What is a freelance attorney?

Freelance attorneys are lawyers who work solely with other attorneys who want to outsource legal work on a project basis.  A freelance attorney is essentially a temporary attorney that provides a final written product, which the hiring law firm reviews, revises or approves, and signs.  Freelance attorneys provide services to law firms independently.  Law firms rely on freelance attorneys to assist during busy periods, to add specific expertise, and to lower fees for their clients.

What is the difference between a freelance attorney and a contract attorney?

Generally, a contract attorney is employed by a legal services agency to work on large-scale projects for an hourly wage paid by the agency.  A freelance attorney on the other hand, is an independent contractor that is hired directly by another attorney to work on a specific component of a case or transaction.

What are the ethical implications of hiring a freelance attorney? 

Although ethics rules vary by state, there are general considerations:

Confidentiality: When a law firm uses a freelance attorney, disclosure of confidential information may be necessary.  The duty of confidentiality extends to a freelance attorney working on a client’s matter.

Duty to Avoid Conflicts: The duty to avoid conflicts is an important consideration because freelance attorneys may work for multiple law firms and will have more possibility for conflicts of interest.  Freelance attorneys are thus required to maintain accurate records of their actual conflicts so they can properly clear conflicts for every matter.

Duty to Act Competently: The duty of competence resides with each attorney.  A freelance attorney may be used if he/she is reasonably believed to be competent, however, the hiring attorney retains the duty to supervise and ultimately approve of the freelance attorney’s work.

Billing the Client for a Freelance Attorney’s Time: This varies by state, but in many states a freelance attorney’s fees may be absorbed by the firm, passed through to the client as a cost, or billed as legal fees.

In California, and many other states, when a law firm uses a freelance attorney, the law firm can elect to bill the client in several different ways:

  1. not pass any of the cost to the client (absorb the cost);
  2. pass the cost to the client at the same rate the firm paid the freelance attorney;
  3. mark up the cost and pass the marked up cost to the client; or
  4. pass a flat fee cost to the client.

Each of these fee arrangements are ethical in California, assuming that the fee passed to the client is not otherwise unconscionable pursuant to California Rule of Professional Responsibility 4-200, and assuming the standard fee arrangement requirements set forth under California Business and Profession Code §§6147-6148 and 6068(m) have been satisfied.

California case law has found that the amount a law firm pays to a freelance attorney is irrelevant to whether a fee is unconscionable, and nothing in CRPR 4-200 suggests that the law firm’s profit margin is relevant to the issue of unconscionability.  Shaffer v. Superior Court (1995) 33 Cal. App. 4th 933; Bushman v. State Bar (1974) 11 Cal. 3d 558, 564; see also ABA Formal Ethics Opinion 2000-420.  If a firm chooses to pass a marked up rate to its client, according to the Los Angeles County Bar Association Professional Responsibility and Ethics Committee, it likely constitutes a “significant development” of the case and the arrangement should be disclosed to the client.  California Rule of Professional Responsibility 3-500; Bus. and Prof. Code §6068(m); see also Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 518.

What are the benefits of hiring a freelance attorney? 

Freelance attorneys essentially serve as “as needed” associates.  The primary reason to hire a freelance attorney is to assist with overflow work or research needs, or to allow the hiring attorney to have more free time. Outsourcing legal work to a freelance attorney is an easy, inexpensive, and ethical way to free up some time when you need it.

Saves you money: Hiring temporary interns is a time consuming short term solution to those times when you have an overflow of work.  Hiring an associate can be costly for solo practitioners and small law firms when you consider the added overhead (salary and benefits, malpractice insurance, social security taxes, and unemployment insurance).  It may become difficult to support an associate with a regular salary when the workflow decreases, but when you hire a freelance attorney, you pay only for the project that the freelance attorney completes.  A freelance attorney is essentially your “on-call” associate, without the employee status.

Earn more money: In California, a law firm that uses a freelance attorney can pass on the cost to its client with an added surcharge as long as the fee is not unconscionable (California Rule of Professional Responsibility 4-200) and as long as the requirements under the California Business and Professions code have been satisfied.

Save you time:   Outsourcing discrete work such as drafting complaints, discovery requests, responses to discovery requests, pre-trial motions and demand letters to a freelance attorney will save you the time you need in order to devote yourself to more important tasks and can free you up so that you can attain the work/life balance.

Do I have to obtain client consent prior to hiring a freelance attorney?

California Rule of Professional Conduct 3-500 states: “A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information, and copies of significant documents when necessary to keep the client so informed.”

California Business and Professions Code §6068(m) states that an attorney has a duty “[t]o respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.”

According to the State Bar of California Committee on Professional Responsibility and Conduct (“COPRAC”) Formal Opinion 2004-165, a lawyer must inform a client a that an outside lawyer has been hired if using the outside lawyer is a “significant development” in the representation.

COPRAC Opinion 1994-138 enumerates the factors used to determine whether a firm must disclose the outside attorney relationship, which include whether:

  1. responsibility for overseeing the client’s matter is being changed;
  2. the new attorney will be performing a significant portion or aspect of the work; or
  3. staffing of the matter has been changed from what was specifically represented to or agreed with the client.

