Five Tips for Using Freelance Attorneys

With the advent of the “gig economy” and some significant changes in legal sector demographics (aging lawyer population, fewer young people entering the profession, a greater desire for work/life balance, etc.), lawyers in the modern economy would be foolish to ignore freelance legal work.  Whether a lawyer is striving to grow and scale his or her practice or wants to make a living as a lawyer in a more non-traditional way, hiring or working as a freelance attorney can be a significant boon. With the advent of the internet (and, of course, the attendant land rush of entrepreneurs trying to capitalize on the freelance legal market) lawyers seeking freelance legal assistance or those seeking to freelance have many ways to connect.

However, just because it’s the 21st century, and just because this is the internet, doesn’t mean that a lawyer’s ethical obligations are suspended. Lawyers hiring or seeking to be freelance lawyers can ethically capitalize on this opportunity by keeping the following tips in mind. (Note: we’re referring to the ABA Model Rules here because they’ve been adopted (more or less) in most jurisdictions. Your mileage may vary in your local jurisdiction.)

1. Obtaining client consent. Is the engagement letter enough?

Client consent is a key ethical requirement to a successful deployment of freelance attorneys in an outsourcing lawyer’s practice. ABA Rule 1.6 establishes the baseline confidentiality obligations for a lawyer. Absent informed consent, an implied authorization, and some other key but not necessarily common exceptions, a lawyer “shall not reveal information relating to the representation of a client.”  ABA Ethics Opinion 88-356 is a helpful opinion regarding lawyers’ ethical use of freelance attorneys. The ABA added to that opinion with ABA Ethics Opinion 08-451, which adapted much of the earlier opinion to the digital age (at least as that age existed a decade ago). In brief, the firm need not necessarily obtain client consent even explicitly in the engagement letter for closely managed freelance attorneys over whom the firm exercises a high degree of supervision and control. However, to the extent that the freelance attorney is either operating with a high degree of independence or even practicing law directly on the client’s behalf, the firm must obtain the client’s consent. The short version: if a firm believes it will be utilizing outsourced lawyers, it’s wise to include language that obtains the client’s consent to use freelance lawyers in the engagement agreement. That will probably suffice for the use of freelancers whose work or work product are closely supervised. If the freelance lawyer is interacting directly with the client and practicing law on the client’s behalf, it is probably best to obtain the client’s specific consent for that lawyer to participate, or amend the engagement letter to specify that the freelance lawyer will also be working with the client.

2. Paraprofessionals + client contact owner.

Speaking of those freelance lawyers who are closely managed, a couple of ethical traps for the outsourcing unwary can be avoided with two key business decisions related to closely managed freelance lawyers. The first is to try to restrict these freelance attorneys’ contact with the outsourcing lawyers’ clients. As described below, there’s good reason to ensure that freelance lawyers understand their obligations as they relate to clients of lawyers that have outsourced to them. But, outsourcing lawyers can avoid even more significant problems by prohibiting freelance lawyers from engaging in the practice of law and working directly with clients. Beyond the marketing benefits described in Tip #3, this practice can help short-circuit the risks related to rules 5.1 and 5.3 also noted in Tip #3. Taking this all one step further, outsourcing lawyers can hire freelance legal help as paraprofessionals instead of as lawyers. Provided that the outsourcing lawyer prohibits the freelance attorney from having client contact as an extra precaution, the outsourcing lawyer need not worry about the risks described in Tips #3 or #4. In such a case, the outsourced lawyer is entirely responsible for the freelance lawyer’s work product, including ensuring that it is in accordance with the applicable law.

3. Don’t “set it and forget it.”

The cost of customer acquisition is so high and customer retention so valuable that, from a marketing perspective alone, it’s hard to believe a lawyer would outsource something to a freelance lawyer and then allow that lawyer to proceed unsupervised. Nevertheless, ABA Model Rules 1 and 5.3 impose a duty for lawyers with “direct supervisory authority” over other lawyers to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct;” and “that the person’s conduct is compatible with the professional obligations of the lawyer” respectively. Outsourcing lawyers: don’t “set it and forget it.” Make sure that a freelance lawyer both (a) respects the effort exerted to acquire and the importance of retaining a client, and (b) knows and understands their ethical duties and professional obligations.

4. Say No to UPL, OK?

One serious, though not necessarily common, a risk associated with freelance legal work is the unauthorized practice of law or UPL. ABA Model Rule 5.5 prohibits lawyers not properly licensed in a given jurisdiction as well as non-lawyers from providing legal services absent the supervision of a properly licensed attorney. It also prohibits properly licensed lawyers from assisting unlicensed individuals to deliver legal services in a given jurisdiction. Beyond ensuring that their engagement letters include authorization to use freelance attorneys (see Tip #1), hiring attorneys who wish to have freelance attorneys deliver legal services directly to their clients need to make sure that the freelance attorney is licensed to deliver services in the state of the client’s legal issue. Otherwise, the hiring attorney could be found to have violated rule 5.5 because, as 5.5 notes, properly licensed lawyers can be found liable for assisting improperly licensed lawyers deliver legal services in a foreign jurisdiction.

5. Make a few bucks.

The Model Rules and related ethics opinions are unified in the position that attorneys can make money using freelance attorneys. In fact, the U.S. Supreme Court itself has said that paralegals, law clerks, and other paraprofessionals’ services may be billed at “prevailing market rates” rather than the rate actually paid to the paraprofessional. Model Rule 1.5 establishes that attorney’s fees must be “reasonable.” In its Formal Opinion 00-420, the ABA Standing Committee on Ethics and Professional Responsibility agreed with the Supreme Court that attorneys may bill the services of contract lawyers to their clients at prevailing market rates as long as the rates satisfy Rule 1.5(a)’s reasonableness requirement. So, as long as the outsourcing attorney charges a reasonable rate, defined generally as the “prevailing market rate,” for freelance work to a client, an outsourcing attorney is not prohibited from making a profit on work completed by freelance attorneys.

Now, this isn’t an exhaustive list of lawyers’ obligations related to freelance lawyers. Of course, lawyers must always be mindful of the entirety of their ethical obligations. But keeping these rules in mind is a great start to using freelance lawyers, or being a freelance lawyer yourself, without running afoul of the applicable ethical rules. And if there’s one thing that both hiring and freelance lawyers can agree upon, it’s that freelancing is likely to become more pervasive and not less as law firms and the practice of law continue to evolve.

About the Authors

Dan Lear is a technology lawyer, facilitator, and blogger and is currently the principal at Right Brain Law, a legal technology consulting firm. Find him on Twitter at @rightbrainlaw. Kristin Tyler is an attorney and co-founder of LAWCLERK, where attorneys go to hire freelance lawyers.  Find her on Twitter @KristinTyler.

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