Ethics in Innovative Practice

Freelanace Lawyer Relationship Generally

seth@offsiteassociates.com — Tue, 24 Feb 2009 05:00:00 GMT

The Ethics Committees refer to temporary attorneys, contract attorneys, or independent contractors, we take “freelance lawyer” as included in those categories. The Ethics Committees vary on the details, but seem to concur that attorneys and firms may use unassociated attorneys to serve clients.

Update. ABA Opinion 08-451 affirmed the use of outsourced legal services is not inherently unethical.

Billing Freelance Lawyer Legal Services to Clients

seth@offsiteassociates.com — Tue, 24 Feb 2009 05:00:00 GMT

An important distinction in billing a contract lawyer's work seems whether the contract attorney's fee is billed as an "expense" or a "legal service." Typically an attorney must pass “expenses” through to the client largely unchanged. On the other hand, a retaining attorney may add a profit to a fee paid to contract attorney for "legal services" rendered. Our reading of the opinions clearly suggests actually billing as one or the other is optional and not compelled by rules other than those that normally apply to all lawyers., e.g. total reasonable fee. The surcharge issue appears different in Maryland and Connecticut. ABA notes disagreements in footnotes of opinion 00-420.

Update. see p 5 ABA Opinion 08-451. This analysis appears to affirm ABA-420 and treat contract legal services, billed as such, much like a intra-firm billing.

Disclosing Freelance or Contract Attorney Involvement in Your Case

seth@offsiteassociates.com — Tue, 24 Feb 2009 05:00:00 GMT

The Ethics Committees seem to agree that as a contract attorney’s involvement increases, the retaining attorney's duty to disclose that involvement to the client also increases. However, the committees seem to disagree as to whether disclosure is appropriate in all cases or when the contact attorney learns privileged information. For example, the NY City Bar appears to adopt a position in favor of disclosure in all cases, while NYSBA and ABA take a more nuanced approach.

Most recent: see p 4 ABA Opinion 08-451 p. 4. Whether a retaining attorney has direct supervision over outsourced lawyer is an important issue related to disclosure.

ABA Opinion 08-451 discusses other matters related to the nature of the outsource operation and the skills of the contract lawyer. OSA was built to with those considerations at the forefront and addresses each by making a relationship formed through it as close to one formed between two lawyers present in the same off