legalresearchandwritingpro.com random header image

California Lawyers Need Not Reveal Freelance Lawyers’ Involvement to Court, Opposing Counsel

Written by Lisa Solomon on April 28th, 2014 · No Comments


In a new ethics opinion, the Orange County Bar Association’s Professionalism & Ethics Committee has opined that, under most circumstances, a California lawyer is not obligated to reveal that a freelance lawyer participated in drafting documents submitted to the court. In the opinion, the Committee expands the use of the term “ghostwriting” from its common legal industry connotation (a lawyer’s participation in drafting a document that a pro se party submits to the court without revealing the attorney’s involvement) to encompass work that one lawyer (whether or not admitted to practice in California) performs for another lawyer.

The Committee first explained that concerns about the duties of candor (Cal. Bus. & Prof. Code §6068(d); Cal. R. Prof’l Conduct 5-200(A), (B)) and honesty (Cal. Bus. & Prof Code §6106) that have led some jurisdictions—although, notably, not California—to require disclosure of an attorney’s involvement in drafting documents submitted by pro se litigants are inapplicable where the ghostwriting is performed for another lawyer. This is so because the freelance lawyer has not made any affirmative statement to the court or in any way misled the court or opposing counsel.

The Committee next opined that an out-of-state lawyer’s ghostwriting (for a lawyer) generally will not constitute the unauthorized practice of law. The Committee quoted with approval the following language from Winterrowd v. American General Annuity Ins., which involved an Oregon lawyer (not admitted in California or pro hac‘d into the Central District) who assisted a California lawyer in a case before the United States District Court for the Central District of California:

[There is no ethical violation] so long as the particular person admitted in that state is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law…

The important requirement in this respect is simply that the local [lawyer] must be admitted in the state and must have the ability to make, and be responsible for making, decisions for the lawyer group.

556 F.3d 815, 824‒25 (9th Cir. 2009). The court noted, however, that, an out-of-state freelance lawyer who has: (1) significant involvement with the client and (2) engages in “sufficient activities in the state or creat[es]…a continuing relationship with a California client that includes the exercise of legal duties” may be considered to be practicing law under Birbrower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal. 4th 119, 128 (1998).

Although the issue before it was whether ghostwriting must be revealed to the court and opposing counsel, the Committee next opined that the hiring attorney should inform the client of the hiring of an outside lawyer or firm if the use of the outside lawyer or firm is a significant development. The Committee further recommended disclosing the use of a freelance attorney at the outset of the representation if the hiring attorney knows he will be using an out-of-state freelance attorney. It’s not clear why the Committee limited this recommendation to cases involving out-of-state freelance attorneys, as opposed to California-licensed freelance attorneys. (I recommend disclosing the use of a freelance lawyer to the client and obtaining the client’s consent under all circumstances.)

The Committee noted that a hiring attorney must disclose a freelance lawyer’s involvement in a case to the court and opposing counsel if the client seeks to recover attorneys fees in the litigation.

Finally, the Committee reiterated the bedrock rule that distinguishes the relationship between hiring attorneys and freelance attorneys from the relationship between co-counsel: in the hiring attorney-freelance attorney relationship, the hiring attorney must appropriately supervise the work of the freelance attorney to ensure that the client is represented in a competent manner.

Opinion 2014-1 treads little new ground. While none of the numerous state and local California ethics opinions address whether there is an obligation to disclose to the court and the opposing party a freelance attorney’s participation in drafting court documents, all of the other issues addressed in the opinion are well-settled in California and nationally.

Freelance Lawyers as Techno-Sherpas, Leading the Way in Collaboration

Written by Lisa Solomon on April 4th, 2014 · No Comments


Freelance lawyers leading the way in collaborationSherpas guide Himalayan climbers to mountain peaks and carry their equipment. As a freelance lawyer, I help my clients reach new levels of success in their practices by shouldering part of their workload on an as-needed basis.

Because all of my work involves collaborating with other lawyers, and because technology has always been the key to my ability to do that on a remote (virtual) basis, I’ve also long served as a guide, introducing my clients to new and more efficient ways to collaborate. When I launched my practice in the mid-’90s, for example, I introduced many of my clients to that newfangled tool called e-mail and its killer feature: the ability to attach a document that the recipient could download and edit.

While technology has come a long way since then, efficient collaboration among solo and small firm lawyers has often been stymied by the fact that the process must be usable for all team members, regardless of their level of comfort with new technologies. Larger organizations don’t have this problem because they can require that their employees have a certain level of technological fluency. The good news is that new technologies are becoming easier and easier to use, substantially flattening or eliminating the learning curve.

Although I already use technology to efficiently accomplish my own work, as a result of attending ABA Techshow at the end of March, I’ve decided to make a renewed push to help my clients use technology to collaborate more efficiently. To that end, rather than exchanging documents that I draft for my clients via e-mail, I’ll be storing them in, and sharing them from, Microsoft OneDrive. This will enable us to edit the same document, rather than having to e-mail different versions of each document back and forth; in fact, we’ll even be able to edit the same document at the same time. The confidentiality of all documents will be ensured by the use of Viivo, which secures files shared from any device and into public cloud storage services like Dropbox, Google Drive, OneDrive and Box. I’m committed to providing my clients clear instructions on how to get started, and to answering any questions or concerns about this new method of collaboration at no charge. And, of course, for those clients who use WordPerfect rather than MS Word, I’ll continue to draft documents in their preferred application.

If you’re a freelance lawyer, what technologies and processes do you use to facilitate efficient collaboration with your clients? If you’ve hired a freelance attorney, have you e-mailed documents back and forth or used another method (such as creating an account for the freelance attorney in your practice management system, with access rights limited to the project(s) on which the freelance attorney is working)?

Iowa Ethics Committee Issues Outsourcing Opinion

Written by Lisa Solomon on November 12th, 2013 · No Comments


In late August, the Iowa State Bar Association’s Committee on Ethics and Practice Guidelines issued Ethics Opinion 13-03, entitled The Use of Contracted Lawyers. Not surprisingly, the Committee’s conclusions concerning the issues of competency, consent, control, compensation and conflicts in the context of the relationship between the hiring attorney (which the Committee calls the “retained lawyer”) and the contract (a/k/a freelance) lawyer (which the Committee calls the “contracted lawyer”) are generally consistent with the conclusions of the ABA and all the states that have issued opinions concerning the use of contract lawyers. In fact, the opinion extensively cites ABA Formal Op. 08-451, Lawyer’s Obligations When Outsourcing Legal and Non-Legal Support Services. Strangely, though, the opinion does not cite the more recent revised ABA Model Rules Comments concerning outsourcing, even though at least one comment (Cmt. [6] to Model Rule 1.1, concerning competency) imposes more stringent obligations on hiring attorneys than Op. 08-451 imposed.

