When Using Freelance Legal I Services, 0618 COBJ, Vol. 47, No. 6 Pg. 36
| Author | SARAH COLEMAN, J. |
| Position | Vol. 47, 6 [Page 36] |
PROFESSIONAL CONDUCT AND LEGAL ETHICS
SARAH COLEMAN, J.
Both freelance lawyers and hiring lawyers should address ethical issues before and during the course of the representation. This article explores the major ethical issues associated with outsourcing legal work to a freelance lawyer.
PROFESSIONAL CONDUCT AND LEGAL ETHICS
Reflective of the growing “gig economy,” lawyers are increasingly working on a freelance basis. The freelance law model is compatible with the Colorado Rules of Professional Conduct (Colo. RPC or Rules) so long as the lawyers involved in the freelance relationship identify and address ethical issues throughout the course of the relationship. With common sense and diligence, a freelance legal services relationship can provide significant benefits to the freelance lawyer, the hiring lawyer, and the client.
A freelance relationship involves multiple ethical issues, including conflicts of interest, confidentiality, proper handling of compensation arrangements between the freelance lawyer and the hiring lawyer (and between the lawyers and client), and appropriate supervision of the freelance lawyer’s work. This article examines the basics of a freelance relationship and provides guidance for handling these potentially thorny but manageable areas of professional responsibility.
The Basics of Freelance Legal Services
Lawyers form a freelance relationship when a non-employee lawyer is retained to provide legal services by another lawyer or law firm on behalf of their clients.1 This is often done through an independent contractor agreement between the freelance lawyer and the hiring lawyer or firm. Although the freelance lawyer generally provides legal services directly to the hiring lawyer, the freelance lawyer actually represents the hiring lawyer’s clients.[2]
The non-employee lawyer may be called a temporary lawyer, contract lawyer, or freelance lawyer. Opinions from the Colorado Bar Association (CBA) Ethics Committee and American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility use these terms interchangeably. Although the terms are largely synonymous, they may carry slightly different connotations. For example, the term “contract lawyer” may imply that the lawyer is working through a placement agency or other third party. In contrast, the term “freelance lawyer” may imply that the lawyer works with many other lawyers as an independent contractor without the use of an intermediary, while the term “temporary lawyer” may imply that the relationship between the freelance lawyer and the hiring lawyer is of short duration. This article uses the term “freelance lawyer” to include all of these concepts.
The other half of the freelance legal services equation is the hiring lawyer or law firm that represents a client and hires the freelance lawyer to provide legal services in a non-employment relationship. The hiring lawyer may be called a retaining lawyer, engaging lawyer, outsourcing lawyer, or hiring lawyer. These terms likewise are generally synonymous and the ethics opinions use them interchangeably. The terms also apply when a firm, rather than an individual lawyer, contracts with the freelance lawyer in an independent contractor, temporary, or freelance relationship. This article uses the term “hiring lawyer” to refer to a lawyer or firm that hires the freelance lawyer to work on client matters.
A freelance lawyer and hiring lawyer can work together in a variety of ways to best serve their needs and their client’s needs. For example, a hiring lawyer could use a legal services placement agency to retain a freelance or temporary assignment lawyer, such as when a law firm outsources a document review project for a client. Additionally, a hiring lawyer could directly contract with the freelance lawyer to work as an independent contractor. Further, the hiring lawyer could have an ad hoc arrangement with the freelance lawyer, which would allow the freelance lawyer to cover temporary or short-term assignments when needed.
A freelance relationship also affords flexibility for the conditions under which the legal work will be performed. For example, in a more traditional model, the freelance lawyer could work in the hiring lawyer’s office, sharing the hiring lawyer’s office space, equipment, and support staff. Alternatively, the hiring lawyer could contract with the freelance lawyer to work remotely and never share a physical space, computer resources, or staffing resources with the hiring lawyer.
