Lean Law Firm: How to Use Freelance Attorneys to Grow Your Practice

Leila Kanani – Intermix Legal Group

February 21, 2015

Why Outsource Work? �  You may not be ready to hire a full time attorney

with the ebbs and flow of work, but you don’t want to turn work away

�  Outsourcing work is a great tool to keep your firm lean and stay competitive

Benefits of Outsourcing Work

�  Have access to a pool of experienced attorneys

�  Save on overhead �  taxes, office, other employee costs

�  Add to your bottom line �  Most jurisdictions you are able to add a surcharge to

the rates charged

Benefits of Outsourcing Work

�  Low hourly rates

�  Substantive work product �  Usually very little revision needed

�  Available as-needed �  Work will ebb and flow

�  Freelance attorneys are available on-demand to help you only when you need it

When to Outsource Work? �  Have too much on your plate

�  Trial coming up

�  Spend more time on BD

�  Need a specific expertise for a case

�  Overflow work

�  Have too much work but not enough to hire full time

�  Anytime you feel like you are about to turn work away, outsource, don’t turn away the work!

Who Are Freelance Attorneys

�  Hired by other attorneys to handle legal work on a temporary contract project basis

�  In the business of helping other attorneys

�  Focus on a niche practice area and offer their expertise to other attorneys needing help with a large case, transaction, appeal, or some other unique project 

Who are freelance attorneys �  Relationship between the hiring attorney and the

freelance attorney premised on flexibility

�  Hiring attorney uses the services of the freelance attorney only when needed to handle additional projects without hiring another full time employee

�  Freelance attorney provides the necessary support and quality end product

�  Flexibility in scheduling and working hours

Who Are Freelance Attorneys

�  Provides work product that the hiring attorney uses as part of his or her representation of the direct client

�  Ghost writing

�  Hiring attorneys, not freelance attorneys, are ultimately responsible for the client’s representation and related ethical obligations

Difference With Contract Attorney

�  Contract attorney is usually referred to an attorney employed by an agency to review documents for a low hourly wage 

�  In contrast, a freelance attorney is a skilled and experienced attorney who can independently research legal issues, draft briefs, manage discovery, or even consult on litigation strategy

Who Becomes a Freelance Attorney

�  Usually with at least 4 years of practicing law

�  Established within the profession

�  Want flexibility not available in most traditional career tracks in the legal profession

�  The need for a more flexible schedule can arise from a variety of personal and professional situations �  Attorney moms

�  Hobbies

Who Are Freelance Attorneys

�  Seek out freelance work as a way to continue practicing law on their own schedules

�  The advances in technology during the past few years are driving force fueling the growth in freelance work: attorneys can work remotely on projects, anywhere and anytime

�  Taken advantage of new technology and used it to maximize their professional freedom

Types of Work Freelance Attorneys Handle

� Litigation

� Transactional

Litigation �  At every stage of the litigation process

�  Assessing the viability of claims, to writing motions, to taking on appeals

�  Help before you ever take on a file �  Can help you dig into some facts or do a bit of legal

research so you can tell whether a claim or defense is viable

�  Help with pleadings by drafting a complaint or answer for you

Litigation �  Discovery

�  Discovery work lends itself easily to being divided and managed into small projects for a freelance attorney

�  Review existing documents, and help you develop or respond to discovery requests

�  Reviewing the basic pleadings will provide enough of a foundation to understand the parameters for discovery

Litigation �  Depositions

�  Deposition preparation

�  Take depositions

�  Deposition summaries

�  Outline and exhibits for upcoming depositions

Litigation �  Motion practice

�  can include doing some or all of the legal research needed, marshalling factual support, and drafting the motions themselves, depending on your needs.