Preliminarily, Op. 13-03 defines a “contracted lawyer” as one who is “utilized under a contract for temporary employment.” Later, the opinion states that contract lawyers “provide their services on an ad hoc basis as assigned by an intermediary agency.” Although the opinion thus seems to ignore freelance lawyers (who contract directly with hiring attorneys to provide services on an ad hoc basis), there is no reason to believe that this was intentional. Accordingly, Iowa hiring attorneys and the freelance lawyers who work for them should consider Op. 13-03 to be governing.

Competency

Consistent with both Op. 08-451 and Comment [6] to Model Rule 1.1, Op. 13-03 recognizes recognized that the hiring attorney must perform the same level of due diligence when hiring a contract lawyer as when hiring an associate, including ensuring that the contract lawyer has the necessary legal expertise and is “ethically sound.” The opinion also notes in this section that firms frequently turn to contract lawyers when they are faced with a “volume of business that suddenly overwhelms the law firm’s legal staff.”

Control

Op. 13-03 concludes that Iowa R. Prof’l Conduct 32:5.1(b) (which requires a lawyer to make reasonable efforts to ensure that any lawyer over whom he has direct supervisory control conforms to the Iowa Rules of Professional Conduct) and (c) (which details the circumstances under which an attorney is vicariously liable for ethical breaches by a lawyer over whom he has direct supervisory control) apply to the relationship between hiring attorneys and freelance attorneys. The opinion notes that, by contrast, Rules 32:5.1(b) and (c) usually do not apply to “of counsel” or co-counsel relationships.

Consent

Op. 13-03 incorrectly stated that ABA Ops. 88-356 and 08-451, together, require the hiring attorney to obtain client consent to the use of a contract lawyer where an intermediary placement agency is involved, but do not require the hiring attorney to obtain client consent “where there is an employer-employee relationship between the [hiring] and [contract] lawyer.” This cannot be correct, because, by definition, there is never an employer/employee relationship between the parties to an actual outsourcing relationship (as opposed to a relationship in which the hiring attorney attempts to avoid being held liable as an employer [for purposes such as the payment of employment taxes] by mischaracterizing an employee as an independent contractor).

In fact, ABA Formal Op. 08-451 required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm. This has been superseded by Comment [6] to Model Rule 1.1, which states that a lawyer should “ordinarily” obtain the client’s informed consent to outsourcing. Though Op. 13-03 states that “Iowa lawyers who anticipate engaging the services of a contract[] lawyer should do so with the consent of their client,” (emphasis supplied) it seems clear that the Committee meant to make client consent mandatory (“must”) rather than precatory (“should”).

Compensation

Like every other ethics opinion that has dealt with this subject (except Texas Op. 577), Op. 13-03 concludes that the hiring attorney can make a profit on work performed by a contract lawyer, as long as the work is billed as a legal fee rather than an expense.

Conflicts

Op. 13-03 states that Iowa Rules of Prof’l Conduct 32:1.7, 1.9 and 1.0, concerning conflicts of interest and imputed conflicts of interest, apply equally to associates, partners and contract lawyers. With respect to imputed conflicts, the opinion provides that “the burden rests with the contract[] lawyer to recognize direct conflicts and to avoid placement in law firms that represent clients adverse to the contract[] lawyer’s current or former clients. The opinion reasons that screening measures—which, under ABA Op. 88-356, are sufficient to enable a contract lawyer to avoid imputed disqualification—are not practical or possible in some situations, and that the efficacy of screening measures cannot be guaranteed. In my view, this concern is misplaced: even assuming that screening is not practical or possible in some situations, and that its efficacy can’t be guaranteed, these limitations do not undermine the practicality and efficacy of screening in many, if not most, outsourcing relationships.

Citigroup Judge: Pay Contract Lawyers What They’re Worth

Written by Lisa Solomon on August 3rd, 2013 · 2 Comments


In an opinion issued last Thursday in In re Citigroup Inc. Securities Litigation, Judge Sidney Stein of the U.S. District Court for the Southern District of New York found that the reasonable blended hourly rate for the contract attorneys hired by class counsel—most of whom performed document review and other relatively low-skilled tasks like summarizing depositions—was $200/hr. Unfortunately, to date, the only widely available article that discusses this aspect of the opinion in depth—a Forbes piece entitled Judge Cuts Fees In Citigroup Settlement, Citing ‘Waste And Inefficiency’—misleads readers about the basis for the Court’s determination. (Alison Frankel, writing for Thomson Reuters as part of its Practitioner Insights service, got it right. However, Practitioner Insights are available only to certain WestlawNext subscribers—even though I’m a subscriber, her column is outside my plan.)

According to Forbes writer Daniel Fisher,

The order…cut the fee award to [class counsel] by $26.7 million to $70.8 million. The law firm’s request for nearly $100 million in fees drew a spirited objection from attorney Ted Frank of the Center for Class Action Fairness, who accused [class counsel] of padding its bill by trying to mark up thousands of hours of work by inexpensive contract attorneys at rates of more than $400 an hour.

Contract attorneys in New York, as I have previously reported, typically make less than $50 an hour. While [class counsel] told the court the lawyers it hired through temp agencies were highly qualified with specific skills in securities litigation, people familiar with the attorneys who worked on this case say they were nearly all inexperienced lawyers who spent their time reviewing documents. Judge Stein agreed, saying “not all of the contract attorneys had the type of experience—and few performed the type of work—that justifies associate‐level rates.”

* * *

Frank argued those contract attorneys should have been billed out as an expense, since most of them worked outside [class counsel]‘s offices and didn’t require the health insurance and other overhead of full-time employees. The judge rejected that idea, saying case law supports paying a markup for the work of licensed attorneys as opposed to, say legal secretaries or outside experts. However, the judge also rejected [class counsel]‘s claim that these lawyers were the equivalent of associates at white-shore [sic] Manhattan firms.

The judge ultimately cut the fees he’d consider under the “lodestar” for calculating the total award to $200 an hour. That’s still a hefty markup from the $32 an hour I have been told most of the lawyers were actually paid by temp agencies such as Hudson Legal.…

“The proposed contract attorney rates reach as high as $550, with a blended hourly rate of $466—higher than the $402 per hour rate for associates!” the judge noted. One lawyer working for another firm seeking payment in the Citigroup case was paid $15 an hour, the judge noted, yet that firm sought to bill the lawyer out at $550 an hour.

