Written by Lisa Solomon on January 31st, 2015 · 5 Comments
Freelance lawyers come in different flavors. Some, like me, are generalists, helping lawyers nationwide in a variety of practice areas. Some help lawyers in different practice areas, but work with lawyers only in states where they themselves are admitted to practice law. Some, like Illinois lawyer Kathryn Thompson, who recently launched ER for Lawyers, work with lawyers nationwide but focus on a particular area of expertise. For Thompson, that area is legal ethics: the “ER” stands for “ethics research.” The problem is, some of the services that ER for Lawyers provides may constitute the unauthorized practice of law (UPL).
A brief review of the ethics of using freelance lawyers
The leading ethics opinion concerning working with freelance lawyers is ABA Formal Op. 08-451. Here is the most important portion of that opinion, for purposes of this discussion:
There is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by Rule 1.1.…
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…Rules 5.1 and 5.3 impose additional obligations on lawyers who have ‘direct supervisory authority’ over other lawyers and nonlawyers. Rule 5.1(b) states that ‘[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.’ Correlatively, Rule 5.3(b) requires lawyers who employ, retain, or associate with nonlawyers to ‘make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.’ These provisions apply regardless of whether the other lawyer or the nonlawyer is directly affiliated with the supervising lawyer’s firm.
The challenge for an outsourcing lawyer is, therefore, to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately.
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Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the lawyer remains responsible for the work being performed and that the individual is not held out as being a duly admitted lawyer.
Although some state and local bar associations ethics opinions concerning freelance lawyering depart from Op. 08-451 in certain respects (such as the circumstances under which the hiring attorney must reveal, and obtain client consent to, the use of a freelance attorney), all recognize that the hallmark of an outsourcing relationship between a hiring attorney and a freelance attorney is the hiring attorney’s ability to competently supervise the work performed by the freelance attorney.
In 2012, the ABA adopted Comment  to Model Rule 1.1 (competence). That comment states, in relevant part:
 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.
The services ER for Lawyers offers
ER for Lawyers offers two kind of services. First, it offers its services to lawyers “who concentrate their practices in ethics and professional responsibility matters, including in-house and private ethics counsel and lawyers who prosecute or defend other lawyers in disciplinary and civil proceedings.” These services consonant with the ethics rules governing freelance lawyers.
ER for Lawyers also provides what it characterizes as “a form of ‘self-help‘ to lawyers:
ER for Lawyers assists attorneys in identifying and researching the ethics issues relevant to their particular fact pattern. Our work product is intended to provide a form of self-help to lawyers and does not advocate a particular course of conduct. Thus, ER for Lawyers does not advise attorneys regarding the use or legal effect of the research, recommend a specific course of action to follow or express an opinion on whether a lawyer’s described or alleged conduct constitutes a violation of a state’s rules of professional conduct.
Since ER for Lawyers cannot advise you as to whether an ethics breach exists or offer an opinion about available remedies, a hiring lawyer who finds himself or herself unable to understand, assimilate or apply the information set forth in the research report should consider hiring a lawyer in his or her jurisdiction who specializes in ethics and professional responsibility.
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The information provided by ER for Lawyers is intended as a starting point to help lawyers decide whether an ethics issue warrants further consideration or action. The research report may include all the information you need to draw a conclusion, make a decision, or put your mind to rest about an ethics issue. On the other hand, it may raise still more unresolved issues. It is your responsibility to decide how to use the information we provide. You may decide to take some course of action to forestall an ethics violation, request additional research, or hire an ethics attorney in your jurisdiction. You may decide to take no action whatsoever. How you decide to use the research is ultimately up to your discretion.
I’ll call these services “direct services.” The mission of ER for Lawyers is
to be an ‘ethics lifeline’ for lawyers who need immediate or emergency assistance with legal ethics questions. The virtual ER provides lawyers facing ethics dilemmas with an affordable, convenient, on-demand alternative to hiring an attorney to represent them. By assisting lawyers in identifying, researching and analyzing ethics issues, ER for Lawyers provides lawyers with the resources necessary to make their own informed decisions about legal ethics matters.
The ER approach empowers lawyers to take proactive, self-help measures to resolve ethics dilemmas before they harm clients, tarnish their professional reputation, or ripen into claims and grievances. Since the purpose of the professional conduct rules is to protect the public, the ER business model is a win-win-win situation for clients, lawyers and the organized bar.
As a practical matter ER for Lawyers provides an economical option for lawyers who might otherwise avoid outside help or take no action whatsoever to address and resolve their ethics challenges. In situations when retaining a lawyer is unwarranted or impractical or too expensive, ER for Lawyers provides a middle ground for lawyers short of entering into a full-blown lawyer-client relationship to obtain ethics ‘advice.’
