jim@USLegalWriting.com

Is Outsourcing to a Freelance Attorney an Option? What’s In It for

YOU?

Crucial Questions & Answers

2

www.USLegalWriting.com 207-701-1393

If you’re reading this report, you’re probably already thinking that some temporary, specialized legal help for your practice would be a good thing. Maybe you’ve had some of these thoughts (maybe all of them):

“I have two hearings this week and a trial brief due in a third case on Friday. There’s no way I can do it all, even if I give up eating and sleeping. “

“I need to work on the brief in the Smith case, but I really don’t want to. I’d much rather get ready for trial in the Jones case. It would be really fantastic if I could get somebody good to do this brief.”

“My client base is growing, I’m getting more and more work, and I really need some help; but I don’t want the cost and responsibility of bringing in an associate.”

If these concerns are familiar to you, you’re not alone. There are few solo or small firm lawyers who don’t face these issues on a regular basis. In my early years as a solo, I dealt with them constantly. Unfortunately for me, in those days (the mid ‘80s) freelance lawyers were not available. If they existed at all back then, they kept themselves well hidden and I didn’t hear about them. As my solo practice took off, I found that I had only a couple of choices, neither of them pleasant:

3

www.USLegalWriting.com 207-701-1393

I could just keep grinding out the hours (often 50 or 60, sometimes 70+ hours per week), and let all those extra hours

• take me away from my family life, • obliterate my leisure time, and, over the long haul • wear me down physically and mentally.

Or, I could bite the bullet, bring in another lawyer, and accept the inevitable expense, uncertainty and additional responsibility associated with hiring a new, full-time professional.

Today, there’s a third choice. Today a solo or small firm attorney can • Respond to a growing client base or a spurt in client activity, • Provide more services, • Focus on more satisfying work, • Make more money,

and do it all without the necessity of hiring an associate or bringing in more partners.

The solution: Find yourself a freelance lawyer.

OK, so you’re thinking about it. Sure, it sounds good, and it would be nice to get some relief from the pressures of your practice. But should you do it? Should you actually hire a freelance attorney? Probably. But if you’re a good lawyer, you like to think things through before you take a major step, especially when it comes to providing services to your clients. Here are some FAQs and answers that should help you decide whether hiring a freelance lawyer is right for your practice.

Question 1: First things first--Is this really an option?

Answer: This question is really several questions: Is it legal? Is it ethical? Is it OK with the American Bar Association? Do the Model Rules of Professional Conduct allow it? The answer to all of the above is Yes.

4

www.USLegalWriting.com 207-701-1393

On August 5, 2008, the ABA’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 08-451, entitled “Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services.” You can read it here: http://www.aapipara.org/File/Main%20Page/ABA%20Outsourcing%20Opinion.pdf Among other things, this opinion recognizes three facts about outsourcing:

• Law firms often hire lawyers as independent contractors to provide a wide variety of legal services. These include legal research, drafting of legal documents, and development of legal strategies in ongoing litigation. This is a growing trend.

• Because the costs of legal services vary greatly from region to region, outsourcing can reduce what a hiring firm must pay for legal services, and in turn, what that firm must charge its clients.

• Outsourcing allows a lawyer to provide labor-intensive services on a case-by-case basis without the necessity and expense of maintaining the extra staff the rest of the time. This enables solo and small firm attorneys to be more competitive in the law services marketplace.

The Standing Committee said that “There is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by Rule 1.1.” And what if the freelance attorney is not admitted to practice where the hiring lawyer or firm is located? Is this a problem? The short answer is no, as long as the freelancer will not be appearing in court, signing pleadings, or rendering advice directly to the client (is limited to “in house” services). It is obvious that the ABA’s Ethics and Professional Responsibility committee put a lot of thought into Formal Opinion 08-451. It is equally obvious from a reading of the entire opinion that the committee understood very well that often freelance lawyers live and practice in jurisdictions far removed from the hiring attorney’s home base. This clearly is OK, as long as the hiring lawyer exercises supervision over the freelance lawyer and maintains direct responsibility to the client. Specifically, the committee said that

5

www.USLegalWriting.com 207-701-1393

“Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the [hiring] lawyer remains responsible for the work being performed and that the [freelance lawyer] is not held out as being a duly admitted lawyer [in the hiring lawyer’s state].”