Although Judge Stein did note that one lawyer working for a firm seeking payment in the Citigroup case was paid $15 an hour, yet that firm sought to bill the lawyer out at $550 an hour (Opinion, p.42, fn.11), the firm’s profit margin was not the basis for the reduction of the contract attorney blended hourly rate to $200. Indeed, Judge Stein explicitly stated that “the amount Counsel paid contract attorneys is not the issue….” (Opinion, p.42).

Rather, in the course of its analysis, the Court quoted with approval In re AOL Time Warner Shareholder Derivative Litig., No. 02 Civ. 6302 (CM), 2010 WL 363113, at *22 (S.D.N.Y. Feb. 1, 2010) (Special Master’s R&R, adopted as Court’s opinion, id. at *1), in which that court explained: “‘The Court should no more attempt to determine a correct spread between the contract attorney’s cost and his or her hourly rate than it should pass judgment on the differential between a regular associate’s hourly rate and his or her salary.’” (Opinion, p.37).

Judge Stein explained that, in determining the appropriate blended hourly rate,

“[t]he Court also directed Counsel to produce the resumes of the contract attorneys here and considered them, and agrees with Counsel that some of these attorneys were particularly well-qualified. The Court further agrees that a paying client surely would have paid something approaching an associate’s rate for some number of the hours here. But the Court finds that not all of the contract attorneys had the type of experience—and few performed the type of work—that justified associate-level rates.

(Opinion, p.42, fn.11).

And later:

The Court has taken account of the qualifications and experience of the various contract attorneys here, the largely document-review work they performed, and the wide range of rates accepted in the market. Considering the hypothetical client and the range of services at issue, the Court concludes that a reasonable blended hourly rate for the contract attorneys here is $200.

(Opinion, p.43).

The test the court applied is consistent with the conclusion the ABA’s Standing Committee on Ethics and Professional Responsibility reached in Formal Op. 08-451 (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services). As I explained back in 2008, in that opinion, the Committee stated:

…the fees charged by the outsourcing lawyer must be reasonable and otherwise comply with the requirements of Rule 1.5. In Formal Opinion No. 00-420, we concluded that a law firm that engaged a contract lawyer could add a surcharge to the cost paid by the billing lawyer provided the total charge represented a reasonable fee for the services provided to the client. This is not substantively different from the manner in which a conventional firm bills for the services of its lawyers. The firm pays a lawyer a salary, provides him with employment benefits, incurs office space and other overhead costs to support him, and also earns a profit from his services; the client generally is not informed of the details of the financial relationship between the law firm and the lawyer. Likewise, the lawyer is not obligated to inform the client how much the firm is paying a contract lawyer; the restraint is the overarching requirement that the fee charged for the services not be unreasonable.

(For this reason, it’s surprising that even legal ethics lawyer John Steele got the story wrong, reporting at Legal Ethics Forum that Judge Stein “rejected the markup of fees for contract lawyers.”)

As readers of this blog know, there are a number of distinctions between “contract lawyers” and “freelance lawyers.” Even though Citigroup involves fees charged by large firms for (primarily) document review by contract lawyers working for agencies, rather than fees charged by solo practitioners and small firms for higher-skilled work performed by independent freelance lawyers, the opinion is significant to freelance attorneys and the firms that hire them because it stands for the proposition that, if the fee charged for work performed by a freelance lawyer is challenged, it should be upheld if it is reasonable based on the freelance lawyer’s qualifications and the nature of the work performed, regardless of how much profit the hiring attorney makes. This is of particular benefit to firms that work with highly qualified freelance lawyers.

Massachusetts Ethics Body Proposes Changes Concerning Outsourcing

Written by Lisa Solomon on July 15th, 2013 · No Comments


Last week, the Massachusetts Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct published a comprehensive set of proposed revisions to the Massachusetts RPC. As the Committee explains, most of the proposed revisions reflect recommendations made by the ABA’s Ethics 2000 Commission and its more recent Commission on Ethics 20/20.

Last year, the ABA adopted amendments to the comments to ABA Model Rules 1.1, 5.3 and 5.5 to clarify lawyers’ obligations when outsourcing work, whether domestically or internationally. The proposed amendments to the comments to the Massachusetts Rules of Professional Conduct concerning outsourcing track the ABA amendments word for word.

As I explained in my analysis of the new Model Rule comments, those comments didn’t introduce anything new or surprising; rather, they primarily elevated many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments. The changes will have the same effect in Massachusetts, but will carry greater weight in Massachusetts disciplinary proceedings than changes to the Model Rules comments.

The Proposed Changes

The Committee proposes adding the following new comment to Model Rule 1.1 (competence):

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

The requirement to obtain the client’s informed consent to outsourcing in most cases is stronger than that imposed by ABA Formal Op. 08-451, which required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm.

The Committee proposes adding the following comment to Rule 5.3, Responsibilities Regarding Nonlawyer Assistants:1

[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

The factors listed in this proposed new comment essentially parallel the factors recited in the proposed new comment to Rule 1.1. The factors are consistent with the discussion in ABA Op. 08-451 concerning a lawyer’s supervisory responsibilities when outsourcing.

Finally, the Committee proposes adding the following sentence to the Comment [1] to Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law: “For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.” Because: (1) by definition, a freelance lawyer is always hired by another lawyer, not directly by the client; and (2) one of the fundamental characteristics of the relationship between the freelance lawyer and the hiring attorney is that the hiring attorney retains the obligation to adequately supervise the freelance attorney, an out-of-state freelance lawyer performing “inside” work (such as legal research and writing) for a Massachusetts lawyer will not be considered to be engaging in the unauthorized practice of law in Massachusetts or in the freelance lawyer’s state(s) of admission.

Next Steps

Although revising the ABA Model Rules comments concerning outsourcing was a two-year process that involved involved multiple drafts and garnered hundreds of pages of comments, because the proposed changes to the Massachusetts RPC simply conform the state’s rules to the ABA Model Rules, I don’t anticipate much debate about the Massachusetts proposal.

The Committee will make its recommendations to the SJC following a public comment period. Comments, which are due by December 2, 2013, should be directed to the Standing Advisory Committee on the Rules of Professional Conduct, Senior Attorney Barbara Berenson, John Adams Courthouse, One Pemberton Square, Boston MA 02108. Comments may also be sent to barbara.berenson@sjc.state.ma.us.