ER for Lawyers “usually delivers a research memo referred to as the ER Research Report at the conclusion of the research. However, [they] will tailor the end product to suit your budget and needs, whether it means rounding up a single ethics opinion in your jurisdiction or compiling a fifty-state survey.”
The ER for Lawyers website repeatedly reiterates that the company provides services to lawyers with only “some minimal, continuing degree of competence in ethics.” See also FAQS (“ER for Lawyers serves attorneys who possess every level of ethics expertise, [including] those with minimal ethics knowledge….” You can be an ER for Lawyers client if “[e]thics is outside your realm.”). At the same time, the website concedes that “the ‘law of lawyering’…is a whole area of “law” unto itself. And unless you concentrate in legal ethics and professional responsibility, it is not the one you normally ‘practice.'” And again: “[C]ompetence in ethics and professional responsibility matters sometimes requires specialized knowledge and expertise.”
What ER for Lawyers says about its provision of direct services, and why it’s problematic
Lawyers using the services of ER for Lawyers LLC are ultimately responsible for the use or non-use of any work product provided by us. It is the responsibility of the lawyer to properly supervise the work product and make a professional determination about the relevance, accuracy, completeness, adequacy, appropriateness, applicability and currency of the information provided.
(Emphasis supplied). From the FAQS:
Although ER for Lawyers is lawyer-owned and operated, and a licensed lawyer performs the research, we do not enter into a lawyer-client relationship with our clients or act in a representational capacity. Thus, the ER does not provide the hiring lawyer with an opinion or advice on how to proceed, advocate for the lawyer’s position, or engage in tactical or strategic discussions about the issues.
What we do provide is a comprehensive, neutral overview and analysis of the issues presented. It is the responsibility of the hiring lawyer to decide how to utilize the information provided by ER for Lawyers.
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At ER for Lawyers we do not represent or enter into a lawyer-client relationship with our clients, proffer an opinion or advice, or act as an advocate for our clients. What ER for Lawyers does provide is an objective, thorough examination and analysis of the issues presented, which is compiled into an ER Research Report.
With respect to the foundational requirement that a hiring attorney supervise the work of a freelance attorney, Thompson reasons:
It is now a widely accepted practice for lawyers to outsource or hire independent contractors to perform both legal and non-legal services. However, there is one important caveat to keep in mind when services are outsourced to out-of-state or foreign providers. Whether or not a contractor is a non-lawyer or a lawyer unlicensed in the hiring lawyer’s jurisdiction, the rules regulating the unauthorized practice of law (set forth in ABA Model Rule 5.5 and its state counterparts) require that the hiring attorney adequately supervise and oversee that contractor’s work. In fact, a research lawyer who is not licensed in the relevant foreign jurisdiction is considered a “non-lawyer” under the hiring lawyer’s ethics rules.
As a result of ABA Model Rule 5.5 limitations on multistate practice, so-called freelance lawyers who provide legal research (and/or writing) services to out-of-state attorneys generally do so as subcontractors working under the supervision of the foreign attorney. Thus, it is not necessary for a research lawyer to be licensed in the state where he or she provides services as long as the work is supervised by a lawyer who is licensed in the local jurisdiction.
That’s why ER for Lawyers requires that lawyers ‘supervise’ our work product—to ensure that we do not engage in the unauthorized practice of law and that you, the hiring lawyer, do not assist in the unauthorized practice of law. Under the terms of our professional services contract a hiring lawyer must certify that he or she will oversee and remain ultimately responsible for our work product.
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As noted above, whether or not a hiring lawyer is obligated to ‘supervise’ the work of a research lawyer pursuant to ABA Model Rule 5.5 is unclear. Rule 5.5 clearly envisions that the work being outsourced (and thus subject to supervision) is being undertaken for the benefit of the hiring lawyer’s client. And that is generally the case in the context of a lawyer outsourcing legal research services to an out-of-state lawyer. The same is not necessarily true with respect to ethics research, which is often commissioned to assist the lawyer in clarifying his or her own ethical obligations.
As you can see, the last two paragraphs above contradict each other. Moreover, Thompson’s attempt, in the second paragraph, to assuage the concerns of lawyers who do not concentrate in legal ethics but who wish to hire ER for Lawyers to provide direct services depends on an analytically questionable distinction between “legal” research and “ethics” research (remember, Thompson says elsewhere on the website that the “law of lawyering” is “a whole area of ‘law’ unto itself”).
The nub of the issue is this: there is no hiring attorney-freelance attorney relationship without a third party: the hiring attorney’s client, for whose benefit the hiring attorney retains the freelance attorney. Attorneys to whom ER for Lawyers provides direct services cannot “supervise” the provision of those services to themselves.
