Free Report: Why Outsourcing Works

jim@USLegalWriting.com

Is Outsourcing to a Freelance
Attorney an Option? What’s In It for
YOU?

Crucial Questions & Answers

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If you’re reading this report, you’re probably already thinking
that some temporary, specialized legal help for your practice
would be a good thing. Maybe you’ve had some of these
thoughts (maybe all of them):

“I have two hearings this week and a trial
brief due in a third case on Friday. There’s
no way I can do it all, even if I give up
eating and sleeping. “

“I need to work on the brief in the Smith
case, but I really don’t want to. I’d much
rather get ready for trial in the Jones case.
It would be really fantastic if I could get
somebody good to do this brief.”

“My client base is growing, I’m getting
more and more work, and I really need
some help; but I don’t want the cost and
responsibility of bringing in an associate.”

If these concerns are familiar to you, you’re not alone. There are few solo or
small firm lawyers who don’t face these issues on a regular basis. In my early
years as a solo, I dealt with them constantly. Unfortunately for me, in those days
(the mid ‘80s) freelance lawyers were not available. If they existed at all back
then, they kept themselves well hidden and I didn’t hear about them. As my solo
practice took off, I found that I had only a couple of choices, neither of them
pleasant:

www.USLegalWriting.com 207-701-1393

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I could just keep grinding out the hours (often 50 or 60, sometimes
70+ hours per week), and let all those extra hours
• take me away from my family life,
• obliterate my leisure time, and, over the long haul
• wear me down physically and mentally.
Or,

I could bite the bullet, bring in another lawyer, and accept the
inevitable expense, uncertainty and additional responsibility
associated with hiring a new, full-time professional.

Today, there’s a third choice. Today a solo or small firm attorney can
• Respond to a growing client base or a spurt in client activity,
• Provide more services,
• Focus on more satisfying work,
• Make more money,
and do it all without the necessity of hiring an associate or bringing in more
partners.

The solution: Find yourself a freelance lawyer.
OK, so you’re thinking about it. Sure, it sounds good, and it would be nice to get
some relief from the pressures of your practice. But should you do it? Should you
actually hire a freelance attorney? Probably. But if you’re a good lawyer, you like
to think things through before you take a major step, especially when it comes to
providing services to your clients. Here are some FAQs and answers that should
help you decide whether hiring a freelance lawyer is right for your practice.

Question 1: First things first--Is this really an option?
Answer: This question is really several questions: Is it legal? Is it ethical? Is it
OK with the American Bar Association? Do the Model Rules of Professional
Conduct allow it? The answer to all of the above is Yes.


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On August 5, 2008, the ABA’s Standing Committee on Ethics and Professional
Responsibility released Formal Opinion 08-451, entitled “Lawyer’s Obligations
When Outsourcing Legal and Nonlegal Support Services.” You can read it here:
http://www.aapipara.org/File/Main%20Page/ABA%20Outsourcing%20Opinion.pdf
Among other things, this opinion recognizes three facts about outsourcing:

• Law firms often hire lawyers as independent contractors to provide a wide
variety of legal services. These include legal research, drafting of legal
documents, and development of legal strategies in ongoing litigation. This
is a growing trend.

• Because the costs of legal services vary greatly from region to region,
outsourcing can reduce what a hiring firm must pay for legal services, and
in turn, what that firm must charge its clients.

• Outsourcing allows a lawyer to provide labor-intensive services on a case-
by-case basis without the necessity and expense of maintaining the extra
staff the rest of the time. This enables solo and small firm attorneys to be
more competitive in the law services marketplace.

The Standing Committee said that “There is nothing unethical about a lawyer
outsourcing legal and nonlegal services, provided the outsourcing lawyer renders
legal services to the client with the ‘legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation,’ as required by Rule
1.1.”

And what if the freelance attorney is not admitted to practice where the hiring
lawyer or firm is located? Is this a problem? The short answer is no, as long as
the freelancer will not be appearing in court, signing pleadings, or rendering
advice directly to the client (is limited to “in house” services). It is obvious that
the ABA’s Ethics and Professional Responsibility committee put a lot of thought
into Formal Opinion 08-451. It is equally obvious from a reading of the entire
opinion that the committee understood very well that often freelance lawyers live
and practice in jurisdictions far removed from the hiring attorney’s home base.
This clearly is OK, as long as the hiring lawyer exercises supervision over the
freelance lawyer and maintains direct responsibility to the client. Specifically, the
committee said that


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“Ordinarily, an individual who is not admitted to practice law in a particular
jurisdiction may work for a lawyer who is so admitted, provided that the
[hiring] lawyer remains responsible for the work being performed and that
the [freelance lawyer] is not held out as being a duly admitted lawyer [in
the hiring lawyer’s state].”