1The Committee recommends replacing “assistants” with “assistance” in the rule’s title.

Product Review: Is Best Authority the Best Choice for Your Firm?

Written by Lisa Solomon on June 17th, 2013 · No Comments


Although rules in all state and federal appellate courts; many federal district courts; and some state trial-level courts require that every brief submitted contain a table of authorities (TOA), many solo and small firm lawyers don’t know how to create a TOA using Microsoft Word’s native “Table of Authorities” feature. Best Authority is a Microsoft Word add-in that, according to its creators, helps lawyers create TOAs four to eight times faster than “any other method they’ve used.” It is compatible with Word 2003, 2007, and 2010. (Best Authority Light and Word 2010 were used for this review.)

How Best Authority Works
Creating a TOA with Best Authority is a five-step process:

  1. Startup
    1. What it is: during this step, you set preferences for how Best Authority will process your document.
    2. How it works: the most important part of this step is determining the formatting and organization of the TOA. To help you, Best Authority offers a number of preset “schemes” (option sets); there is also an “Advanced” option that allows you to modify the schemes to satisfy your court’s requirements. Although I am usually comfortable setting advanced options in Word and other programs, I found the “Advanced” dialog—which requires you to choose options based on how they appear in different schemes instead of simply listing the choices for each option in a drop-down menu—to be extremely confusing.
    3. Comparison to native TOA creation: TOA preferences are set by choosing “Insert Table of Authorities” on the References tab. You can choose from four preset formats (which cover font, spacing, etc.) or modify Word’s preset TOA style to suit your needs. You can also choose which categories of authorities to include and create additional categories.
  2. Scan
    1. What it is: in this step, Best Authority scans your document for citations. The software recognizes Bluebook, California Style Manual, and all other citation formats.
    2. How it works: after scanning a document, Best Authority displays a summary of how many groups (cases, statutes, etc.); authorities; and citations (i.e., including full and short citations for each authority) it found.
    3. Comparison to native TOA creation: the first full citation to a source must be marked manually. If you also create a short citation and use the “mark all” function, Word will search for and mark all occurrences of that authority that precisely match the short citation you have created. However, Word will not recognize or mark any short forms that do not precisely match the short citation you have created (such as “id.”).
  3. Review
    1. What it is: in this step, you review the citations that Best Authority found in its scan of your document.
    2. How it works: in Review mode, Best Authority displays a review pane on the left side of the screen. Citations are organized by the category in which they will appear in the TOC (cases, statutes, etc.). In the document, citations are highlighted with different colors for long citations; short citations; unmarked or suppressed citations (citations that will not be included in the TOA for a variety of reasons [e.g., a citation that appears in a quotation]); suspects (items that appear to be citations, but Best Authority wasn’t sure); and references (citations to factual materials, such as transcripts, that are excluded from the TOA). When you select a citation in the review pane, a green outline appears around the corresponding citation in the document; conversely, when you click on a citation in your document, a green outline appears and the corresponding citation is selected in the review pane.
       
      This step is where you will fix some incorrect citations. If a citation is incorrect in a manner that has prevented Best Authority from marking and categorizing it, you can correct the citation in your document at this time. After completing the Review step, you must repeat the “Scan” step for the corrections to be incorporated in the TOA.

      However, in Best Authority Light, many types of citation errors cannot be corrected at this step. Instead, the only way to correct these errors is to note them (the product training video shows the errors being noted on a printout of the draft TOA), then manually make the corrections on the final TOA in the “Edit” step. Examples of errors that must be manually corrected in the “Edit” step include: (1) text incorrectly marked as a citation (must be manually deleted in the “Edit” step); and (2) a section number in isolation (e.g., “§739(d)” instead of “Cal. Code Civ. Pro. §739(d)”; in the “Edit” step, “§739(d)” must be manually pasted into the “Statutes” category, and “Cal. Code Civ. Pro.” must be typed in before the section number). According to Levit & James, Inc. (the program’s creator), the Best Authority Premium Edition eliminates the cumbersome process of noting changes and then making them later during the “Edit” step.

    3. Comparison to native TOA creation: most changes to how and where you want a TOA entry to appear should be made when you initially mark a citation for inclusion in the TOA. At any time, you can edit or format a TOA entry; add or change a citation category for a TOA; or delete a TOA entry by following these instructions on the Microsoft Office website.
  4. Build
    1. What it is: in this step, Best Authority builds the “finished” TOA. However, the TOA is not actually finished because, as explained above, you may still have to make some TOA edits manually in Step 5.
    2. How it works: This step does not require any user input.
    3. Comparison to native TOA creation: you can insert a TOA at any time by following the steps to insert a TOA (as described above). To update the TOA at any time, place the cursor anywhere in the TOA (the TOA background will turn grey to indicate that it has been selected) and choose “Update Table.”
  5. Edit
    1. What it is: in this step, you can manually make any changes to the TOA that weren’t made during the Review step.
    2. How it works: if you make changes to your brief after you have manually edited the TOA that Best Authority has created, and those changes require you to repeat the “Build” step, the manual edits will be lost when you rebuild the TOA.
    3. Comparison to native TOA creation: most changes to how and where you want a TOA entry to appear should be made when you initially mark a citation for inclusion in the TOA. Any changes you make manually to the TOA will be lost if you subsequently use the “Update Table” option.

    Pricing and Support
    There are two versions of Best Authority. The Light Edition, at $225 “per litigator,” is targeted at small firms or firms with infrequent, short, or simple TOA needs. It does not include the network administration features of the Premium Edition (which starts at $360 per litigator, with volume discounts available) or, as noted above, the ability to make permanent edits to the TOA at the “Build” step (which Levit & James considers an advanced feature). The license allows each litigator to install Best Authority on an unlimited number of computers, which is helpful if you have a desktop computer at the office and a laptop for travel and home use. You can get a free trial by using the “Request an Evaluation” link on the Best Authority website; you can also get a comprehensive overview of how the software works by viewing the 45-minute Light Edition training video.

    In addition to in-program help, a Best Authority user guide and quick reference card are available at the Best Authority website. If you want more help, the $45 annual per litigator “software subscription service,” (SSS) will get you unlimited US-based email and phone support weekdays 9 a.m.–6 p.m. EST; a “courtesy level” of phone support is available if you have an expired SSS.