One way to demonstrate the problems with Thompson’s reasoning is through a hypothetical. Let’s assume that a California lawyer who practices commercial real estate is getting divorced. He wants to hire me (a freelance lawyer licensed only in New York) to perform legal research relating to child custody issues. He wants me to assist him in identifying and researching the ethics issues relevant to his particular fact pattern. He does not want me to advise him about the use or legal effect of the research, or recommend a specific course of action to follow. If I accepted that engagement, would I be engaging in the unauthorized practice of law in California? I submit that I would. Certainly, I could provide the services described in this paragraph to a New York commercial real estate lawyer, but in that case, I wouldn’t be acting as a freelance attorney; instead, I would be providing limited-scope representation (a/k/a unbundled legal services).
Thompson would presumably argue that the distinction between my hypothetical and the direct services that ER for Lawyers provides is that the California commercial real estate lawyer is not required to have any competence in California matrimonial law, whereas every licensed attorney who hires ER for Lawyers must have some minimal competence in legal ethics (presumably demonstrated by passing the MPRE). But that’s just it: “minimal competence” is not necessarily sufficient to supervise the work of a freelance lawyer in any practice area, to say nothing of legal ethics, an area of law that Thompson describes as a “zonkey,” a “one-of-a-kind hybrid of ethics rules, bar opinions, disciplinary findings, court rules, state and federal statutes, caselaw [and] moral decisionmaking.”
Furthermore, if the only thing necessary to avoid the conclusion that one is not engaging in UPL is to limit the engagement to researching the issues relevant to the client’s particular fact pattern and delivering a research memo in which the researcher refrains from advising clients regarding the use or legal effect of the research, recommending a specific course of action to follow or expressing an opinion on whether particular described conduct constitutes a violation of law, then any non-lawyer (whether a lawyer not licensed in the client’s state, or an individual who is not licensed in any state) should be able to provide the same services to any client (regardless of whether that client is himself or herself a lawyer).
Another concern about ER for Lawyers
ER for Lawyers LLC is not responsible or liable in any manner…in connection with our Services….
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Under no circumstances will ER for Lawyers LLC be responsible for any loss or damage…resulting from anyone’s use of our…Services….
NOTWITHSTANDING ANY DAMAGES USER MAY INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF ER FOR LAWYERS LLC AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID FOR THE PRODUCTS, SERVICES AND INFORMATION OR U.S. $1.
Preliminarily, in light of Thompson’s background, I’m certain that all services she provides through ER for Lawyers will meet the highest standards. Nevertheless, even the most knowledgeable and qualified professionals can make mistakes. These disclaimers—which at least raise the question of whether ER for Lawyers carries any malpractice/E&O insurance and, if so, what the policy limits (per claim and aggregate) are—affect all lawyers who hire ER for Lawyers. Hiring attorneys who hire ER for Lawyers to perform work on matters for their clients should be aware that, although their malpractice policy may cover work that a freelance lawyer performs for their clients (depending, of course, on the policy language), some industry commentators recommend that you hire only freelance attorneys who carry their own malpractice insurance.
Attorneys who hire ER for Lawyers to perform services in connection with an ethics issue relating to their own conduct are also impacted. While I have not researched the issue, I suspect that all states prohibit attorneys from limiting their potential malpractice liability in their retainer agreements. Thus, if ER for Lawyers is considered to be practicing law when performing direct services, this prohibition would invalidate ER for Lawyers’s liability disclaimers. However, even assuming that ER for Lawyers carries a malpractice policy, the policy may not cover claims arising out of UPL. In that case, any ultimate recovery would be limited to the assets of ER for Lawyers and (assuming that the LLC veil can pierced) Thompson’s own assets.
The practice of outsourcing substantive legal work to freelance attorneys is well established; indeed, the ABA itself has heralded the benefits of outsourcing on more than one occasion. As a result, the pool of highly-qualified lawyers who seek the intellectual stimulation, flexible work hours and reasonable income that a freelance lawyering practice provides continues to grow.
ER for Lawyers is an exciting newcomer to the field of freelance lawyering, and legal ethics practitioners are fortunate to have a highly-qualified freelance lawyer like Kathryn Thompson available to them. However, the company’s provision of direct services to lawyers outside Illinois raises a substantial issue concerning whether such services constitute UPL. I look forward to Thompson’s response to the issues raised in this post.
Written by Lisa Solomon on November 16th, 2014 · No Comments
Since I’m a New York solo practitioner, I shop for health insurance on the New York health insurance marketplace website at www.nystateofhealth.ny.gov. Based on a number of news reports (including this one in the New Yorker), I was all ready yesterday (November 15) to begin the open enrollment process. But when I logged into my marketplace account, I saw this warning:
Confused, I called the customer service number. The representative told me that I would have to wait a day to begin the open enrollment process. Only when I checked the NY State of Health Twitter Feed did I discover all the relevant facts:
So, in fact, neither I (as a returning enrollee) nor anyone else could actually enroll for 2015 yesterday. But that’s not the message the marketplace sent out before—and even on—November 15. Instead, again and again, the marketplace sent out a grossly oversimplified message that omitted material facts. Here’s the news crawler on the marketplace’s home page (captured yesterday):
And from the New York State of Health Twitter feed:
You get the idea.
