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.