    The Bottom Line

    Best Authority’s primary benefit is that it automatically finds, marks, and categorizes citations. Another significant benefit is its ability to identify “suspects,” thus drawing your attention to citations that in some instances are incorrect in your document. Some options in the “Startup” step can help you avoid errors in your TOA (for example, you can set the program to omit pin cites from TOA entries, even though they appear in the text of your document).

    However, during the Review stage, it’s still up to you to ensure that all citations have been marked; are in correct form; and are correctly categorized. Best Authority does not tell you how to fix a citation that is so “broken” that Best Authority could not classify it for TOA purposes. Moreover, the fact that a Best Authority Light user can’t fix all types of individual citation errors during the Review stage, but must note changes that must be made and later make them manually, is a significant drawback because any changes made manually during the “Edit” stage will be lost if you have to rebuild the TOA after you have edited it. By contrast, with Word’s native TOA feature, any adjustments to a long form citation that you make in the “mark citation” dialog are retained even if you update the TOA. Additionally (and this is more of a personal preference), when I know a citation will differ from a TOA entry, I would rather make the necessary adjustments early in the TOA-creation process than at the end.

    Finally, don’t expect Best Authority to ensure that all your citations comply with the Bluebook (or any other citation manual): that’s simply not its job (so, for example, it won’t tell you that “Apex Insurance Company” in a citation should be “Apex Ins. Co.”). Moreover, if you want a TOA entry to vary from the brief text (for example, if “Apex Insurance Company” is properly spelled out in full in your brief because it appears in a textual sentence, but you want it to appear as “Apex Ins. Co.” in the TOA), you must manually make that change in the “Edit” step.

WestlawNext and Related Documents: how to ensure you’re getting what you paid for

Written by Lisa Solomon on May 1st, 2013 · No Comments


I’m a fan of WestlawNext’s Related Documents plan. When you’re searching within a database covered by your WestlawNext subscription, the Related Documents plan allows you to click on any of the documents you see listed on the right side of your search results screen without incurring an out-of-plan charge (without Related Documents, you’d get an out-of-plan warning screen). Only the “first click” is free: while you can browse through the table of contents of any analytical source you’ve linked to at no cost, if you view any other section of the source from the table of contents, it will be considered out-of-plan (you’ll get a warning screen and can then choose to cancel or continue).

However, as I recently discovered, Related Documents is not accessible from within the highly-touted WestlawNext iOS app. (To the best of my knowledge, it’s not accessible from within the Android, Windows Phone or Blackberry apps, either.) It’s also not available from within the WestlawNext mobile optimized website (m.next.westlaw.com).

However, there is a work-around: simply access the full WestlawNext website (http://next.westlaw.com) within your mobile browser. While the full WestlawNext site is likely hard to use on cell phone screens, it’s perfectly usable on a tablet.

There is one caveat. One reason I like Related Documents so much is that it also allows you to use ResultsPlus on “Classic” Westlaw. ResultsPlus is similar to Related Documents, but includes only 300 secondary sources, as compared to 5,000+ sources in Recommended Documents. I still use Results Plus because the Related Documents display is limited to (what the WestlawNext algorithm considers to be) the three most relevant secondary source documents, along with the three most relevant briefs and three most relevant trial court documents (a category that includes pleadings, motions, memoranda & affidavits; transcripts; filings; depositions and discovery; verdicts & settlements; proposed orders, agreements and settlements; jury instructions; and expert materials), while ResultsPlus returns many more secondary source links. However, I was not able to access Classic Westlaw on my iPad in either Chrome for iOS or Safari. Therefore, ResultsPlus remains inaccessible for the mobile user.

Thomson Reuters’ Firm Central doesn’t measure up to its small law practice management competition

Written by Lisa Solomon on January 21st, 2013 · 4 Comments


At a briefing held at its Eagan, Minnesota headquarters last week, Thomson Reuters announced (among other things) the launch of Firm Central, its new cloud-based practice management tool targeted at 1–10 lawyer firms. The company will officially launch Firm Central at LegalTech New York later this month, and the product will be available to customers in February.

Thomson Reuters is playing catch-up with Firm Central

West Publishing (which Thomson bought in 1996) began indexing American law via the Key Number system in the late nineteenth century. Studies show that West headnotes (organized in the Key Number system) provide lawyers with more value than the editorial enhancements added by LexisNexis (West’s/Westlaw’s/WestlawNext’s only real competitor). Thomson Reuters wisely leveraged the value of its indexing system when it developed the WestlawNext search algorithm. As a result of Thomson Reuters’ strategic use of its unique content, WestlawNext is the benchmark against which other legal research products—premium (LexisNexis and Bloomberg Law), low-cost (Fastcase, among others) and free (Google Scholar)—are measured.

With Firm Central, Thomson Reuters is in a vastly different position. The much younger, more nimble Clio and RocketMatter launched in 2008, and MyCase launched in 2010. Even fellow behemoth LexisNexis got the jump on Thomson Reuters, taking its Firm Manager out of public beta in early 2011.

Firm Central features

At launch, Firm Central will contain three primary practice management components: (1) a matter manager that allows users to associate documents, e-mails and contacts with matters; (2) a time and billing module; and (3) calendaring functionality.

The matter manager

When a user sets up a new matter in Firm Central, the application automatically creates folders for that matter within Windows Explorer (within the Firm Central folder), Outlook and WestlawNext. To load an email or document into Firm Central, simply drag and drop it into the Firm Central matter folder.

Once a document or e-mail has been added into Firm Central, it can be viewed within the application’s document viewer. For all Firm Central users, citations within documents and e-mails accessed in the viewer are linked to the cited material in WestlawNext and, if there is negative history, flagged with the applicable KeyCite flag. Firm Central users who also subscribe to WestlawNext will be able to click the citation link to view the cited material and the KeyCite flag to view the to the full KeyCite result (Thomson Reuters has not yet decided what access will be provided to Westlaw Classic subscribers and to users who do not subscribe to either WestlawNext or Westlaw Classic). Users can also initiate WestlawNext research sessions from within Firm Central (i.e., without having to login separately to WestlawNext). Documents saved to a matter folder within WestlawNext are automatically associated with the matter in Firm Central.

Documents and e-mails cannot be modified in the Firm Central document viewer. However, the original documents and e-mails can be opened, viewed and modified in their native applications.

It is important to understand that Firm Central is a completely hosted solution that does not automatically create locally-stored versions of documents and e-mails that are saved within the user’s Firm Central folder. This presents a problem if internet connectivity is lost. However, the problem can be solved by using an automatic backup program such as Second Copy to save local copies of all Firm Central documents.

