In this penultimate post, I discuss the hiring lawyer’s supervisory obligations with respect to the freelance lawyer. As discussed in previous posts, the level of supervision that the hiring lawyer exercises over the freelance lawyer is important in several respects, including whether: 1) the hiring lawyer must disclose the use of the freelance lawyer to the client, 2) the hiring lawyer can impose a surcharge for the freelance lawyer’s work, and 3) the hiring lawyer can disclose confidential client information to the freelance lawyer without client consent.
But what does supervision of a freelance lawyer really entail? Colorado Rule of Professional Conduct 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.” Thus, if a hiring lawyer exercises supervision over a freelance lawyer, the hiring lawyer should take measures to ensure that the freelance lawyer observes the duties of competency, loyalty, confidentiality, and other ethical obligations.
Any lawyer—regardless of the scope of the representation—must act competently. C.R.P.C. 1.1. “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Id. Because competency is a core ethical duty, hiring lawyers have a “duty to select and hire competent attorneys.” Colorado Bar Association, Formal Opinion 105, Opinion on Temporary Lawyers, May 22, 1999. The American Bar Association promotes the use of freelance lawyers, so long as the freelance lawyer can “render legal services competently.” 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:
Hiring lawyers can use these best practices when selecting a freelance lawyer:
· Evaluate the freelance lawyer’s educational background;
· Verify that the freelance lawyer is licensed and in good standing;
· Evaluate the freelance lawyer’s professional experience and expertise;
· Conduct reference checks on the freelance lawyer;
· Assess the freelance lawyer’s character;
· Ask about the freelance lawyer’s conflicts screening system;
· Ask about the freelance lawyer’s measures to ensure confidentiality.
Once the freelance lawyer begins work on a matter, the hiring lawyer can use some of these practices to appropriately supervise the freelance lawyer:
· Carefully define and communicate about each lawyer’s responsibilities for meeting deadlines, filing pleadings, arranging service (I will discuss scope of services in fee agreements in the next post);
· Periodically check in with the freelance lawyer regarding the status of the matter;
· Evaluate the freelance lawyer’s experience and ability to work more independently;
· Propose remedial actions if necessary;
· Be available for the freelance lawyer to ask questions, brainstorm, and discuss the matter.
Most hiring lawyers hire a freelance lawyer to help with workload management. When a hiring lawyer selects a competent and experienced freelance lawyer, the supervisory obligations should not be unduly onerous. The benefits of supervising or adopting the freelance lawyer’s work pays off in that the hiring lawyer can mark up the freelance legal services.
In the last post in this series, I will discuss fee agreements with freelance lawyers.
Of course, rules and ethical obligations may vary by jurisdiction, and this post does not constitute legal advice.