Formal Opinion 08-451. So there you have it. Outsourcing to a freelance attorney
is an accepted practice; and as long as the freelancer limited to “in house”
activities and services, it doesn’t matter where they are. Not only is it ethically
and professionally just fine; it’s a very good way to improve client services and
reduce costs at the same time.

Question 2: What exactly is a freelance lawyer anyway?
Answer: Generally, the term “freelance lawyer” (or “freelance attorney”)
means an attorney (a person who has a JD) who provides specialized services
directly to practicing lawyers or law firms and not to the general public. This
broad definition generally does not include lawyers who provide their services
through employment agencies. These folks are usually called “contract”
attorneys, to distinguish them from those of us who work alone, and deal directly
with hiring attorneys or firms without using an agent or other intermediary. In
this report, the term “freelance attorney” refers to the independent contractor,
not to the lawyer who works through an agency.

Question 3: What’s the difference between hiring a freelance
lawyer and a new associate?
Answer: There are several differences.
• First, a new associate must be admitted to practice in the jurisdiction where
the law firm is situated. The freelance lawyer doesn’t have to be admitted
locally, and usually isn’t. This is because the freelance lawyer’s
responsibility is to the hiring firm, not to the firm’s clients.

• Second, a new associate is an employee; the freelance lawyer is not. With
the freelance lawyer, there is no obligation to withhold wages or pay Social


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Security or Medicaid. You don’t pay for health coverage, you don’t
contribute to a retirement plan, you don’t provide any benefits at all. You
pay the freelance lawyer a professional fee, not a salary.

• Third, you don’t provide the freelance lawyer with any resources--no
support staff, no office furniture, no phone line, no computer, no online
research subscription--nothing. The freelance attorney normally works at
some distance from the hiring firm’s office (often a great distance), and
supplies himself with everything necessary to provide the services he
offers, including his own research resources. He does not (or shouldn’t)
pass any of his operating expenses through to the hiring firm. He pays
these expenses himself out of his fee.

• Finally, when you hire an associate, your obligation to pay a salary and
provide for benefits and support resources continues indefinitely. So does
your obligation to supply the associate with work to do (at least in the
beginning). In stark contrast, when you hire a freelance lawyer, your
obligation begins and ends with the project as you define it at the time of
engagement. When the project is over, the relationship ends. Of course, if
you are happy with a freelance lawyer’s services and choose to engage him
more than once, you are free to do that; but these engagements are
nothing more than a series of discreet contracts for independent services.
They don’t create a continuing relationship.

Question 4: What services do freelance lawyers provide?
Answer: Generally, freelance attorneys are available to do the “in house” work
that is so time consuming, and yet is so crucial to effective advocacy. Typical
tasks include
• Legal research,
• Legal memoranda,
• Appellate and trial briefs,
• Motions,
• Discovery requests and responses.

The extent of the research can vary with the assignment. If you’re in the middle
of trial and a legal issue arises on which you need help, you might engage a

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freelance lawyer to do a quick review and find the cases you need on short notice.
Or, if there is more time, you might ask the freelance lawyer to do the
comprehensive research necessary to support a dispositive motion.

The extent of involvement in the written product can vary as well. If you’re a
good writer and you have the time, you might choose to draft your arguments
yourself, using the freelance lawyer primarily as a researcher. If you are short of
time, and you believe the freelance lawyer is up to the task, you might ask for a
finished appellate brief, ready for your final review and signature.

If you happen to be dealing with a freelance lawyer who has substantial practical
experience as a practicing attorney, you might also involve him in strategic and
tactical planning in a given case. If the experience is there, you might as well use
it.

Question 5: Do I have to tell my client that I’m using a
freelance lawyer?
Answer: It depends on what you’re asking the freelance lawyer to do. If all you
need is some legal research on an issue that you can clearly define without
disclosing any personal information about your client (if all you’re doing is posing
a hypothetical), then the answer is no. If, however, you disclose information
about the client that would normally be covered under your state bar’s
confidentiality rules, then the safe answer is yes.