Time and billing

Firm Central’s time and billing module is fairly standard. Features include:

  • a built-in timer
  • preloaded ABA billing codes
  • hourly, flat-rate, and retainer billing options
  • billing by client, matter, activity, and firm member
  • one-click invoicing in Legal Data Exchange (LEDES) format
  • history that speeds up client-conflict checks
  • trust account management
  • payment processing
  • a desktop widget that enables time entry even when the user is offline
  • an Outlook plugin (compatible with Outlook 2007 and 2010 for Windows only) that allows users to create new time entries as appointments in the Outlook calendar and convert emails or appointments to time entries

Thomson Reuters didn’t develop Firm Central’s time and billing module. Instead, Firm Central uses a third-party application developed by eBillity. Although users can subscribe to Firm Central without subscribing to the time and billing module, in my view timekeeping and billing functions are critical to enable the user to benefit from the efficiencies that practice management systems are designed to provide.

Calendaring

Users will have the option of handling calendaring through Firm Central’s integration with Outlook or using Firm Central’s native calendar. However, the time capture methods described above in connection with the Outlook plugin will not work with the native calendar. Additionally, no other calendar integrations (such as integration with Google Calendar) are currently planned.

The Firm Central home page

Firm Central home screen
Click on image to view larger

The three-column layout of Firm Central’s home page will be familiar to WestlawNext users. At the top of the left-hand column are notifications concerning all recent Firm Central activity by firm members. Underneath the notifications is a News & Insight feed that contains brief summaries of litigation-related news.

The top of the center column displays the user’s recent Firm Central activity. Underneath the Firm Central activity is a WestlawNext search box (along with the option to change jurisdictions), and underneath that is a list of the user’s most recent WestlawNext activity.

At the top of the right-hand column is a simple user-specific task list. The task list does not include due dates (unless the due date is included in the name of the task). This means that tasks can’t be searched by due date. Underneath the task list is a link to the time and billing module, which is discussed in more detail above. The bottom of the right-hand column displays the user’s recent activity in Westlaw Form Builder, an existing Thomson Reuters document automation product to which users must subscribe separately. (Prices for Form Builder plans vary by state and practice area, and start at $69/month.)

Finally, in the top right-hand corner of the page is a search box. Users can search the content of all documents and e-mails within Firm Central using natural language or Boolean search, and search results can be filtered by type (contact, e-mail, document, etc.).

How Firm Central stacks up against the competition

Firm Central’s feature set at launch is weak compared to the features offered by its main competitors:

ClioRocketMatterMyCaseFirm Central
Client portalyescoming Q1/Q2 2013yesplanned
Document storageunlimitedunlimitedunlimited10 GB per firm + 2 GB per user (option to purchase additional storage)
Document automationincludedincludedincludedvia Form Builder, starting at $69 per month
Tasksshared, matter-level task list

link tasks to matters

assign tasks to other users
link tasks to matters

assign tasks to other users

prioritize tasks

tag tasks to assemble a Getting Things Done System
link tasks to matters

assign tasks to other users

prioritize tasks
individual task list

tasks cannot be linked to matters or assigned to other users
Document versioningyesnoyesno
E-mail integrationuser forwards incoming, and copies outgoing, e-mails from any e-mail program to Clio's matter-specific and/or global maildropsvia IMAP (details)user forwards incoming, and copies outgoing, e-mails from any e-mail program to MyCase; e-mails must then be manually associated with matters Outlook
Other integrationsOutlook contacts, calendar and tasks

Google Calendar and Google Contacts sync

Box

Dropbox

Chrometa

DirectLaw

ZenCash

Quickbooks
Dropbox

Evernote

Skype

Google Calendar

Quickbooks
Google Calendar sync (Google Contacts sync under development)

Outlook contacts and calendar

Quickbooks
CaseLogistix (e-discovery platform for search, review and document coding) (planned)

Case Notebook (case analysis software to organize, analyze, and collaborate) (planned)

Quickbooks
Searchglobal searchglobal intelligent search (autocomplete)

tagging
global search

tagging
global search

Boolean search available

search results can be filtered by type
Online bill paymentcredit card processing via PayPal,* LawPay or LawCharge coming Q1/Q2 2013 (details pending)credit card processing via PayPros, Inc., Authorize.net or PayPal Pro*credit card processing via PayPal*
Support hours8 am - 8 pm ET, M-F9 am - 8 pm ET, M-FHours not listed on website24/7/365
This chart is intended to highlight the major differences between Firm Central and its major competitors; it does not address all features of all products.

*Because PayPal does not provide an option to have client funds deposited into a trust account while transaction fees are debited from an operating account, this may create ethics issues when accepting credit card payments for unearned fees.

Pricing

Although Thomson Reuters did not announce a price for Firm Central, the company says pricing (including the cost of the optional time and billing module) will be competitive with other cloud-based practice management products, which generally cost $30–$50 a month per user. To encourage Firm Central users to subscribe to WestlawNext (and vice versa), Thomson Reuters will offer package discounts. Additionally, each Thomson Reuters customer will have a single assigned sales representative for both WestlawNext and Firm Central.

UPDATE 1/28/13 11:30 a.m.: According to the newly-launched Firm Central website, Firm Central will cost $35/month per user, and the time and billing module (which I consider to be critical to any practice management system) will cost $25/month per user.

Analysis: the limited benefits provided by Firm Central’s integration with other Thomson Reuters products don’t outweigh its shortcomings

At the Eagan briefing, Thomson Reuters explained that its goal is to “evolv[e] from a content business to a true solutions organization [by] integrating [its] core legal information with software and solutions in a way that has a positive, and productive, effect on [its] customers’ workflow.” However, in my view, integrating WestlawNext into a practice management system provides limited benefits. I concede that there is some value in the KeyCite flags that Firm Central automatically applies to citations that appear in documents viewed in the application’s own document viewer (the value is particularly great for Firm Central users who don’t otherwise have access to a reliable citator because they don’t subscribe to WestlawNext, Westlaw Classic or LexisNexis). However, I don’t find it time-consuming log on to WestlawNext to retrieve and/or KeyCite a source cited in a document (even if I have to retype a citation that appears in a pdf document). Similarly, it’s not onerous to open a browser tab and log on to WestlawNext to search or to view my recent search history. Moreover, because citations are flagged and linked within the Firm Central document viewer, but documents can’t be edited within the viewer, displaying documents in the viewer actually adds a step to the user’s workflow, rather than streamlining it.