COPRAC Opinion 2004-165 further elaborated on these factors in holding that the determination whether a firm must disclose the outside attorney relationship also depends on whether the client had a reasonable expectation under the circumstances that a law firm would use a contract lawyer.

San Diego County Bar Association Opinion 2007-1 further provides context by concluding that disclosure should not be limited to whether the service to be “outsourced” technically involves legal services, rather the duty to inform the client is determined by the client’s reasonable expectation as to who will perform those services.  Therefore, if the work to be performed by the outside service is within the client’s reasonable expectation, under the circumstances, that it will be performed by the attorney, then the client must be informed when the service is outsourced.  Because a “significant development” depends on specific facts, ethical rules and opinions suggest that firms inform clients when using outside attorneys beyond basic tasks like research and writing.

Some business clients include standard provisions in their retainer letters stating that a law firm cannot put a surcharge on a contract attorney’s hourly rate and that it must be passed as a cost.  If a client has such a requirement, then the law firm must disclose a potential freelance attorney relationship to the client and renegotiate the provision if the law firm plans to add a surcharge for a freelance attorney’s substantive legal work.  It is recommended that law firms and businesses distinguish between substantive, skilled legal work and unskilled tasks when deciding whether a surcharge is appropriate.  Most clients appreciate a law firm’s willingness to find creative solutions to delivering a high quality service and product at the lowest possible cost.

How am I able to pass on the cost of a freelance attorney to my client? 

In California, and many other states, when a law firm uses a freelance attorney, the law firm can elect to bill the client in several different ways:

  1. not pass any of the cost to the client (absorb the cost);
  2. pass the cost to the client at the same rate the firm paid the freelance attorney;
  3. mark up the cost and pass the marked up cost to the client; or
  4. pass a flat fee cost to the client.

Each of these fee arrangements are ethical in California, assuming that the fee passed to the client is not otherwise unconscionable pursuant to California Rule of Professional Responsibility 4-200, and assuming the standard fee arrangement requirements set forth under California Business and Profession Code §§6147-6148 and 6068(m) have been satisfied.

California case law has found that the amount a law firm pays to a freelance attorney is irrelevant to whether a fee is unconscionable, and nothing in CRPR 4-200 suggests that the law firm’s profit margin is relevant to the issue of unconscionability.  Shaffer v. Superior Court (1995) 33 Cal. App. 4th 933; Bushman v. State Bar (1974) 11 Cal. 3d 558, 564; see also ABA Formal Ethics Opinion 2000-420.  If a firm chooses to pass a marked up rate to its client, according to the Los Angeles County Bar Association Professional Responsibility and Ethics Committee, it likely constitutes a “significant development” of the case and the arrangement should be disclosed to the client.  California Rule of Professional Responsibility 3-500; Bus. and Prof. Code §6068(m); see also Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 518.

How does the process of hiring a freelance attorney work?

Hiring Natalie Marcell, Esq. is a straightforward, easy process that can be broken down into a few simple steps:

  1. Contact Natalie Marcell, Esq. and provide:
    • the nature of the project;
    • the deadline for the project; and
    • the names of the parties
  2. Natalie Marcell,Esq. will perform a conflict check.
  3. After ensuring that there are no conflicts, the specifics of the project are discussed as well as the communication plan moving forward, the estimated number of hours needed to complete the project and fees/cost.
  4. Natalie Marcell, Esq will provide a freelance legal services agreement for you to sign.
  5. You send all relevant documents to Natalie Marcell, Esq.  Keeping your client’s confidential information protected is a high priority for Natalie Marcell, so all information will be shared via a secure encrypted portal.
Do freelance attorneys need to carry their own malpractice insurance?

Natalie Marcell, Esq. does carry her own malpractice insurance.  When looking for a freelance attorney to help you, please keep in mind that there are freelance attorneys out there who do not carry their own malpractice insurance because they are relying on your malpractice insurance policy to cover them. This is because regardless of whether a freelance attorney carries malpractice insurance, law firms are ultimately responsible for the work product and must review a freelance attorney’s work product before submitting it to the client or to a court.  Under California Rule of Professional Conduct 3-400(C), it is not ethically permissible to contract with a client to limit a law firm’s potential malpractice liability by placing all liability on the freelance attorney assisting with a project.  Many insurance policies do allow a law firm to add a freelance attorney to its policy without additional premiums.  In the event you are working with a freelance attorney that does not carry their own malpractice insurance, it is important to check your policy and contact your insurance company to make sure that the freelance attorney you are working with is covered – a hassle that is easily avoided by simply working with a freelance attorney that already carries their own malpractice insurance, such as Natalie Marcell.

What are your fees?

Natalie Marcell will provide you with either an hourly rate or a flat rate for the project you need completed.  Natalie’s rates change depending on the type of work involved and the deadline.  Natalie Marcell is open to negotiating her rates and is more affordable than you’d expect.  Contact Natalie Marcell, Esq. to discuss your project and get your free quote.

What forms of payment do you accept?

The Law Office of Natalie Marcell accepts all major credit cards and checks.  Payments can be made online through a secure web portal for your convenience.

Do you accept projects on a rush basis? 

Yes. Please contact Natalie Marcell, Esq. as soon as possible to discuss availability for rush projects and to get your free quote.

 

Still have questions? Contact Natalie Marcell who’d be more than happy to help.