It makes sense to err on the side of caution here, and whether it creates a
problem with your client will depend on who you hire. If you make sure to
contract with an attorney who has the experience and expertise necessary to do
the work required, and whose rates are reasonable, then disclosure should only
strengthen your relationship with your client. It is a rare client who will object to
the use of a freelance lawyer if they know that the lawyer is well qualified and
that the cost will be less than if you did all the work yourself.


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Question 6: Can I make a profit on the freelance lawyer’s
work? If the answer is yes, is that fair to my clients?
Answer: The answer to this question is probably yes, depending on where you
practice. Most state bar associations that have issued an opinion on this question
are consistent with the ABA’s 2008 Formal Opinion 08-451, which expressly
allows it. One state that does not allow it, at least for now, is Texas. The
Professional Ethics Committee for the State Bar of Texas issued Opinion No. 577
in March of 2007, and in that opinion the committee expressly barred a hiring
firm or lawyer from adding any profit to a fee paid to a freelance lawyer. You can
read that opinion here. http://www.solosmallfirm.com/files/Ethics_Opinion_577.pdf. It
is worth noting that this opinion predates the ABA pronouncement on the issue;
but given the reasoning of the opinion, it might not be any different if it was
issued today.

Regardless of where you practice, before you add any profit to a freelance
lawyer’s fee you should satisfy yourself that your state has (1) issued an ethics
opinion consistent with ABA Opinion 08-451, or (2) has no opinions on the books
that are inconsistent with it.

Is it fair to your clients? Absolutely. One very important aspect of the hiring
lawyer/freelance lawyer relationship is that the hiring lawyer maintains
responsibility to the client for the freelance lawyer’s work. There will necessarily
be some degree of oversight and supervision. At the very least the hiring attorney
always will read the product carefully, analyze the arguments presented, and
make an independent judgment whether the work meets her standards. In
making this independent judgment, and in accepting the risk that this judgment
might be wrong, the hiring lawyer earns and justifies any reasonable profit made
on the freelance lawyer’s work.

There is another way to look at this that argues for adding profit. If the freelance
lawyer is not a member of the bar in your state, then he or she is a nonlawyer
professional—in essence an extremely highly qualified paralegal. Everyone
understands that paralegals are not paid the $70 to $100 per hour that clients are
routinely charged for their work. Paralegals don’t make that kind of money, even
with retirement and benefits thrown in. The difference between the totality of a
paralegal’s pay and the reasonable rate charged for his work is profit, and no one

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objects to it. The same analysis and set of expectations should apply to work
performed by a freelance lawyer. Of course, you must bill the freelance lawyer’s
work to your client as a professional service, and not as a business expense. If
money you pay to the freelance lawyer shows up in the “expenses” section of
your bill, no add-on or premium is permitted.

Question 7: What should I look for in a freelance attorney?
Answer: You want to know that your freelance lawyer is
• Competent in research and writing,
• Experienced,
• Admitted to practice in at least one state,
• Covered by a malpractice policy, and
• Has access to first rate legal research resources.

Research And Writing Skills. You should be satisfied at the outset that your
freelance lawyer has the professional skills to do the work you need. To
determine this, start with the writing samples. Any freelance lawyer should have
a website that prominently features samples of that lawyer’s written work.
Review these samples carefully. Satisfy yourself that they meet the quality
standard that you expect. Ask yourself these questions: Are the issues clearly
stated? Are the arguments sound? Is the language lean and grammatically
correct? Are facts stated objectively and argued fairly? Are cited authorities on
point? These are threshold concerns. If the answer to any of these questions is
no, then don’t contact that lawyer. If the samples don’t measure up, then
chances are the work you can expect to receive won’t either.

Experience. Of course, it’s a given that a freelance lawyer must have some
history as a researcher and writer; but some practical experience representing
private clients can be invaluable. Your freelance lawyer is probably going to be
preparing written material that your clients will see and that you will have to
present or defend in court. If your freelance lawyer has herself represented many
clients over a period of years, she is more likely to prepare written work that your
own client will understand and approve. Why? Because she will have an
instinctive feel for client expectations and sensibilities. If your freelance lawyer
has himself appeared in court countless times to argue his own motions and
briefs, he is more likely to prepare work that your own judge will find persuasive.