Firm Central’s integration with Form Builder will be helpful only to those lawyers who subscribe to it. The primary benefits of Form Builder over other document automation programs are: (1) Form Builder contains forms from well-known, highly respected sources and authors (such as McKinney’s New York Forms); and (2) Form Builder users get free access within WestlawNext to any authority (including statutes, codes, and relevant analytical material) cited in a Form Builder document or its commentary. As indicated in the chart above, although Clio, Rocketmatter and MyCase don’t offer integration with form books, all offer automated document assembly using the user’s own templates. The absence of that kind of document assembly tool is a significant drawback for Firm Central.

While the WestlawNext and Form Builder integrations arguably have some value to some Firm Central users, the News & Insight integration will provide little, if any, value to most users. The News & Insight feed (which cannot be hidden) is not customizable by practice area or jurisdiction. In my view, including a News & Insight feed (which is, after all, freely available online to anyone who wants to subscribe to it in an RSS reader) takes Thomson Reuters’ goal of integrating its various products too far: a practice management system should focus on management of the firm’s matters, not serve as a vehicle to distract users with information that is most likely not relevant to their practices.

Like its main competitors, Firm Central offers global search. Although the ability to apply Boolean search to documents within Firm Central theoretically brings the same benefits that Boolean search brings to legal research, in practice that benefit should be negligible because: (1) a firm’s own documents are a much more limited haystack in which to search than primary law materials are; and (2) a firm’s documents that are identified by search are more likely to be familiar to the searcher than the results of a primary law search, making it easier to choose relevant documents from a broader results set. Additionally, while search results within Firm Central can be filtered by type of document, that’s not a significant competitive benefit because Clio, RocketMatter and MyCase separate search results by document type.

The two most significant drawbacks of Firm Central are its task list and e-mail integration. While the Firm Central team stressed its goal of making the product easy to use, the simple, user-specific task list is woefully inadequate for any professional. With respect to e-mail, while Thomson Reuters found that 70—80% of Firm Central’s target market uses Outlook for e-mail, for the significant minority of small firms that don’t use Outlook, Firm Central isn’t even an option.

The unavailability of online bill payment via a merchant processor that can debit fees from an operating account means that Firm Central is simply not an option for yet another group of firms—those that want to accept credit card payments for unearned fees.

A client portal that enables clients to access their records or check case status at any time offers the benefit of convenience and saves costs by eliminating the need for staff to respond to client requests for information. Client portals also offer a secure way to share documents with clients (and vice versa). Because Thomson Reuters plans to add a client portal to Firm Central (although it’s unclear when that will happen), the absence of a client portal at launch isn’t a dealbreaker.

The one area in which Firm Central should have a clear advantage over the competition is the availability of live support: while Clio and RocketMatter offer live support during what can be termed “extended business hours,” Firm Central support will be available 24/7/365. On the other hand, one reason to use a practice management system is to become more efficient, which should presumably reduce the need to work outside of extended business hours.

The bottom line: although Firm Central’s pricing is competitive, the product itself isn’t.

This review is based on information Thomson Reuters provided at the Eagan briefing; a more detailed demo provided by Ben Vickers, Director of Product Marketing for Firm Central; Laura Zastrow, Firm Central’s Senior Product Developer; Brian Mismash, Director of Product Strategy for Firm Central; and Cecile Schauer, VP of Small Law Product Marketing; and additional clarification by Vickers and Zastro.

Thomson Reuters paid travel expenses for many of the journalists and bloggers who attended the Eagan briefing, including me. I am also featured in customer testimonials for WestlawNext. My previous posts about WestlawNext are here. For more on Firm Central (and the other products Thomson Reuters announced last week), visit Law Technology News (another article here), Robert Ambrogi’s LawSites, 3 Geeks and a Law Blog, jasnwilsn.com, the ABA’s GPSolo eReport and Dewey B. Strategic.

OSB Professional Liability Fund Gives Bad Advice About Working With Contract Lawyers

Written by Lisa Solomon on October 15th, 2012 · 1 Comment


In an article in In Brief entitled Contract Lawyers: Independent Contractors or Employees?, authors Lisa C. Brown and Jim W. Vogele give some excellent advice about steps a firm can take to ensure that a lawyer it hires as a freelance attorney is, in fact, an independent contractor, rather than an employee. However, a firm following Brown and Vogele’s instruction that “[t]he firm must bill for the work of the contractor as a vendor, not as an employee” may find itself in ethical hot water.

No Oregon ethics opinion directly addresses the numerous ethical issues that arise when a firm hires a freelance lawyer. However, Oregon’s Rules of Professional Conduct are similar to the ABA’s Model Rules of Professional Conduct. As I’ve previously explained, in Formal Ops. 00-420 and 08-451, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that: (1) a law firm that engages a freelance lawyer may add a surcharge to the fee it pays to the freelance lawyer, provided the total charge represents a reasonable fee for the services provided to the client; and (2) the hiring firm is not obligated to inform the client how much the firm is paying the freelance lawyer. However, no markup is permitted if the firm decides to pass the cost of hiring a contract lawyer through to the client as a disbursement: a markup is permitted only if the freelance lawyer’s services are billed as a legal fee.

Returning to Brown and Vogele’s advice, in my experience, law firm bills generally classify billing entries as either fees or disbursements. Further, charges from vendors are reflected on the bill as disbursements, not as fees. Thus, a firm that bills for the work of a freelance lawyer as a vendor (as Brown and Vogele advise) is likely to bill for the freelance lawyer’s work in the “disbursements” portion of the bill. Under those circumstances, the firm may not mark up the freelance lawyer’s fee.

Furthermore, as Brown and Vogele note, the various state and federal agencies that audit working relationships to determine whether a worker is an independent contractor or an employee use different tests, most of which look to multiple factors. Brief analysis shows that none of the tests Brown and Vogele reference look to the manner in which a worker’s services are billed to clients. See Employer’s Supplemental Tax Guide (IRS); State Agency Criteria for Independent Contractors (chart).

Thus, because: (1) a firm that bills for a freelance lawyer’s work in the same manner it bills for work performed by other vendors (i.e., as a disbursement) may not mark up the freelance lawyer’s fee; and (2) the manner in which a worker’s services are billed to clients is irrelevant to whether a freelance lawyer is properly classified as an employer or independent contractor, Oregon lawyers should not follow Brown and Vogele’s advice to bill for a freelance lawyer’s work in the same manner it bills for work performed by other vendors.

