In this post, I discuss fee agreements with freelance lawyers.
The Colorado Rules of Professional Conduct generally do not require that lawyers use formal fee agreements or engagement letters. It is, however, undoubtedly a best practice. A well-drafted fee agreement will define the parties’ expectations, limit the lawyer’s liability, and give the client an understanding of aspects of law firm management and billing.
This still holds true in the freelance law context, and the hiring lawyer and freelance lawyer should enter into a written fee agreement. I believe it is thefreelance lawyer's responsibility to have a fee agreement ready to give to the hiring lawyer. A fee agreement for freelance legal services should contain the following terms:
Scope of the Representation
As with unbundled legal services, it is crucial that all parties are on the same page about the scope of services and which party is responsible for certain actions. Be specific. Use exclusions. As the scope of service is expanded or modified, use an addendum to document any changes.
Define the work product that the freelance lawyer should produce. If the hiring lawyer uses or wants specific style conventions or formats, the hiring lawyer should convey that to the freelance lawyer.
If the hiring lawyer limits the time the freelance lawyer should spend on a project, state it in the fee agreement.
State the freelance lawyer’s compensation, such as the hourly/weekly/per project rate. State the billing terms and when payment is due. To avoid fee-splitting, I state that the hiring lawyer is obligated to pay me regardless of client payment.
Ultimate Professional Responsibility/Supervision
You may wish to state that the hiring lawyer is ultimately responsible for the representation of the client and the legal services provided to the client. Define the hiring lawyer’s supervisory responsibility and whether the hiring lawyer will adopt the freelance lawyer’s work product.
Verify that the hiring lawyer has provided the freelance lawyer with information adequate to evaluate conflicts of interest. Verify that 1) the freelance lawyer has not identified any conflicts, or 2) that the conflicts have been effectively waived by informed client consent in writing.
To avoid imputed conflicts of interest between the hiring lawyer and freelance lawyer, state that the hiring lawyer is providing the freelance lawyer with only the information necessary for the representation. State that the freelance lawyer does not have access to the firm’s files for other clients.
Independent Contractor Status
State that the freelance lawyer is an independent contractor working for the firm on a limited basis, and the working relationship does not constitute an employer-employee relationship. State that the hiring law firm will issue a W-9/1099 to the freelance lawyer.
If the freelance lawyer carries malpractice insurance, state so in the fee agreement. If the freelance lawyer is covered by the hiring lawyer’s malpractice insurance as an independent contractor, verify and state so the fee agreement.
Depending on the unique relationship between the hiring lawyer, freelance lawyer, and the client, and the unique freelance legal services, other terms may be relevant.
This is the final post in the “Ten Things To Know About Freelance Law” series. I hope that you’ve found it interesting and helpful and learned some concrete best practices to apply in the freelance law context.
If you or another lawyer you know could benefit from freelance legal services, I am happy to discuss how I can support your practice.
Of course, rules and ethical obligations may vary by jurisdiction, and this post does not constitute legal advice.