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Why? Because he knows from his own experience what judges are looking for
and how they think. If your freelance lawyer has this kind of practical experience,
it can only improve the quality of the work you’ll receive.

Bar Admission. Ask if the freelance lawyer is admitted to practice in any state. If
so, is she a member in good standing of the state bar? Has her conduct ever been
the subject of any disciplinary proceeding? Asking these questions isn’t prying;
it’s just the exercise of ordinary due diligence. You have a right to know if the
lawyer you are about to hire has mustered the discipline and commitment
necessary to prepare for and pass a bar exam. If she has, she is more likely to
assess accurately the task you define and assign the time and resources necessary
to complete it properly and on time. As to professional conduct, if any protected
client information is to be shared with the freelance lawyer, you want to know
that the person you’re hiring will keep it safe.

Errors And Omissions Coverage. Any lawyer you’re thinking of hiring on a
freelance basis should have malpractice coverage. “Why?” you might be asking.
“Isn’t it true that the hiring lawyer bears the risk of a claim made by the private
client?” Yes, that’s true; but if your client sues you for a problem created by your
freelance lawyer that you didn’t catch, you might want to look for a little help
from your freelance. Even if you don’t, your carrier might. The fact that your
freelance lawyer has taken the precaution of getting coverage also tells you
something about that lawyer--you’re dealing with a careful person.

Research Resources. Finally, of course, the freelance lawyer must have access to
an online legal research plan (as a practical matter, either Lexis/Nexis or
Westlaw). In the alternative, he should have regular access to a fully-stocked law
library of the kind you would expect to find at an accredited law school or a state
supreme court. The cost of access to these resources should be his business
expense. He should not pass this cost through to the hiring attorney.


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Question 8: I get that it’s OK to hire a freelance lawyer, and I
see how to go about it. But should I do it? What’s in it for me
and my clients?
Answer: Unless you don’t have enough work to keep yourself busy, you (and
your clients) can benefit if you hire a freelance lawyer. The reasons why come
under three headings—time, money, and quality of services.

You’ll Buy Yourself Some Time: If your deadlines are stacking up, you’re feeling
the pressure. To some extent, this is a natural condition for the solo and small
firm lawyer, but it doesn’t have to be overwhelming. If you don’t have enough
time to meet all your deadlines and submit your very best work in each and every
case, hiring a freelance lawyer can be the answer. If you bring in a freelance
lawyer to handle all or part of a looming project, you can get control of your
schedule.

You’ll Make More Money: Any freelance lawyer you hire should bill at a rate
below your own. Depending on where you practice, you’re probably entitled to
add on a premium as your profit. This is entirely fair, as long as the amount you
charge your client for the service is reasonable. Why? Because you are taking
responsibility for the freelance lawyer’s work. You are exercising your own
professional judgment when you use that work, and you are taking the
professional risk that your judgment might be wrong. You are entitled to a
reasonable profit.

You’ll Improve the Quality of Client Services: If you have two projects looming
and not enough time to deliver your best in both, chances are that in the end you
won’t be happy with the final product in either. If you bring in a freelance lawyer
on one of the projects, two good things will happen. First, you’ll have more time
to spend on the project you keep for yourself and the final product will be better.
Second, a highly trained professional (your freelance lawyer) will spend the time
necessary to complete the other project according to your standards, and that
product too will be improved.


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Final Question: Great, I’m convinced. What do I do now?
Answer: This answer is the easiest yet. Call me at 207-701-1393. We can talk
about your project for free. If you don’t have time to talk, or if it’s getting late in
the evening (hint--If you’re working past midnight, you definitely need my help),
you can fill out the form on my website. Just go to www.USLegalWriting.com and
you’ll find the form on every page. Tell me a little about your project, leave your
name, number and email, and I’ll be in touch with you in very short order. You’re
also welcome to email me directly at jim@USLegalWriting.com, or write to me at
the address below. Regardless of how you contact me, I’ll review your project
quickly (at no charge to you) and together we’ll determine if I can help. I look
forward to hearing from you soon.

USLegalWriting.com
jim@USLegalWriting.com
7 Narrows Lane, Cushing, ME 04563
207-701-1393


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