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How to Work with Freelance Lawyers to Increase Profits, Decrease Stress and Get Your Life Back
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I am thrilled to share a post from a long time friend, Lisa Solomon who has been a pioneer in the freelance lawyer space since the mid 1990s. Lisa helped encourage adoption of freelance services by showing lawyers how they could save time and make more money through outsourcing. But most of all, Lisa gave lawyers the reassurance to turn work over by example – her work product has always been stellar and file-ready and she contributes ideas and plays on active role on every assignment. And with that, please enjoy Lisa’s wisdom on tips for working with contract attorneys.
What is a freelance
lawyer?
A
freelance lawyer is a lawyer who performs work, on an independent contractor
basis, for other lawyers. A freelance lawyer doesn’t enter into an
attorney-client relationship with your client.
What’s the
difference between a freelance lawyer and a contract lawyer?
In
many segments of the legal industry, the term “contract lawyer” refers to a
lawyer or non-admitted law graduate who works as an employee of a legal
employment agency or legal process outsourcing (LPO) provider. The agency or
LPO provider, in turn, contracts with law firms for the use of its employees to
perform work on a temporary basis. The agency or LPO provider bills the firm
for the contract lawyer’s time; it pays the contract lawyer a percentage of the
hourly fee collected from the firm. By contrast, freelance lawyers are business
owners who maintain their own offices, pay their own taxes, arrange for their
own insurance and benefits, set their own schedules and fees, establish their
own working conditions and pursue their own professional development.
Although
the term “freelance lawyer” is gaining traction, not everyone is
familiar with it. Therefore, some freelance lawyers continue to refer to
themselves as contract lawyers.
Why Outsource Work
to a Freelance Lawyer?
Small
firms and solo practitioners outsource work to freelance 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.
While
a large firm might simply pull an associate from one matter to work on another,
more pressing, case, small firms and solo practitioners usually don’t have that
luxury. This makes small firms and solos particularly vulnerable to periodic “workload
overload.” Outsourcing enables you to weather particularly busy periods without
having to hire an employee or face time pressures that lead to stress and
burnout.
Another
benefit of outsourcing work to freelance lawyers on an as-needed basis is cost.
Hiring an associate requires a significant investment in both time and money.
When you work with a freelance lawyer, you pay only for the time it takes to
complete the project, but when you hire an employee, you immediately add to
your fixed expenses. Searching for and training a new associate (particularly a
junior-level associate) is time-consuming. Your practice may be busy enough to
benefit from project-based outsourcing, but not busy enough to not support
another employee. Outsourcing is a wise use of your firm’s resources that can
increase profitability.
Hiring
an associate has other downsides that can be avoided by working with a
freelance lawyer. An employee adds to your administrative burdens, especially
if you’re a sole practitioner. Your malpractice rates will rise, and you’ll be
subject to all the financial and legal responsibilities that accompany employer
status. Working with an independent contractor is much less complicated, both
initially and on an ongoing basis.
In
fact, working with a freelance lawyer can help your firm’s bottom line. With one exception, all of the bar associations that have
addressed the issue (including, most notably, the ABA[1]) 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.[2]
Even
if you’re handling a case on a contingency basis and will be absorbing the freelance
lawyer’s fees yourself, it may still make sense to work with a freelance lawyer.
Hiring a freelance lawyer to work on a low-value case frees you up to devote
more time to higher-value cases; conversely, an experienced freelance lawyer
can offer critical assistance in a high-value case. A freelance lawyer can even
help you decide whether or not to accept a contingency case by examining issues
you’ve identified at the outset (such as whether a statute of limitations was
tolled based on the facts of the case) or by performing a jury verdict search.
Moreover,
many freelance lawyers focus on a particular aspect of practice, most commonly
legal research and writing. 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. You may
already outsource other tasks to independent professionals (such as private
investigators) in order to benefit from their expertise. Working with a
freelance lawyer enables you to use your valuable time in a way that’s most
efficient for you and your clients.
Finally,
working with freelance lawyers can boost your professional satisfaction. You
may enjoy trying cases and taking and defending depositions, but dislike
brief-writing. Or you might prefer client counseling and negotiating
settlements to drafting discovery demands. Outsourcing can free you to focus on
those tasks that you find most personally and professionally rewarding.
What Types of Tasks
Can Freelance Lawyers Perform?
