Law Technology Today From the ABA Legal Technology Resource Center
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Have you been considering hiring a freelance lawyer to help with overflow work? If so, you’re not alone. The use of freelance lawyers is becoming more and more mainstream, particularly amidst the rise of the gig economy. While the concept of a contract lawyer is certainly not new, the way in which attorneys are finding contract lawyers is evolving. Most attorneys have one or two contract lawyers they call when their workload is overflowing. But, what happens when those couple of freelancers aren’t qualified to do the work or don’t have time? Fortunately, there are an array of alternative legal services that help busy attorneys find freelance lawyers. Before choosing a partner, there are several important considerations to evaluate, including: expertise, cost, ethical compliance, client consent and time.
Finding the Best Fit
Depending on the kind of support you need, there are a number of available resources. Once you’ve selected a resource and found a few candidates, it’s time to review their resumes, writing samples and references to evaluate their credentials. These data points should quickly provide the information you need to hire the most qualified freelancer for the job at hand.
Navigating Flat Fee, Hourly and Client Billing
Traditionally a contract lawyer—like most lawyers—is paid hourly. However, many sophisticated attorneys are moving towards flat fee arrangements with freelance lawyers. The benefit to negotiating flat fee engagements is that it gives the hiring attorney complete control over how much they are spending to get the work done.
The work a freelance lawyer completes may be billed back to the client at a reasonable market rate, per Model Rule 1.5 and related ethics opinions. Avoid the first-timer’s mistake of viewing the freelancer’s work as a cost—it’s actually a recoupable service. For example, if a freelancer reports they worked 5.5 hours to draft an agreement, and the market rate for their level of experience and expertise is $300 per hour, then you could bill your client $1,650 for the work even if you paid the freelancer a flat fee of $500.
Editor’s note: The ABA Center for Professional Responsibility notes that the manner by which lawyers bill and charge for the work of contract lawyers is regulated on a state-by-state basis. Lawyers should consult their local rules of professional conduct and ethics opinions on such matters. ABA Formal Ethics Opinions 00-420 and 08-451 provide general guidance on this issue.
Don’t Forget about Ethics Rules
There are two main ethics rules to be mindful of which prevent the unauthorized practice of law and oversight. Model Rule 5.3 “Responsibilities Regarding Nonlawyer,” 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. Take a look at how these rules have been adopted by your state to make sure you stay compliant.
Exactly how these rules may or may not apply to a particular engagement of a freelance lawyer will depend on the scope of work being performed. Will the freelancer be required to make court appearances on your behalf? If so, that requires them to actually engage in the practice of law and be licensed in your jurisdiction. If you just need a freelancer to Shepardize cases for a complicated appellate brief, then you can limit their role to that of a paraprofessional and hire a freelancer from anywhere (except in Indiana).
To Tell or Not to Tell Clients?
If you anticipate using freelance lawyers more frequently, it would be wise to incorporate language in all engagement agreements informing clients accordingly. What disclosure is required in an engagement agreement? The rules differ a bit by jurisdiction so of course double check local rules.
Here’s an easy test to determine client consent is required to use a freelancer. Is the freelancer working for you or working for the client? If the freelancer is working for you, then limit their role to that of a paraprofessional and the disclosure requirements are not as strict. If the freelancer is engaging in the practice of law and working directly for the client, then informed consent from the client must be obtained.
Avoid Rush Jobs and Communication Breakdowns
Anytime work is being delegated to freelance lawyers there are a few best practices to follow that ensure a successful working relationship. First, avoid rush jobs. If you’re up against a tight deadline, this may not be an ideal time to test out a freelance lawyer. Give yourself—and the freelancer—plenty of time to produce the best possible work product.
Next, take the time to give very clear instructions and set expectations. Taking a few extra minutes at the onset of the work to make sure both sides are clear about the scope of work can save hours of headaches in the days or weeks ahead. In my experience, I haven’t found a freelancer who can read minds. If a brief should be ten pages long, say so. If a research memo needs to cover both state and federal case law, then specify accordingly.
Outsourcing to freelance lawyers can be a game-changer for solo and small firm attorneys looking to build a lean and mean business model. These tips can go a long way towards making sure your first encounter is a positive—and profitable—experience.