Formal Opinion 08-451. So there you have it. Outsourcing to a freelance attorney is an accepted practice; and as long as the freelancer limited to “in house” activities and services, it doesn’t matter where they are. Not only is it ethically and professionally just fine; it’s a very good way to improve client services and reduce costs at the same time.

Question 2: What exactly is a freelance lawyer anyway?

Answer: Generally, the term “freelance lawyer” (or “freelance attorney”) means an attorney (a person who has a JD) who provides specialized services directly to practicing lawyers or law firms and not to the general public. This broad definition generally does not include lawyers who provide their services through employment agencies. These folks are usually called “contract” attorneys, to distinguish them from those of us who work alone, and deal directly with hiring attorneys or firms without using an agent or other intermediary. In this report, the term “freelance attorney” refers to the independent contractor, not to the lawyer who works through an agency.

Question 3: What’s the difference between hiring a freelance lawyer and a new associate?

Answer: There are several differences.

• First, a new associate must be admitted to practice in the jurisdiction where the law firm is situated. The freelance lawyer doesn’t have to be admitted locally, and usually isn’t. This is because the freelance lawyer’s responsibility is to the hiring firm, not to the firm’s clients.

• Second, a new associate is an employee; the freelance lawyer is not. With the freelance lawyer, there is no obligation to withhold wages or pay Social

6

www.USLegalWriting.com 207-701-1393

Security or Medicaid. You don’t pay for health coverage, you don’t contribute to a retirement plan, you don’t provide any benefits at all. You pay the freelance lawyer a professional fee, not a salary.

• Third, you don’t provide the freelance lawyer with any resources--no support staff, no office furniture, no phone line, no computer, no online research subscription--nothing. The freelance attorney normally works at some distance from the hiring firm’s office (often a great distance), and supplies himself with everything necessary to provide the services he offers, including his own research resources. He does not (or shouldn’t) pass any of his operating expenses through to the hiring firm. He pays these expenses himself out of his fee.

• Finally, when you hire an associate, your obligation to pay a salary and provide for benefits and support resources continues indefinitely. So does your obligation to supply the associate with work to do (at least in the beginning). In stark contrast, when you hire a freelance lawyer, your obligation begins and ends with the project as you define it at the time of engagement. When the project is over, the relationship ends. Of course, if you are happy with a freelance lawyer’s services and choose to engage him more than once, you are free to do that; but these engagements are nothing more than a series of discreet contracts for independent services. They don’t create a continuing relationship.

Question 4: What services do freelance lawyers provide?

Answer: Generally, freelance attorneys are available to do the “in house” work that is so time consuming, and yet is so crucial to effective advocacy. Typical tasks include

• Legal research, • Legal memoranda, • Appellate and trial briefs, • Motions, • Discovery requests and responses.

The extent of the research can vary with the assignment. If you’re in the middle of trial and a legal issue arises on which you need help, you might engage a

7

www.USLegalWriting.com 207-701-1393

freelance lawyer to do a quick review and find the cases you need on short notice. Or, if there is more time, you might ask the freelance lawyer to do the comprehensive research necessary to support a dispositive motion. The extent of involvement in the written product can vary as well. If you’re a good writer and you have the time, you might choose to draft your arguments yourself, using the freelance lawyer primarily as a researcher. If you are short of time, and you believe the freelance lawyer is up to the task, you might ask for a finished appellate brief, ready for your final review and signature. If you happen to be dealing with a freelance lawyer who has substantial practical experience as a practicing attorney, you might also involve him in strategic and tactical planning in a given case. If the experience is there, you might as well use it.

Question 5: Do I have to tell my client that I’m using a freelance lawyer?

Answer: It depends on what you’re asking the freelance lawyer to do. If all you need is some legal research on an issue that you can clearly define without disclosing any personal information about your client (if all you’re doing is posing a hypothetical), then the answer is no. If, however, you disclose information about the client that would normally be covered under your state bar’s confidentiality rules, then the safe answer is yes. It makes sense to err on the side of caution here, and whether it creates a problem with your client will depend on who you hire. If you make sure to contract with an attorney who has the experience and expertise necessary to do the work required, and whose rates are reasonable, then disclosure should only strengthen your relationship with your client. It is a rare client who will object to the use of a freelance lawyer if they know that the lawyer is well qualified and that the cost will be less than if you did all the work yourself.