�  Prepare motions in limine as well as jury instructions

�  For court trials, can prepare trial briefs, proposed findings of fact and conclusions of law, and proposed orders, along with post-trial motion

Appeals �  Appeals:

�  Research and drafting needed for strong appellate briefs

�  Offer a fresh look at facts and the law

�  Take over an appeal entirely, as some freelancers specialize in appeals

Transactional �  Commercial drafting

�  Due diligence

�  Business formation

�  Corporate Governance

�  Technology licensing

Transactional �  Estate Planning

�  estate documents to final accounting

�  ILITs, GRATs, or QTIPs �  will, trust, preparing a fiduciary income tax return

�  IP �  Patent prosecution

�  Trademark prosecution �  Copyright

Malpractice Insurance �  Regardless of whether a freelance attorney carries

malpractice insurance, law firms are ultimately responsible for the work product and must review a freelance attorney’s work product before submitting it to the client or to a court

�  Some freelance attorneys carry insurance

�  Insurance policies allow a law firm to add a freelance attorney to its policy without additional premiums

�  Most insurance policies state that anyone doing work for the firm is automatically covered

Overview of a Few Ethics Rules

�  Always check your jurisdiction for state-specific rules

Disclosure to Client �  Is disclosure to the client required when working

with a freelance attorney?

�  In ABA Opinion No. 88-356 (1988) the American Bar Association concluded that the client must be advised that a temporary lawyer will work on the client's matter and the consent of the client must be obtained, if the temporary lawyer is working without the close supervision of a lawyer associated with the law firm.

Disclosure to client �  However, if the temporary lawyer is working under

the direct supervision of a lawyer associated with the firm then there would not have to be any disclosure to the client

Disclosure to Client �  The ABA Opinion further stated that if a law firm

"simply pays the temporary lawyer reasonable compensation for the services performed for the firm and does not charge the payment thereafter to the client as a disbursement, the firm has no obligation to reveal to the client the compensation arrangement with the temporary lawyer."

�  However, always a good idea to fully inform client

Conflicts of Interest �  Prohibits attorney from accepting or

continuing to represent client if there is a conflict or potential conflict

Conflicts of Interest � Firm and temporary attorney should

routinely monitor conflicts

� Freelance attorneys maintain accurate records of their actual conflicts so they can properly clear conflicts for every matter

Confidentiality of Information

�  Supervising lawyers have obligation to make reasonable efforts to ensure that temporary lawyer conforms to the rules of professional conduct

�  Including those governing the confidentiality of information relating to representation of a client

�  When a law firm uses a freelance attorney, disclosure of confidential information may be necessary

Confidentiality of Information

�  Freelance attorney bears the burden of non- disclosure regarding secrets learned in the course of representation

�  The law firm has the obligation to screen the freelance attorney from client secrets unnecessary to a particular project

Fees �  In most jurisdictions, hiring firm/attorney

can add a surcharge to freelance attorney’s rates for work done and then bill the client as legal services

Fees �  ABA 00-420 When costs associated with legal

services of a contract lawyer are billed to the client as fees for legal services, the amount that may be charged for such services is governed by the requirement of ABA Model Rule 1.5 that a lawyer’s fee shall be reasonable

Fees �  ABA 00-420 A surcharge to the costs may

be added by the billing lawyer if the total charge represents a reasonable fee for services provided to the client

Fees �  ABA 00-420 When legal services of a

contract lawyer are billed to the client as an expense or cost, in the absence of any understanding to the contrary with the client, the client may be charged only the cost directly associated with the services, including expenses incurred by the billing lawyer to obtain and provide the benefit of the contract lawyer's services

Fees �  ABA 00-420 No duty to disclose the surcharge

when the work of the contract lawyer is supervised or, absent supervision, when the work of the contract lawyer is adopted as the work of the retaining lawyer

Giving Projects to FA �  Decide what you need help with

�  Locate FA with relevant experience

�  Delegate Work

�  Keep track of time

�  Bill your client

�  All while you are saving money and adding to your bottom line

Questions? � Leila Kanani � leila@intermixlegal.com � 312.612.9180 � www.intermixlegal.com � Twitter.com/Intermixlegal