that users and providers might have about the practice:

Iowa Ethics Opinion No. 13–03 “The Use of Contracted Lawyers” from the Iowa Committee on Ethics and Practice Guidelines issued 27 August 2013. Following this, I post some relevant ABA opinions and other resources. (You can expand the view into a new tab by using the arrow button in the upper right-hand corner of the viewer.) (My highlighting.)

IA Ethics Opinion 13-03 Use of Contracted Lawyers

The important points:

1. Contract lawyers are acceptable and a long-recognized practice.

2. When hiring a contract (freelance) lawyer, the retained (hiring) firm must assure the competency of the contracted lawyer for the work required, as they would with hiring an associate.

3. The retained (hiring) firm or lawyer retains supervisory control and responsibility for the contracted lawyer.

4. The retained (hiring) lawyer must obtain the consent of the client for the use of the contracted lawyer, assuming that an assignment involves some client-related information. (In this particular, Iowa differs from some jurisdictions.)

5. The retained (hiring) attorney may mark-up the cost of the contracted attorney to the client so long as the fee remains reasonable unless the retained attorney bills the cost as an expense, in which case such a mark-up is improper. (So why would you ever bill the contract lawyer as an expense?)

6. The contracted attorney retains responsibility of assuring that no conflicts exist in a case with former clients or associates.

The ABA sets standards for the use of contract lawyers in its Ethics Opinion 08-451, which I set forth below. It’s important for a couple of reasons not addressed in the Iowa opinion. It concludes that a retained (hiring) lawyer may hire a contract lawyer who is not admitted to practice in the hiring lawyer’s jurisdiction. Such a hire does not constitute the unauthorized practice of law on the part of the contracted attorney. The hiring lawyer retains responsibility for meeting all of the requirements of the jurisdiction in which the lawyer practices. The opinion allows  a mark-up on the fees of the contracted attorney passed on the the client so long as the fees are reasonable.

ABA Outsourcing Opinion 08-451

Below are citations to additional ABA Ethics Opinions that deal with issues involving contract or freelance lawyers:

ABA Formal Opinion 00-420 on Surcharge to Client for Use of a Contract Lawyer  This concludes that lawyers may surcharge fees to clients billed by the contract lawyer as long as the fee remains reasonable. However, if passed along as an expense, the bill may not be surcharged.

ABA Formal Opinion 88-356 on Temporary Lawyers. The Summary:

In order to satisfy the requirements of the model rules and predecessor model code when a lawyer is engaged temporarily to work for clients of a law firm (including a corporate legal department), the lawyer and the firm must exercise care, in accordance with the guidelines in this opinion, to avoid conflicts of interest, to maintain confidentiality of information relating to the representation of clients, to disclose to clients the arrangement between the lawyer and the firm in some circumstances, and to comply with other applicable provisions of the rules and code. The use of a lawyer placement agency to obtain temporary lawyer services where the agency’s fee is a proportion of the lawyer’s compensation does not violate the Model Rules or predecessor Model Code as long as the professional independence of the lawyer is maintained without interference by the agency, the total fee paid by each client to the law firm is reasonable, and the arrangement otherwise is in accord with the guidelines in this opinion.

 

Cited in Alderman, Kimberly (2011-12-01). The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market (Kindle Locations 1749-1756). Erleichda Press. Kindle Edition.(By the way, an excellent resource for both freelance lawyers and their prospective clients.)

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