8

www.USLegalWriting.com 207-701-1393

Question 6: Can I make a profit on the freelance lawyer’s work? If the answer is yes, is that fair to my clients?

Answer: The answer to this question is probably yes, depending on where you practice. Most state bar associations that have issued an opinion on this question are consistent with the ABA’s 2008 Formal Opinion 08-451, which expressly allows it. One state that does not allow it, at least for now, is Texas. The Professional Ethics Committee for the State Bar of Texas issued Opinion No. 577 in March of 2007, and in that opinion the committee expressly barred a hiring firm or lawyer from adding any profit to a fee paid to a freelance lawyer. You can read that opinion here. http://www.solosmallfirm.com/files/Ethics_Opinion_577.pdf. It is worth noting that this opinion predates the ABA pronouncement on the issue; but given the reasoning of the opinion, it might not be any different if it was issued today. Regardless of where you practice, before you add any profit to a freelance lawyer’s fee you should satisfy yourself that your state has (1) issued an ethics opinion consistent with ABA Opinion 08-451, or (2) has no opinions on the books that are inconsistent with it. Is it fair to your clients? Absolutely. One very important aspect of the hiring lawyer/freelance lawyer relationship is that the hiring lawyer maintains responsibility to the client for the freelance lawyer’s work. There will necessarily be some degree of oversight and supervision. At the very least the hiring attorney always will read the product carefully, analyze the arguments presented, and make an independent judgment whether the work meets her standards. In making this independent judgment, and in accepting the risk that this judgment might be wrong, the hiring lawyer earns and justifies any reasonable profit made on the freelance lawyer’s work. There is another way to look at this that argues for adding profit. If the freelance lawyer is not a member of the bar in your state, then he or she is a nonlawyer professional—in essence an extremely highly qualified paralegal. Everyone understands that paralegals are not paid the $70 to $100 per hour that clients are routinely charged for their work. Paralegals don’t make that kind of money, even with retirement and benefits thrown in. The difference between the totality of a paralegal’s pay and the reasonable rate charged for his work is profit, and no one

9

www.USLegalWriting.com 207-701-1393

objects to it. The same analysis and set of expectations should apply to work performed by a freelance lawyer. Of course, you must bill the freelance lawyer’s work to your client as a professional service, and not as a business expense. If money you pay to the freelance lawyer shows up in the “expenses” section of your bill, no add-on or premium is permitted.

Question 7: What should I look for in a freelance attorney?

Answer: You want to know that your freelance lawyer is • Competent in research and writing, • Experienced, • Admitted to practice in at least one state, • Covered by a malpractice policy, and • Has access to first rate legal research resources.

Research And Writing Skills. You should be satisfied at the outset that your freelance lawyer has the professional skills to do the work you need. To determine this, start with the writing samples. Any freelance lawyer should have a website that prominently features samples of that lawyer’s written work. Review these samples carefully. Satisfy yourself that they meet the quality standard that you expect. Ask yourself these questions: Are the issues clearly stated? Are the arguments sound? Is the language lean and grammatically correct? Are facts stated objectively and argued fairly? Are cited authorities on point? These are threshold concerns. If the answer to any of these questions is no, then don’t contact that lawyer. If the samples don’t measure up, then chances are the work you can expect to receive won’t either. Experience. Of course, it’s a given that a freelance lawyer must have some history as a researcher and writer; but some practical experience representing private clients can be invaluable. Your freelance lawyer is probably going to be preparing written material that your clients will see and that you will have to present or defend in court. If your freelance lawyer has herself represented many clients over a period of years, she is more likely to prepare written work that your own client will understand and approve. Why? Because she will have an instinctive feel for client expectations and sensibilities. If your freelance lawyer has himself appeared in court countless times to argue his own motions and briefs, he is more likely to prepare work that your own judge will find persuasive.