A
freelance lawyer can do anything that a lawyer employed by a firm can do. This
includes, for example, legal research and writing (including drafting
pleadings, motions, jury instructions, appeals and discovery requests);
document review; taking and defending depositions; making court appearances;
assisting with trial preparation; and drafting all kinds of transactional
documents. A freelance lawyer can also help with your marketing efforts by
drafting or editing articles, books and CLE materials.
Legal
research and writing projects are particularly amenable to outsourcing to a
freelance lawyer, for two reasons. First, you can outsource as much (or as
little) of a project as you want. You may have already researched the issues
and drafted a brief, but need someone to edit your work. Or you may need help
with research, but want to write a brief or opinion letter yourself. Or you may
prefer to delegate primary responsibility for an entire large project—including
the preparation of a record on appeal, legal research and brief writing—to a
freelance lawyer (working under your ultimate supervision, of course). Look for
a freelance lawyer who will accommodate your preferred work style.
Second,
small firms and sole practitioners in particular can benefit from the fresh
perspective and critical eye that a freelance lawyer can bring to a case. For
example, sometimes it’s difficult to dispassionately evaluate legal issues in a
case to which you’ve already committed significant resources. Although chatting
informally with a colleague about your case may help point you in the right
direction, a freelance lawyer who’s familiar with all of the relevant facts and
has read the applicable cases and statutes will be able to analyze the issues
more closely.
How to Find a Freelance
Lawyer
The
process of finding the right freelance lawyer is no different from finding the
right carpenter to build a backyard deck or IT professional to oversee your
office’s computer network: the best place to start is with personal
recommendations. Since outsourcing legal work to freelance lawyers has become more
common over the past few years, it’s likely that a colleague can recommend
someone.
If
the referral avenue leads to a dead end, you have a number of options. You may
find ads in your local or state bar newsletter, or on its website, from
freelance lawyers, or may post an ad there. And, because most freelance lawyers
(like most lawyers in more traditional practice areas) have websites, searching
the web should be fruitful.
When
you’re looking for a freelance lawyer, keep in mind that because a freelance
lawyer: (1) isn’t counsel of record; and (2) is considered to be working under
your supervision (more on that below), for most projects, the freelance lawyer
need not be admitted in the jurisdiction where the matter is venued. Thus, a
freelance lawyer who isn’t admitted in your jurisdiction can work on “inside”
projects such as legal research and writing; drafting and responding to
discovery; and drafting transactional documents. A freelance lawyer who’s not
admitted in your jurisdiction can also meet with clients and witnesses, as long
as the freelance lawyer’s non-admitted status is disclosed. A freelance lawyer
must be admitted in your jurisdiction in order to take depositions or appear
alone in court, but need not be admitted in your jurisdiction to second chair a
trial because, under those circumstances, you’ll be present to supervise the
freelance lawyer.
General Tips for Working
with Freelance Lawyers
As
with any other type of business relationship, it’s wise to have a written contract
with your freelance lawyer. You may enter into a broad agreement designed to
set the ground rules for work on an unlimited number of current and future
matters, or one that applies only to a single matter. If you enter into a broad
agreement, make sure that you specify the scope of each particular project in
writing at the project’s outset.
If
you’re working with a freelance lawyer who is billing on an hourly basis, you
may want to receive regular progress reports (for example, you may ask that the
freelance lawyer discuss the project’s status with you at the 10-hour mark).
You can also cap the time allotted to the project. Although such an approach
will make the freelance lawyer’s total fees more predictable, the project may
not be completed within the allotted time. To ameliorate this risk, you may
wish to negotiate a flat fee for the entire project.
A
freelance lawyer who concentrates on legal research and writing should have a
legal research subscription plan that includes all of the materials that you’d
want access to if you were doing the research yourself. Except in extraordinary
circumstances or as otherwise agreed in advance, a freelance lawyer shouldn’t
bill you for the cost of accessing any databases or materials that are relevant
to the legal issues involved. Before hiring a freelance lawyer who relies
exclusively on one of the growing number of free legal research services, make
sure that you understand the service’s limitations (for example, free legal
research services generally don’t include annotated statutes), since those
limitations can impact both the quality of the work product and the freelance
lawyer’s efficiency.
