Small firms and solo practitioners outsource legal research and brief writing to freelance (aka contract) lawyers for a variety of reasons. One primary reason is time: Unfortunately, lawyers aren’t always in control of their own schedules. Deadlines — whether set by statute, court rule or judicial fiat — are ever-present. Frequently, it seems that everything must be done at once. Outsourcing enables you to weather particularly busy periods without having to hire an employee or face time pressures that lead to stress and burnout.
Here are five useful things to know about outsourcing legal research and brief writing.
1. Outsourcing legal research and writing can help your firm’s bottom line. With one exception,* all of the bar associations that have addressed the issue (including, most notably, the American Bar Association) have determined that a lawyer may add a surcharge to a freelance lawyer’s fees—in other words, make a profit on work performed by a freelance lawyer — as long as the total charges to the client are reasonable. See:
- ABA Formal Opinion 08-451 (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services)
- ABA Formal Opinion 00-420 (Surcharge to Client for Use of a Contract Lawyer)
- ABA Formal Opinion 88-356 (Temporary Lawyers)
* The exception is the Professional Ethics Committee for the State Bar of Texas. However, the committee’s reasoning in Opinion 577 (March 2007) is questionable.
2. If you are making a profit on work performed by a freelance lawyer, to comply with ethics requirements, you must bill the freelance lawyer’s services as a fee (i.e., in the same manner as you would bill for your own time), rather than as a disbursement (i.e., in the section of the bill detailing expenses incurred for such items as court reporters). As long as payment of the freelance lawyer’s fee isn’t contingent on the outcome of the litigation, you’re not required to disclose how much you’re paying the freelance lawyer; in other words, you don’t have to reveal the amount of your profit. This position makes sense: After all, if an associate (i.e., your employee) was working on a client’s matter, you wouldn’t be obliged to reveal the associate’s salary to your client.
3. The defining characteristic of the relationship between a hiring firm and a freelance attorney is the hiring firm’s continued responsibility for rendering competent legal services to the client. The hiring firm must ensure that it delegates work to freelance lawyers who are competent to perform the work and oversee the performance of the work adequately and appropriately. As with an attorney employed by your firm, the degree of supervision required depends on the freelance lawyer’s skills and experience. If you prefer not to maintain supervisory responsibility, you may want to consider a referral or co-counsel relationship instead of an outsourcing relationship.
4. A freelance lawyer who is performing legal research or writing services need not be admitted in your state. This is because the freelance lawyer is not a counsel of record, and is considered to be working under the hiring attorney’s supervision.
5. You should obtain your client’s informed consent before hiring a freelance lawyer. Comment 6 to ABA Model Rule 1.1 (Competence) instructs that a hiring attorney should ordinarily obtain the client’s informed consent before hiring a freelance lawyer. Many state and local bar associations have issued ethics opinions requiring disclosure under some circumstances, and others mandate disclosure under all circumstances. The safest route (particularly if you practice in a state that hasn’t yet issued a governing ethics opinion) is to disclose, and obtain the client’s consent to, your use of a freelance lawyer. If you’ll be billing an experienced freelance lawyer’s services to your client at a rate lower than your own, this process can actually be an opportunity to demonstrate your commitment to achieving the best possible result for the client at the lowest cost.
You may want to add the following paragraph to your retainer agreement:
You are hiring the firm for representation and not any particular individual. The firm may assemble the team of professionals best suited to serve your needs at each stage of your matter. The firm may share with these professionals information about your case as necessary for them to carry out their responsibilities. All non-firm personnel are subject to the firm’s ongoing supervision and applicable ethics regulations. You expressly consent to the firm’s use of these professionals and to the disclosure of information as necessary for them to serve your needs.
The Bonus: Hiring Freelance Help Can Lead to Happy Clients
A freelance lawyer who concentrates in legal research and writing can often complete those tasks in less time than a busy practitioner, who may not be as familiar with the available resources or as experienced in searching large databases for sometimes elusive answers. So, outsourcing legal research and writing means you can use your valuable time in a way that’s most cost-efficient for your clients.