Ethics

Colorado Lawyer--Ethical Considerations When Using Freelance Legal Services

I am so pleased to have the opportunity to spread the word about freelance legal services through Colorado Lawyer, the monthly publication of the Colorado Bar Association. 

This article discusses the basics of freelance legal services, compares freelance legal services to unbundled legal services, the hiring lawyer's duties with respect to disclosure to the client, confidentiality issues, conflict of interest issues, compensation arrangements, supervision, and fee agreements. 

Here is the article: https://www.cobar.org/Portals/COBAR/TCL/June%202018/CL_June_Features_Ethics.pdf

When Should I Call a Freelance Lawyer?

Lawyers can use freelance legal services in a variety of ways to serve their needs and their clients' needs.  Given the flexibility in the ways the lawyers can structure the relationship, I am sometimes asked when a hiring lawyer should reach out to a freelance lawyer.

Freelance Legal Services

As a freelance lawyer, I truly love helping other lawyers sustain and grow their practices.  I primarily work with solo and small firm lawyers, and I have practiced as a solo or in small firms for my entire legal career.  I know how difficult it can be to moderate your workflow when you can’t spread the work out among more lawyers.  Because I understand the unique challenges of solo and small firm practice, I love being able to add value and support lawyers by providing freelance legal services.

I like to think of myself as an ‘on-demand associate’ because you get support how and when you need it.  But when should you engage me for freelance legal services?  The answer is: it depends on your needs.  I’ve had lawyers call me with pressing legal research or writing needs as a hard deadline quickly approaches.  On the other hand, some lawyers have engaged me very early in litigation, well before any deadlines are looming in order to involve me in forming litigation or mediation strategy.

Keeping in mind that freelance legal services are flexible, on-demand, and individually-tailored, here are some of my observations about when to engage a lawyer on a freelance or contract basis.

clock.jpg

Ethical Obligations

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.

Pro Bono Recognition

pro bono .jpg

The Colorado Attorney Oath of Admission states "I do solemnly swear....I will use my knowledge of the law for the better of society and the improvement of the legal system."  I love that the legal profession cares about pro bono work and access to justice issues.  I am proud to do my small part!

Karl Ranous Professionalism Award

 

On April 10, lawyers in Gunnison County met for the annual Karl Ranous Professionalism Award dinner.  Every year, the bar association gathers to honor a local lawyer who exemplifies the values and practices of professionalism.  This year, the Gunnison County Bar Association honored Hon. J. Steven Patrick, the Chief Judge of Colorado’s 7th Judicial District.  Judge Patrick sets the tone and a high standard for lawyers practicing in the 7th Judicial District.  This is a well-deserved recognition of the professionalism displayed in Colorado courts.

We also heard a presentation from Jim Coyle, head of Colorado Attorney Regulation Counsel and Barbara Eyzk , Executive Director of the Colorado Lawyer's Assistance Program. 

  Bob O’Hayre presented Judge Patrick with this year’s award.  

Bob O’Hayre presented Judge Patrick with this year’s award.  

Northwest Bar Association CLE

On March 16, I had the opportunity to meet with some of the lawyers of the Northwest Colorado Bar Association in Steamboat Springs. I gave a CLE presentation on "Ethical Considerations in the Use of Freelance Legal Services."  I especially love giving this presentation to lawyers in rural Colorado because they are mostly solo/small firm practitioners--and that's a group that can really benefit from freelance work and extra support from time to time.  I also especially love giving this presentation in another ski town!

The CLE covers:

  • basic terminology and arrangements within the freelance legal services context
  • disclosure to the client
  • confidentiality issues
  • conflicts of interest issues
  • billing for freelance legal services
  • working with freelance lawyers in other jurisdictions
  • fee agreements with freelance lawyers

Thanks again for having me!

 

 Steamboat Springs, Colorado

Steamboat Springs, Colorado

Review of Ethics Opinion 133

On October 27, 2017, the Colorado Bar Association Ethics Committee adopted Formal Opinion 133, Ethical Duties of a Lawyer who is Party to a Matter Speaking with a Represented Party.

This Opinion considered a lawyer's ethical obligations in a unique factual situation: may a lawyer who is a party to a legal matter discuss the matter with represented party without first obtaining that party’s lawyer’s consent?  In this scenario, the lawyer who is a party to a matter (lawyer/party) can either be pro se or be represented by separate counsel.  The lawyer/party’s ethical obligations with respect to communication with opposing parties turns on this distinction.

The relevant rule is CRPC 4.2, Communication with Persons Represented by Counsel.  The rule states that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”  A previous decision by a Colorado Supreme Court Office of the Presiding Disciplinary Judge identified three purposes of the rule: (1) to protect represented persons from overreach by opposing counsel; (2) to protect the attorney-client relationship from interference by opposing counsel; and (3) to reduce the risk that persons might disclose to opposing counsel confidential information harmful to their case.

A lawyer/party may proceed pro se in a legal matter.  In that case, the lawyer is actually acting as their own counsel.  Colorado disciplinary decisions establish that, when a lawyer is pro se, CRPC 4.2 applies to the lawyer’s communication with other parties.  A pro se lawyer will violate CRPC 4.2 by communicating directly with a represented party without their lawyer’s consent.

Conversely, a lawyer/party may be represented by counsel.  Per Opinion 133, “no Colorado decision has directly addressed the second scenario.” The Ethics Committee “concludes that Rule 4.2 does not prohibit a lawyer/party from discussing the matter with a represented adverse party when the lawyer/party is represented by counsel.”

Thus, when a lawyer/party proceeds pro se, CRPC 4.2 prohibits the lawyer from directly communicating with a represented party absent consent of counsel.  When a lawyer is represented in a matter, CRPC 4.2 does not prohibit the lawyer/party from directly communicating with the represented party about the matter.

Review of Ethics Opinion 132

On September 26, 2017, the Colorado Bar Association Ethics Committee adopted Formal Opinion 132, Duties of Confidentiality of Will Drafter Upon Death of Testator.  

This Opinion outlines the limited circumstances under which a lawyer who drafted testamentary instruments for a client (“drafting lawyer”) can reveal client information following the client’s death.  As a preliminary matter, the Opinion notes that confidentiality does not end on a client’s death, and so lawyers must continue to observe the duty of confidentiality after the death of a client.  C.R.P.C. 1.6, 1.9(c)(2).

There are four situations where a drafting lawyer may reveal information about a client’s intentions or instruments following death.

First, the client may have authorized the drafting lawyer to make such disclosures. 

Second, the Personal Representative of the deceased client’s estate may authorize the drafting lawyer to make such disclosures.  The Personal Representative “holds the rights to the client information.” Colorado Bar Association, Opinion 132.  In that case, the “disclosure should be no broader than necessary to carry out the decedent’s wishes.”  Id.

Third, a court can order the drafting lawyer to disclose such information. Colorado Rule of Professional Conduct 1.6(b)(8) allows a lawyer to reveal confidential information in order to comply with an order of the court.

Finally, the drafting lawyer may reveal client information if any of the other exceptions listed in Rule 1.6(b) are applicable, such as the crime-fraud exception.

Unless one or more of the four situations outlined above applies, “simply retaining a lawyer to draft estate documents without more, is not sufficient to constitute implied consent for a lawyer to voluntarily provide information protected by Rule 1.6.”  Id. 

Freelance Law: Ethics Opinions