In this post, I discuss confidentiality issues in the freelance law context.
As discussed in earlier posts, freelance lawyers form an attorney-client relationship with hiring lawyer’s client, and all of the ethical obligations inherent in the attorney-client relationship are binding on the freelance lawyer. Colorado Bar Association, Formal Opinion 105, Opinion on Temporary Lawyers, May 22, 1999. One of a lawyer’s core ethical duties to clients is the duty to observe client confidentiality. “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).” C.R.P.C. 1.6(a). Rule 1.6 has three applications in the freelance law context: disclosure to the client based on level of supervision, obligations of the hiring lawyer, and obligations of the freelance lawyer.
The level of supervision, if any, that the hiring lawyer exercises over the freelance lawyer directly impacts whether the hiring lawyer can share confidential client information with the freelance lawyer without the client's informed consent. Outside of the limited confidentiality exceptions in paragraph (b), Rule 1.6(a) allows disclosure of confidential information either if the client gives informed consent or the disclosure is impliedly authorized.
When the hiring lawyer supervises or works closely with the freelance lawyer, the hiring lawyer is impliedly authorized to share confidential information with the freelance lawyer as part of the representation. That is because “client consent to the involvement of firm personnel and the disclosure to those personnel of confidential information necessary to the representation is inherent in the act of retaining the firm. However, that statement is predicated on the assumption that the relationship between the firm and the [freelance] lawyer involved a high degree of supervision and control, so that the [freelance] lawyer would be tantamount to an employee.” American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 08-451, Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services, August 5, 2008.
Conversely, when the hiring lawyer exercises little to no supervision over the freelance lawyer, the hiring lawyer must obtain the client's informed consent to the disclosure of confidential information. “Where the relationship between the firm and the individuals performing services is attenuated, no information protected by Rule 1.6 may be revealed without the client’s informed consent. The implied authorization of Rule 1.6(a)…to share confidential information within a firm does not extend to outside entities or individuals over whom the firm lacks effective supervision and control.” Id. (I will discuss supervisory issues in a later post). The hiring lawyer must evaluate the level of supervision and determine whether client informed consent is necessary. If informed consent is necessary, the hiring lawyer must provide the client with adequate information about the risks and alternatives. C.R.P.C 1.0(e).
Rule 1.6 imposes additional obligations on the hiring lawyer. “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to representation of a client." C.R.P.C. 1.6(c). Rule 1.6(c) has two applications in the freelance law context.
First, to avoid imputed conflicts of interest between the freelance lawyer and hiring lawyer, the hiring lawyer should screen the freelance lawyer from all information relating to the firm’s other clients for whom the freelance lawyer is not doing work. Colorado Bar Association, Opinion 105; American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 88-356, Temporary Lawyers, December 16, 1988. (I discussed screening in the previous post about conflicts of interest).
Second, the hiring lawyer should take steps to protect client confidentiality when outsourcing services, whether legal or nonlegal. “Depending on the sensitivity of the information being provided to the services provider, the [hiring] lawyer should” evaluate the service provider’s practices to get a sense of the “operation and professionalism” of the freelance lawyer. American Bar Association, Opinion 08-451. To meet this obligation, the hiring lawyer should consider a confidentiality agreement with a freelance lawyer, either in a fee agreement or in a stand-alone agreement. Id. (I will cover fee agreements with freelance lawyers in the final post in this series).
In the attorney-client relationship, Rule 1.6(a) imposes obligation on the freelance lawyer. If the freelance lawyer is deemed to be associated with the hiring lawyer’s firm under C.R.P.C. 1.10, the freelance lawyer cannot disclose information related to the representation of the firm’s clients, regardless of the source of the information. American Bar Association, Opinion 88-356. If a freelance lawyer has access to confidential client information for the firm’s clients, the freelance lawyer “must not disclose information relating to the representation of persons known to the [freelance] lawyer to be firm clients regardless of the source of the information.” Id. The freelance lawyer, however, has more limited obligations when not deemed to be associated with the hiring firm. In that circumstance, the freelance lawyer is limited to “not revealing (1) information relating to the representation of any client for whom the temporary lawyer is working and (2) information relating to the representation of other firm clients only to the extent that the temporary lawyer in fact obtains the information as a result of working with the firm.” Id.
Rule 1.6 imposes confidentiality obligations on the hiring lawyer and the freelance lawyer alike, and both lawyers should review their processes to ensure that they fulfill these obligations.
In the next post, I will cover how hiring lawyers can bill their clients for freelance legal services.
Of course, rules and ethical obligations may vary by jurisdiction, and this post does not constitute legal advice.