A freelance relationship may also provide flexibility in terms of the duration and scope of the work. For example, a hiring lawyer may contract with the freelance lawyer to have an ongoing, year-over-year relationship. Or a hiring lawyer may need the freelance lawyer for one or a few specific projects. Additionally, a hiring lawyer may contract with the freelance lawyer to work together on many client matters. Alternatively, the hiring lawyer and freelance lawyer may have just a one-case or one-project relationship.
Generally speaking, and subject to the conflicts analysis addressed below, the freelance lawyer would have the flexibility to work for many different hiring lawyers simultaneously. In certain circumstances, the hiring lawyer might contract to work exclusively with the freelance lawyer during the term of their relationship, such as when the freelance lawyer works full-time on a discovery or document review project for a few weeks or months. The inherent flexibility of the freelance law relationship is often attractive to both parties.
Client–Lawyer Relationship
A critical first step in evaluating whether a freelance relationship complies with the Rules is evaluating whether the freelance relationship between the hiring lawyer and the freelance lawyer creates a client–lawyer relationship. At first blush, it may be tempting for the participants in such a relationship to conclude that there is no client–lawyer relationship. After all, the hiring lawyer is contracting with the freelance lawyer to provide legal services to the hiring lawyer’s clients, not retaining the freelance lawyer as the hiring lawyer’s own counsel for the hiring lawyer’s own legal need.
As tempting as it may be to believe that no client–lawyer relationship exists, all participants in a freelance legal services relationship should reject that idea. CBA Formal Ethics Opinion 105 unambiguously explains that a client–lawyer relationship exists between a freelance lawyer and the hiring lawyer’s (or frm’s) client notwithstanding the temporary nature of the relationship, the limited scope of the representation, or the intermediary presence of the hiring law firm.3 Thus, a freelance lawyer forms a client–lawyer relationship with the hiring lawyer’s (or firm’s) client even if the freelance lawyer and the client never meet, if the freelance lawyer handles only minor or limited tasks on behalf of the client, or if the hiring lawyer does not disclose the use of the freelance lawyer to the client.
The predicate that the freelance lawyer forms a client–lawyer relationship with the hiring lawyer’s client drives the rest of the analysis under the Rules. The existence of a client–lawyer relationship means that the freelance lawyer owes the hiring lawyer’s client all of the obligations applicable to a client–lawyer relationship under the Rules applicable to lawyers representing clients.4 For example, the freelance lawyer owes the obligation to ensure competence in performing the requested legal work.5 Likewise, a freelance lawyer must ensure that she
■ diligently handles the client matters,[6]
■ ensures reasonable communication between the lawyer and client,7
■ does not reveal information relating to the representation,8 and
■ avoids conflicts of interests with current 9 or former10 clients, including circumstances where the freelance lawyer’s personal needs or relationships with other hiring lawyers may create a “significant risk that the representation [needed by the hiring lawyer’s client] will be materially limited . . . .”11
Freelance Legal Services Compared to Limited Scope Representation
The growing trend of lawyers providing unbundled legal services, which is also known as limited scope representation, is one example of the growth of the gig economy in the legal profession. Clients and lawyers are increasingly using the limited scope model for on-demand, efficient, and cost-effective representation.
Rule 1.2(c) allows a lawyer and client to agree to limit the scope or objectives of the representation the lawyer provides to the client.12 The limitation must be reasonable and the client must give informed consent.[13] Colorado’s Rules of Civil Procedure state that a lawyer may provide unbundled legal services to a pro se party by fling a notice of limited appearance for specified proceedings and may file a notice of completion of limited appearance, which terminates the lawyer’s appearance without further action by the lawyer or the court.14 Lawyers may also ghostwrite pleadings or appellate briefs for a self-represented litigant, subject to certain specific limitations.15
The U.S. District Court for the District of Colorado, however, specifically excludes Rule 1.2(c) from the standards of professional responsibility applicable in its court.16 In the federal court in Colorado, counsel must move for leave to provide limited scope representation.17 Specifically, the lawyer must file an Entry of Appearance to Provide Limited Representation.18 If the court permits the limited scope representation, it will enter an order that defines the scope of the...
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