Contract Lawyering: Benefits and Obstacles - January 2008 - Whoops: Legal Malpractice Prevention
| Publication year | 2008 |
| Pages | 61 |
2008, January, Pg. 61. Contract Lawyering: Benefits and Obstacles - January 2008 - Whoops: Legal Malpractice Prevention
January 2008
Vol. 37, No. 1 [Page 61]
Whoops: Legal Malpractice Prevention
Contract Lawyering: Benefits and Obstacles
by David C. Little
This Department is sponsored by the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. The Department welcomes articles and ideas or suggestions for article topics. For more information, for writing guidelines, or to submit an article or topic suggestion, contact Andrew McLetchie - (303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance - (303) 824-5320, reban@cobar.org.
About the Author:
David C. Little is a partner with Montgomery Little Soran & Murray, P.C. - (303) 773-8100, dlittle@montgomerylittle.com.
Contract lawyering has many advantages, but it is not a refuge from the rigors and regulations of traditional law practice. Instead, it is just one of many ways lawyers can provide legal services to clients. Practicing law as a contract or temporary lawyer has all of the characteristics of the private practice of law in a direct lawyer-client engagement - with one difference. In every case of contract lawyering, another practitioner will be involved in the lawyer-client relationship. Contract lawyering may be defined as a second lawyer being hired by a first lawyer to provide legal services to the first lawyer's client. Importantly, adding a second lawyer to a project or case alters the mix of obligations and expectations in the traditional lawyer-client relationship.
Contract lawyering involves working on a temporary or finite basis, oftentimes on a single project and always in a formal business arrangement with another lawyer. The arrangement can take many forms, such as independent contractor, of counsel, special counsel, and temporary or part-time hires. Likewise, contract lawyers can be hired to perform a wide variety of legal services, including fact-finding, research, legal and factual analysis, local counsel services, and specialized work, such as brief writing and presenting oral arguments.
There are two fundamental principles to recognize when working as a contract lawyer or hiring a contract lawyer. First, all of the ethical standards of the governing Rules of Professional Conduct must be observed.(fn1) There is no special treatment for the relationship just because it involves a "contract lawyer."
The second principle is that virtually all of the exposures to civil liability inherent in the traditional lawyer-client relationship also apply to the contract relationship.(fn2) However, there may be exposures associated with the lawyer-lawyer relationship that are unique to the contract situation and are not present in the traditional attorney-client relationship.
This article will discuss the complex relationships that can develop in a contract lawyer arrangement. Providing or securing temporary legal services can generate a number of unique obligations and exposures inherent in what truly is a "tri-party" relationship.
Ethical Rules
The hiring lawyer and the contract lawyer must recognize that each is subject to the full application of the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RPC). Each is bound by the full range of professional responsibilities to the client. Each is rendering legal services for the benefit of the client and must do so just as though each has had a direct engagement for legal services by the client.(fn3) A contract lawyer who works on a matter for a firm's client represents that client in all respects as far as that matter is concerned.(fn4)
The Contractual Arrangement
In virtually all contract lawyer arrangements, there is no direct retainer or engagement agreement between the contract lawyer and the client. The initial engagement for the overall client matter is an agreement between the hiring lawyer and the client. This initial engagement usually is followed by a second engagement between the hiring lawyer and the contract lawyer, for the latter to work on some discrete part of the general engagement. This secondary contractual arrangement can give rise to legal and ethical responsibilities not necessarily present in the underlying arrangement between the hiring lawyer and the client. For example, the contract lawyer's duty of communication and advice to the client can become a complex issue.(fn5) If circumstances warrant, the contract lawyer may be obliged to inform the client of problems in the hiring lawyer's legal services or advice.(fn6)
Client Issues
It always is best for the client to authorize the temporary arrangement.(fn7) The client's approval and authorization is prudent, although it may not be absolutely essential in situations where the contract lawyer's work is closely supervised and there is little judgmental discretion involved.(fn8) However, whether the client is directly involved or not, both the hiring lawyer and the contract lawyer remain fully responsible to the client for all of the contract lawyer's work.(fn9)
The ethical concepts codified in the Colorado Rules apply equally to both the hiring lawyer and the contract lawyer. The rules addressing competence, communication, confidentiality, conflict of interest, and independence are in full force and application. Because there is a lawyer-client relationship between the...
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