While
you certainly can ask a freelance lawyer to perform work at your office, most
firms that hire freelance lawyers leverage technology—from e-mail to
stand-alone file sharing tools to practice management platforms—to enable the
freelance lawyers to work remotely.
Finally,
most malpractice policies automatically cover freelance lawyers for the work
they do on the insured firm’s behalf. While a freelance lawyer you work with
may carry his or her own malpractice policy, if the freelance lawyer qualifies
as an insured under your policy, the insured v. insured exclusion contained in
most malpractice policies will bar you from seeking indemnity or contribution
from the freelance lawyer.[3]
The freelance lawyer’s policy serves more to protect the freelance lawyer in
case of an excess judgment not covered by your policy, or if you don’t carry
your own malpractice coverage.
Tips for
outsourcing legal research and writing projects
Clearly
defining the research issues is a critical part of establishing the scope of
any outsourced legal research and writing project. It’s also important,
however, to be open the freelance lawyer’s input, since initial research may
sometimes enable the freelance lawyer to identify other issues that impact your
case. A freelance lawyer should bring these issues to your attention and obtain
express authorization to go beyond the initial project scope before proceeding.
The
give-and-take extends to the writing process.
It’s wise to discuss major substantive changes to a document the freelance
lawyer has drafted, since drafting decisions are premised on the freelance
lawyer’s analysis of the issues. Any divergence between your analysis and/or
conclusions and the freelance lawyer’s may indicate a weakness in the case that
merits further exploration.
Ethics Issues in
the Outsourcing Relationship
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. Thus, 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.
Another
question is whether you must disclose, and obtain client consent to, hiring a
freelance lawyer to work on a client’s case. 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.
Thus, 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.
As
mentioned above, all ethics opinions but one that have addressed the issue
agree that a lawyer may make a profit on work performed by a freelance lawyer. Note
that, 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) were
working on a client’s matter, you wouldn’t be obliged to reveal the associate’s
salary to your client.
Freelance
lawyers are bound by the same ethics rules that govern all lawyers, including
the duty of confidentiality. Nevertheless, including a provision in your
agreement with the freelance lawyer that explicitly obligates the freelance
lawyer to maintain the confidentiality of all client information the freelance
lawyer learns during the engagement will give you a contractual remedy in the
highly unlikely event of a breach of that ethical duty.
Although
it’s theoretically possible to work with a freelance lawyer on certain kinds of
projects without revealing the parties’ identities, it’s much more efficient
for solos and small firm lawyers to be able to freely share all information
when working on an outsourced project than to have to redact documents.
Assuming that you’ll be sharing all relevant information about each case with
the freelance lawyer, you and the freelance lawyer should treat conflicts
issues as if the freelance lawyer were an employee of your firm.
Finally,
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 disclosure of information as necessary for them to serve
your needs.
Conclusion
Working
with a freelance lawyer allows you to gain many of the financial and work/life
balance benefits of adding an associate to your practice, without the overhead
and administrative burdens of bringing on an employee. If you follow the tips in
this post, the relationship among you, your clients and a freelance lawyer can
be a win-win situation for all involved.
Lisa Solomon was one of the first lawyers to recognize and take advantage of the technological advances that make outsourcing substantive legal work practical and profitable for law firms of all sizes. She has practiced exclusively as a freelance lawyer, providing legal research and writing services to solos and small firms nationwide, since 1996. Her innovative law practice has been featured in periodicals such as the National Law Journal and the ABA Journal, and in a number of books about legal careers. She’s also a nationally-known author and speaker about freelance lawyering and persuasive legal writing. Her website is at http://QuestionOfLaw.net, or you can reach her directly at 914-595-6575.
[1]See ABA Formal
Op. 08-451 (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Suppport
Services); ABA Formal Op. 00-420 (Surcharge to Client for Use of a Contract
Lawyer); ABA Formal Op. 88-356 (Temporary Lawyers).
[2] The exception is the Professional Ethics Committee for the
State Bar of Texas. However, the reasoning of the Professional Ethics Committee
for the State Bar of Texas in Opinion 577 (March 2007) is questionable. See Corey L. Marrs, Being a Contract Lawyer and How the Bar Does not Want You to Hire Me,
News for the Bar (Litigation Section of the State Bar of Texas, Fall 2007).
[3] Because insurance coverage is a
matter of contract, you should read your policy and consult with your broker.
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