The Friday Five
Try Outsourcing When You Can’t Clone Yourself
How do you staff up during busy season and avoid ethics issues?
Of the more than 1.3 million lawyers in the U.S., approximately half are solos, according to the American Bar Association.
Staffing and managing workflows are challenges that solo attorneys need to constantly juggle. How do you appropriately staff up during busy seasons or big cases? Do you hire a temp through an agency? Outsource to a contract lawyer, team up with another firm, hire a full-time employee … explore artificial intelligence?
Recently I faced such a predicament while driving over a mountain range with a looming motion for summary judgment due by midnight. So I opted to hire a freelance lawyer for help. I logged into my account with Lawclerk, posted a project and quickly hired a freelancer. (Full disclosure: I am a co-founder of the company, with two other attorneys.) When I arrived home, the research memo was in my inbox so I could review it, incorporate it into my motion and get it filed before midnight.
Instantly, I joined the 57 percent of law firms using contract lawyers (based on the 2017 Altman Weil “Law Firms in Transition” survey). The popularity of using alternative legal service providers is growing, with companies like Lawclerk, Axiom, Book-It Legal, LawGeex and Priori Legal offering services like court coverage, legal writing, research, document review and just about everything in between.
Top Five Ethics Rules of Engagement When Outsourcing
If you’re like most lawyers, you may be thinking “What about the ethics issues?” Here are a few considerations when evaluating your options:
- Maintain control. Anytime you outsource to freelance lawyers or other paraprofessionals, make sure you are in control of the working relationship to avoid pitfalls with the unauthorized practice of law. Are you hiring a freelancer to cover a court hearing or deposition for you? If so, they need to be an attorney in good standing in that jurisdiction. Are you hiring a freelancer to draft an appellate brief? If so, the freelancer may not need to be barred in your jurisdiction as long you are supervising her and are the one providing legal advice to your client.
- Rules differ by state. Every state other than California has adopted the Model Rules, although some states have modified the Model Rules in their adoption or have not adopted the most recent amendments. Model Rule 5.3, “Responsibilities Regarding Nonlawyer Assistance,” and Model Rule 5.5, “Unauthorized Practice of Law; Multijurisdictional Practice of Law,” are directly on point and, importantly, authorize the use of freelance lawyers or other paraprofessionals. Look at how these rules have been adopted by your state to make sure you stay compliant.
- Bill for the work. Many lawyers think that by hiring a freelancer they miss out on the opportunity to bill for the work. Not so, my friends. For nearly 30 years, the U.S. Supreme Court has consistently recognized that paralegals, law clerks, and other paraprofessionals’ services may be billed at “prevailing market rates” rather than the rate actually paid to the paraprofessional. (See Richlin v. Chertoff and Missouri v. Jenkins.)
- Reasonable billing. The Model Rules and related ethics opinions regarding how contract lawyers’ fees may be billed are consistent with the U.S. Supreme Court’s holdings. Model Rule 1.5, titled “Fees,” provides that a “lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” In Formal Opinion 00-420, the ABA Standing Committee on Ethics and Professional Responsibility directly addressed the question of whether contract lawyers’ services must be billed to the client at the rate paid to the contract lawyer or at prevailing market rates. The answer — attorneys may bill the services of contract lawyers to their clients at prevailing market rates as long as the rates satisfy Model Rule 1.5(a)’s reasonableness requirement.
- Properly disclose. Some state and local rules have specifics about how and when you are required to disclose the use of freelance lawyers. Some rules also specify how a freelancer’s time should appear on a bill to a client. If you anticipate outsourcing in the future, it would be a good practice to begin incorporating language regarding the use of freelance lawyers into your engagement agreement now to make sure clients are informed.
In my scenario, I got home safely, and thanks to the freelancer, turned a profit and filed my motion without staying up all night. I call this a big win.
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