10

www.USLegalWriting.com 207-701-1393

Why? Because he knows from his own experience what judges are looking for and how they think. If your freelance lawyer has this kind of practical experience, it can only improve the quality of the work you’ll receive. Bar Admission. Ask if the freelance lawyer is admitted to practice in any state. If so, is she a member in good standing of the state bar? Has her conduct ever been the subject of any disciplinary proceeding? Asking these questions isn’t prying; it’s just the exercise of ordinary due diligence. You have a right to know if the lawyer you are about to hire has mustered the discipline and commitment necessary to prepare for and pass a bar exam. If she has, she is more likely to assess accurately the task you define and assign the time and resources necessary to complete it properly and on time. As to professional conduct, if any protected client information is to be shared with the freelance lawyer, you want to know that the person you’re hiring will keep it safe. Errors And Omissions Coverage. Any lawyer you’re thinking of hiring on a freelance basis should have malpractice coverage. “Why?” you might be asking. “Isn’t it true that the hiring lawyer bears the risk of a claim made by the private client?” Yes, that’s true; but if your client sues you for a problem created by your freelance lawyer that you didn’t catch, you might want to look for a little help from your freelance. Even if you don’t, your carrier might. The fact that your freelance lawyer has taken the precaution of getting coverage also tells you something about that lawyer--you’re dealing with a careful person. Research Resources. Finally, of course, the freelance lawyer must have access to an online legal research plan (as a practical matter, either Lexis/Nexis or Westlaw). In the alternative, he should have regular access to a fully-stocked law library of the kind you would expect to find at an accredited law school or a state supreme court. The cost of access to these resources should be his business expense. He should not pass this cost through to the hiring attorney.

11

www.USLegalWriting.com 207-701-1393

Question 8: I get that it’s OK to hire a freelance lawyer, and I see how to go about it. But should I do it? What’s in it for me and my clients?

Answer: Unless you don’t have enough work to keep yourself busy, you (and your clients) can benefit if you hire a freelance lawyer. The reasons why come under three headings—time, money, and quality of services. You’ll Buy Yourself Some Time: If your deadlines are stacking up, you’re feeling the pressure. To some extent, this is a natural condition for the solo and small firm lawyer, but it doesn’t have to be overwhelming. If you don’t have enough time to meet all your deadlines and submit your very best work in each and every case, hiring a freelance lawyer can be the answer. If you bring in a freelance lawyer to handle all or part of a looming project, you can get control of your schedule. You’ll Make More Money: Any freelance lawyer you hire should bill at a rate below your own. Depending on where you practice, you’re probably entitled to add on a premium as your profit. This is entirely fair, as long as the amount you charge your client for the service is reasonable. Why? Because you are taking responsibility for the freelance lawyer’s work. You are exercising your own professional judgment when you use that work, and you are taking the professional risk that your judgment might be wrong. You are entitled to a reasonable profit. You’ll Improve the Quality of Client Services: If you have two projects looming and not enough time to deliver your best in both, chances are that in the end you won’t be happy with the final product in either. If you bring in a freelance lawyer on one of the projects, two good things will happen. First, you’ll have more time to spend on the project you keep for yourself and the final product will be better. Second, a highly trained professional (your freelance lawyer) will spend the time necessary to complete the other project according to your standards, and that product too will be improved.

12

www.USLegalWriting.com 207-701-1393

Final Question: Great, I’m convinced. What do I do now?

Answer: This answer is the easiest yet. Call me at 207-701-1393. We can talk about your project for free. If you don’t have time to talk, or if it’s getting late in the evening (hint--If you’re working past midnight, you definitely need my help), you can fill out the form on my website. Just go to www.USLegalWriting.com and you’ll find the form on every page. Tell me a little about your project, leave your name, number and email, and I’ll be in touch with you in very short order. You’re also welcome to email me directly at jim@USLegalWriting.com, or write to me at the address below. Regardless of how you contact me, I’ll review your project quickly (at no charge to you) and together we’ll determine if I can help. I look forward to hearing from you soon.

USLegalWriting.com jim@USLegalWriting.com

7 Narrows Lane, Cushing, ME 04563 207-701-1393