Formal Opinion 105: Opinion on Temporary Lawyers

• Jurisdiction: Colorado,United States
• Citation: Vol. 28 No. 7 Pg. 31
• Pages: 31
• Publication year: 1999

28 Colo.Law. 31 Colorado Lawyer 1999.

1999, August, Pg. 31. Formal Opinion 105: Opinion on Temporary Lawyers

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31

Vol. 28, No. 7, Pg. 31

The Colorado Lawyer
August 1999
Vol. 28, No. 8 [Page 31]

Departments
CBA Ethics Committee Formal Opinions
Formal Opinion 105: Opinion on Temporary Lawyers

The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association

[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.]

105 Opinion on Temporary Lawyers
Adopted May 22, 1999

Introduction and Scope

Introduction

The provision of legal services to clients and the public has undergone changes in recent years due to rapidly changing technology and economic factors affecting the supply and demand for lawyers' services. These changes include significant increases in the number of attorneys admitted to practice, increasing specialization of lawyers, increased and sometimes prohibitive costs of legal services and resulting pressures to reduce costs and expenses, technology that permits attorneys to work outside of the traditional office setting with greater ease, and the desire of many lawyers to achieve flexibility in their working schedules. As a result alternative methods of practice have emerged; these include lawyers offering their services as "temporary" lawyers to other lawyers, law firms, or corporate or other institutional legal departments to work or assist on specific projects or matters.1 The temporary lawyer may offer his or her services individually or through the auspices of a placement agency.2

Scope

The use of the services of temporary lawyers as a means of providing legal services to clients warrants consideration of the ethical problems or issues that might be encountered by both the temporary lawyer and the lawyer or firm utilizing such services. Considering the myriad of possible arrangements by which temporary legal services can be provided or utilized, this opinion does not attempt to comment on the ethical considerations implicated in every possible arrangement. Rather, this opinion addresses certain general ethical principles involved in the provision of legal services or assistance by temporary lawyers who are not otherwise regularly employed by the employing lawyer or law firm.3

This opinion is based on the premise that an attorney-client relationship exists between the temporary lawyer and the client(s) represented by the engaging law firm for whom the temporary lawyer provides services. While this opinion attempts to address certain key ethical issues facing both the temporary lawyer and the engaging law firm, the temporary lawyer must consider and observe all ethical duties arising from the attorney-client relationship. Among these are the duty to provide competent representation under Colo. RPC 1.1 to act with reasonable diligence under Colo. RPC 1.3; to protect the confidentiality of information relating to the representation under Colo. RPC 1.6; and to exercise independent professional judgment under Colo. RPC 2.1. In short, the temporary lawyer must observe all duties owing from lawyer to client, notwithstanding the temporary nature of the relationship or the interposition of the law firm.

Syllabus

A temporary lawyer represents the client of the employing lawyer or law firm, and the application of various provisions of the Colorado Rules of Professional Conduct is determined based on such attorney-client relationship. The proscriptions of the Rules of Professional Conduct relating to conflicts of interest apply to the temporary lawyer regardless of the extent or duration of his or her representation of the client. Conflicts of interest of the temporary lawyer or the engaging lawyer or law firm may be imputed, one to the other, depending on whether the circumstances surrounding the engagement establish that the temporary lawyer is associated with the engaging lawyer or with other lawyers in the engaging law firm. Whether such an association exists involves a functional analysis of, inter alia, the degree to which the temporary lawyer or the firm has access to information regarding each other's other clients. Prior to the employment, both the engaging lawyer or law firm and the temporary lawyer have the responsibility to identify actual or potential conflicts of interest and to take appropriate measures to insure against imputed disqualification. Such responsibilities cannot be delegated to a placement agency.

Whether the financial arrangement between the temporary lawyer and the engaging lawyer or law firm constitutes a division of fees, implicating the requirements of Colo. RPC 1.5(d), depends on whether the temporary lawyer's compensation is directly tied to or dependent on the client's payment of fees to the engaging lawyer or law firm. If the temporary lawyer's fees are tied to, or dependent on, payment by the client, there is a division of fees. If the temporary lawyer is entitled (and the engaging lawyer or firm is obligated) to payment of his or her fees irrespective of payment by the client, the arrangement does not constitute a division of fees. Even if there is no division of fees requiring disclosure to and consent of the client, other applicable rules may require disclosure of the arrangement to the client under the circumstances.

Where the services of a placement agency are employed, both the temporary lawyer and engaging lawyer or law firm must insure that the financial arrangements do not involve the sharing of legal fees with non-lawyers, in violation of Colo. RPC 5.4(a), and that contractual arrangements with the placement agency do not constitute an unreasonable restriction on the right of a lawyer to practice after termination of the contract with the agency, contrary to Colo. RPC 5.6.

CONFLICTS

A temporary lawyer who performs work for a client represents that client, regardless of the scope or duration of the work.4 Therefore, in all instances involving clients for whom the temporary lawyer is working or actually has worked, the lawyer must adhere to the conflict rules regarding current and former clients. See Colo. RPC 1.7, 1.9. In practical terms, this means that, absent effective client consent,5 the temporary lawyer must not work on any matter in which (a) the representation will be directly adverse to a client for whom the temporary lawyer is doing work at another firm, even if the two matters are unrelated; (b) the representation of a client may be materially limited by the temporary lawyer's responsibilities to another client for whom the temporary lawyer has performed work;6 or (c) the client's interests are materially adverse to the interests of a former client for whom the temporary lawyer did work at another firm, if the two matters are substantially related.

The more difficult conflict question involves other clients of the engaging firm or lawyer for whom the temporary lawyer provides no services. Colo. RPC 1.10(a) provides: "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2." The key question is whether a temporary lawyer is "associated in a firm." If yes, then the rule of imputation set forth in Colo. RPC 1.10(a) applies, and all of the clients (and conflicts) of the lawyer or firm employing the temporary lawyer are deemed to be the temporary lawyer's clients (and conflicts), and vice versa. If the temporary lawyer is not associated in a firm under Colo. RPC 1.10(a), then the firm's other present or former clients for whom the temporary lawyer has not performed work are not deemed to be present or former clients of the temporary lawyer, and conflicts are not imputed one to the other.

The question of imputation is critical in determining whether a conflict exists, particularly where the temporary lawyer works for more than one firm. If the temporary lawyer is deemed to be "associated" with each of the firms for whom he or she does work, then the current and former clients of each firm might be deemed the current and former clients of the temporary lawyer and of all the other firms with which the temporary lawyer is associated. In that situation, a firm could face disqualification if one of its clients were adverse to a client of another firm with whom the temporary lawyer is associated, even if the temporary lawyer did not work on any matter for either client. Cf., ABA Formal Op. 90-357 (May 10, 1990) (potential for conflicts will put a practical limit on the number of "of counsel" relationships undertaken by individual attorney: because "of counsel" attorney is associated with firm under Rule 1.10(a), "there is attribution to the...