ABA Adopts Model Rules Comments Concerning Outsourcing

Written by Lisa Solomon on August 6th, 2012 · 4 Comments


As the ABA Journal reports, today, the ABA’s House of Delegates adopted Resolution 105C, which amends the comments to ABA Model Rules 1.1, 5.3 and 5.5 to clarify lawyers’ obligations when outsourcing work, whether domestically or internationally.

The resolution’s adoption caps a process that began in November 2010, when the ABA’s Commission on Ethics 20/20 issued a discussion draft of proposed changes to the Model Rules of Professional Conduct (or, more accurately, the comments to the Model Rules) as they relate to domestic and international outsourcing. As I explained in my analysis of the discussion draft, the proposed changes didn’t introduce anything new or surprising; rather, they primarily elevate many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments.

Selected Highlights of the New Model Rules Comments Concerning Outsourcing

The House of Delegates adopted the following new comment to Model Rule 1.1 (competence):

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

wwwDisclosure and Client Consent

In its report to the House of Delegates, the Commission explained that “consent will typically be required, and will almost always be advisable” when outsourcing, although it “may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information.” The requirement to obtain the client’s informed consent to outsourcing in most cases is stronger than that imposed by ABA Formal Op. 08-451, which required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm.

wwwSupervision of nonfirm lawyers and nonlawyers outside the firm

The most recent draft resolution concerning outsourcing (issued in February 2012) contained the following sentence at the end of comment [6]: “When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should also reasonably believe that such services meet the standard of competence under this Rule.” This sentence was omitted from the version submitted to, and adopted by, the House of Delegates, no doubt in response to a few comments the Commission received in response to the February 2012 draft resolution objecting to it.1

The omission of the last sentence from comment [6] is significant because the Commission previously explained that the last sentence required outsourcing lawyers to “conclude that the services that the nonlawyer [sic; should read "nonfirm lawyer"] actually performed after being retained were performed competently.” Although the new comment [3] to Rule 5.3 now explicitly requires a lawyer who uses nonlawyers outside a firm to assist the lawyer in rendering legal services to “make reasonable effort to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations” (which, of course, include the duty to provide competent representation), that comment does not impose on the outsourcing lawyer an obligation to conclude that a nonfirm lawyer’s work meets the standard of competence required under Rule 1.1.

To put this distinction into context with a real-life example, I am admitted in New York, EDNY, SDNY, the Second Circuit and the U.S. Supreme Court. When a New York lawyer retains me to provide legal research and/or writing services, under comment [6] to Rule 1.1 (as adopted), the lawyer does not have a continuing obligation to conclude that any services I actually perform after being retained are performed competently. This means that, if (for the sake of argument only) I ever perform services for a New York lawyer in an incompetent manner, any failure of the hiring attorney to discover that my work does not meet the standard of competence under Rule 1.1 will not constitute an ethics violation.

The result is different when an outsourcing lawyer hires a freelance lawyer who is not admitted in the same jurisdiction as the outsourcing lawyer. For example, a Utah lawyer recently retained me to conduct research for, and draft, a brief to the Utah Supreme Court. Because I am not admitted in Utah, I am considered a “nonlawyer” in that state. Under the new comment [3] to Rule 5.3, if (again, for the sake of argument only) I do not perform the work competently, any failure by the outsourcing lawyer to make reasonable efforts to ensure that I have performed in a manner consistent with the lawyer’s obligation to provide competent representation may constitute an ethics violation.

None of this should discourage lawyers from outsourcing to out-of-state freelance lawyers. Remember, adequate supervision over a non-lawyer is judged on a reasonableness standard. As the new comment [3] to Rule 5.3 explains, the extent of supervision required “depend[s] on the circumstances, including the education, experience and reputation of the nonlawyer [and] the nature of the services involved….” This means an out-of-state junior lawyer with little or no experience in the substantive practice area and no track record to speak of will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area and an extensive track record. It also means that, while—as comment [6] to Rule 1.1 makes clear—a hiring attorney should do diligence when hiring any freelance lawyer, sufficient due diligence is particularly important when hiring an out-of-state freelance lawyer.

The Commission’s Report to the House of Delegates Supports Domestic Outsourcing

As I noted in my analysis of the discussion draft, although, in the introduction to its Draft Report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing by solos and small firms, the Draft Report went on to discuss the benefits of outsourcing. The Commission maintained that position throughout the revision process. In the report it submitted to the House of Delegates, the Commission observed:

Lawyers have found that the same technology-driven efficiencies that have led to an increase in outsourcing throughout the global economy are also making outsourcing an appealing option within the legal profession for certain work. In particular, lawyers have found that, if they exercise proper care in the selection of a provider, work can be completed with greater speed and lower costs without sacrificing quality. These efficiencies offer opportunities for solo practitioners and small and medium-sized U.S. law firms, allowing them to better compete for large matters without fear that they will lack adequate resources to perform the legal work involved. Also, by reducing the cost of legal services, outsourcing can improve access to justice by making legal services more affordable

….The Commission’s research indicates that lawyers still tend to outsource legal and law-related work domestically more often than they outsource work internationally. In fact, information reviewed by the Commission indicates that, more recently, the outsourcing industry is responding to client demand for greater availability of on-shore operations.

Conclusion

Although the additional comments to the Model Rules aren’t, in and of themselves, revolutionary, by amending the Model Rules comments to discuss lawyers’ obligations when outsourcing, side-by-side with their obligations when working with lawyers and other personnel inside a firm, the ABA has acknowledged the importance of outsourcing to the practice of law, both today and in the future. That is revolutionary.


1Not surprisingly, the Attorneys’ Liability Assurance Society objected on the ground that, in its view, the sentence effectively requires lawyers to guarantee the quality of outsourced work.

The objection of Prof. Andrew Perlman, the Ethics 20/20 Reporter, focused on the sentence’s impact on lawyers or firms that “refer” work to non-firm lawyers for a variety of reasons, including to obtain an opinion from local or specialized counsel on a matter in which the “referring” lawyer lacks expertise. The objection’s use of the word “referring” demonstrates Perlman’s fundamental misunderstanding of the term “outsourcing,” the hallmark of which is the hiring lawyer’s ability to competently supervise the work performed by the nonfirm lawyer. Where a matter requires specialized or local expertise, it would be more appropriate to enter into a co-counsel relationship (with each firm having a direct attorney/client relationship with, and ethical obligations to, the client) than an outsourcing relationship.