Freelance lawyers are bound by all of the ethical obligations stemming from the attorney-client relationship, just like any other lawyer representing a client. Colorado Bar Association Ethics Opinions are clear that a freelance lawyer forms an attorney-client relationship with the hiring lawyer’s clients, even if the freelance lawyer works only for a short duration, limited scope, or never meets the client. As such, freelance lawyers need to screen for conflicts of interest, observe client confidentiality, and act competently. The timing of when you engage a freelance lawyer can have a bearing on some ethical issues.
Before undertaking any new representation, the freelance lawyer must screen for conflicts of interest with current and former clients, and, if necessary, obtain conflict of interest waivers. The hiring lawyer therefore needs to provide the freelance lawyer with sufficient information to evaluate conflicts of interest. Pursuant to C.R.P.C. 1.6(b)(7), the hiring lawyer can “reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of the firm…” Particularly in complex litigation or transactional matters with multiple parties, related parties, and associated counsel, be sure to allow sufficient time for conflicts checks.
I recommend that the hiring lawyer and freelance lawyer enter into a written Fee Agreement that lays out compensation, billing terms, the scope of the representation, and other important issues related to the representation. If the hiring lawyer and freelance lawyer are working together for the first time, allow for sufficient time to negotiate the terms of the Fee Agreement and for execution.
Conflicts screening and executing a Fee Agreement need not take a long time, but it is something to keep in mind to have realistic expectations about the formation of the relationship.
Competency is another core ethical responsibility. Depending on deadlines and urgency, when you engage the freelance lawyer can have implications for the freelance lawyer’s ability to provide competent representation. According to C.R.P.C. 1.1, “competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Comment 5 to Rule 1.1 states that “competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of less complexity and consequence.”
Absent truly exigent and emergent situations, the hiring lawyer should contact and engage a freelance lawyer to allow for the required level of attention and preparation. It takes time for a new lawyer on a case to come up to speed. A freelance lawyer may need to review pleadings or internal memos in order to get a background picture and obtain the necessary information to complete the factual and legal analysis. If you can avoid it, do not call a freelance lawyer with a new client matter and ask them to turn around a very complex analysis within a day.
Scope of Representation
If you’re thinking about bringing on a freelance lawyer, consider the scope of the representation and the type of support that you’re looking for from the freelance lawyer. In the litigation context, it is important to evaluate whether you need ongoing support or one-time research or coverage needs.
Discovery is absolutely crucial but can be tedious, time consuming, and expensive. A freelance lawyer can help propound discovery requests, review and organize voluminous disclosure and discovery documents, conduct witness interviews, and prepare to take or defend a deposition. A good discovery strategy is centered around the elements of each claim or defense.
Think about the case’s discovery deadlines and limitations. Calendar the deadlines for close of discovery and work backwards to ensure that you’re submitting interrogatories, requests for admission, and requests for production of documents within the time limitations. You don’t want discovery deadlines to sneak up on you before you can engage a freelance lawyer.
If you need litigation support during the discovery process, it is important that the freelance lawyer understand the parties, issues, claims for relief, and defenses. Bring the freelance lawyer on board with enough time to allow for this type of background, get-up-to speed work.
The weeks leading up to a major hearing or trial can be overwhelming. A freelance lawyer can help prepare witness and exhibit lists, trial briefs, jury instructions, anticipate evidentiary issues and objections, and prepare outlines of witness questions centered around the elements of each claim or defense. I’ve found that this phase of litigation is often much more time-consuming than lawyers tend to plan for. The deadlines get progressively tight and the details really need to be nailed down in this stage.
Much of the trial preparation work is appropriate to outsource to a freelance lawyer. Early lead time will ensure that the freelance lawyer has adequate time to devote to these tasks and there are no surprises or bottlenecks at the 11th hour. You’ve worked really hard to get the case this far—invest the time in engaging a freelance lawyer.
Going to trial can feel like a Herculean task, especially as a solo. Even relatively simple cases can involve thousands of pages of documents or several witnesses. If you think you’ll need or want trial support, consider engaging a freelance lawyer to serve as second chair. A freelance lawyer can manage exhibits and witnesses, deal with evidentiary issues and objections, prepare for impeachment of witnesses, ensure that relevant evidence is on the record and issues are preserved for appeal, and do on-the-fly legal research for bench memos.
Major hearings and trials are booked months in advance. Get your second chair support lined up early. Lawyers' calendars fill up quickly. It is better to get your trial support booked than be floundering at the last moment while you’re dealing with multiple trial-related deadlines.
Set Everyone Up for Success
I understand that when you’re barely holding your head above water, you sometimes feel that you cannot come up for air to even delegate work. It is tempting to handle all of the work yourself rather than to take the time to bring someone new on board, get them up to speed, and explain the issues and legal needs. I’ve been there. But planning ahead and building in a modest amount of time to engage a freelance lawyer will pay dividends. Ultimately, for both the hiring lawyer and the freelance lawyer, it is about providing excellent representation for the client. Giving the freelance lawyer the tools they need, including time, will lead to better outcomes for the client.
Freelance legal services are responsive to the hiring lawyer's (and client's) needs, and the timing of the representation will necessarily depend on the unique circumstances. Bringing a freelance lawyer on the case with plenty of lead time before deadlines and major events will start the relationship off with the best foot forward.