The Lesson for Legal Writers: Don’t Omit Material Facts
Clarity is one of the primary hallmarks of good legal writing. One way to achieve clarity is to focus on material facts and omit immaterial ones. However, to omit immaterial facts, you must understand what facts are material to the reader.
The consequence of the New York health insurance marketplace’s repeated omission of material facts wasn’t fatal: my enrollment was merely delayed, and my annoyance with how the marketplace got the message out this year won’t prevent me from using it next year.
But the consequences of omitting material facts from a brief can be fatal. If your adversary picks up on the omission and points it out, the court will look askance at your legal analysis because you’ve damaged your ethos. Even if your adversary doesn’t call you on the omission, the court will be left with unanswered questions. And even assuming the answers to those questions are somewhere in the record, judges and clerks are too busy to search for those answers.
Written by Lisa Solomon on September 3rd, 2014 · No Comments
For the last few years, I’ve been particularly interested in what the shift to paperless courts—spurred by the ubiquity of electronic filing at the federal level and its expansion at the state level—means for legal writers. Through my CLE course, Pixel Persuasion: Legal Writing for the 21st Century, I’ve shared what I’ve learned about how to write more persuasive briefs designed to be read on-screen.
A few weeks ago, Judge Richard Wesley of the United States Court of Appeals for the Second Circuit shared some thoughts about his switch, and that of many of his colleagues on the bench, from reading paper briefs to reading briefs on computer and iPad screens. Judge Wesley started reading briefs on a computer screen about six years ago. It took him two or three months to feel comfortable enough working with pdf documents before he was ready to take his laptop onto the bench. A few years later, he switched to reading briefs and other documents in an iPad. Many of his fellow judges now read documents on iPads as well.
Judge Wesley actively engages with the documents he reads in electronic format. He explained:
My secretary downloads all briefs and records. I review the files, add bookmarks, highlight sections, and add comments on them and highlight aspects of them. I also add comment boxes in which I list questions I want to ask about a particular section. Then I synchronize the changes with my hard drive in my chambers so the document no longer resides on my iPad…. Also, my clerks produce bench memos for me, which I mark up, and they also include hyperlinks to the cases referred to so that clicking on the link takes me right into Westlaw.
The active engagement Judge Wesley describes is the key to successfully switching from reading on paper to reading on screen. Although a number of studies have found that people who read on-screen tend to skim, resulting in decreased performance on some measures of reading comprehension, new research has confirmed that actively engaging with the text by annotating it helps improve reading comprehension.
Judge Wesley’s experience is far from unique; in fact, it may be the norm. When Robert Dubose, author of Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World, interviewed appellate judges around the country in 2010, he found that most read briefs exclusively on paper. By 2012, however, fewer than half of the judges he interviewed were reading exclusively on paper.
The practical implications of Judge Wesley’s observations and the research discussed above are twofold. First, the judiciary’s shift from reading briefs on paper to reading on-screen is proceeding apace. Indeed, although there will probably always be some holdouts, I believe that, in courts that use electronic filing, the vast majority of judges will be reading briefs primarily or exclusively on-screen within a few years. Second, regardless of: (1) the medium in which your briefs are consumed; and (2) the reading characteristics of those judges who are reading on-screen (i.e., skimmers v. deep readers), it’s important to learn how to leverage both technology and principles of document design and web usability to to maximize the persuasive impact of your briefs.
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.
Written by Lisa Solomon on April 4th, 2014 · No Comments
Sherpas 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)?
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.  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.
Consistent with both Op. 08-451 and Comment  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.”
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.
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  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”).
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.
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.
Written by Lisa Solomon on August 3rd, 2013 · 1 Comment
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.”
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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).
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.
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.
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):
 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
 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  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.
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 firstname.lastname@example.org.
1The Committee recommends replacing “assistants” with “assistance” in the rule’s title.
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:
- What it is: during this step, you set preferences for how Best Authority will process your document.
- 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.
- 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.
- 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.
- 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.
- 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.”).
- What it is: in this step, you review the citations that Best Authority found in its scan of your document.
- 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.
- 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.
- 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.
- How it works: This step does not require any user input.
- 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.”
- What it is: in this step, you can manually make any changes to the TOA that weren’t made during the Review step.
- 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.
- 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.
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).
Unfortunately, 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.) 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.