Freelance Law

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.

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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.

Book Review: The Freelance Lawyering Manual

Book Review: The Freelance Lawyering Manual

I read Kimberly Alderman’s The Freelance Lawyering Manual: What Every Lawyer Needs to Know About the New Temporary Attorney Market several months ago and recently picked it back up.  This book is filled with practical suggestions, real world examples, and valuable insights for lawyers considering starting a freelance law practice and for lawyers who might hire or work with freelance lawyers.

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Introduction

After a few years as a stay-at-home mom, I was ready to have a professional presence in my life again.  I searched high and low for law jobs that met a few criteria: i) a part-time or flexible schedule to allow me to stay at home with my girls a few days a week, ii) something I could do from my tiny town in the middle of nowhere Colorado, and iii) something that was substantively interesting to me.  Unsurprisingly, I didn’t find a multitude of jobs that ticked all of those boxes! 

I began to reflect on what I really liked to do.  For a while, I did a limited amount of contract work for my former employer.  I drafted memos and pleadings and did legal research.  I loved it.  It was a serious lightbulb moment when I realized I could build an entire practice based on this type of contract work!  I started to research a freelance legal services business model and I came across  The Freelance Lawyering Manual.  This book was exactly what I needed to take the plunge and start my own solo freelance practice. 

The book is organized into three sections: Part I, What Freelance Lawyers Need to Know; Part II, What Hiring Attorneys Need to Know; and Part III, Issues of Joint Concern: Ethical Requirements.

Part 1: Information for Freelance Lawyers

In Chapter 1, Ms. Alderman discusses the freelance legal market.  This chapter contrasts the hit the legal industry took with the 2008 recession with the growth of the freelance economy.  This book is from 2011, so some of the discussion is a little dated.  The gig economy, however, has continued to expand and has made serious inroads in the legal profession.  I think that there is a tremendous untapped market in the legal profession for freelance legal services.

In Chapter 2, Ms. Alderman helps lawyers decide whether freelancing lawyer will be a good fit.  I found this section very beneficial as I was considering this career path.  I felt that I could make an informed decision and have my eyes open to both the challenges and opportunities of freelancing.  Ms. Alderman offers some “plain truths” about freelancing law practice that, in my experience, hold up.  Here are the freelancing lawyering plain truths:

·       #1 “Successful freelance law practices aren’t built overnight”

·       #2 “It may take years of building a freelance law practice to achieve regular, consistent income”

·       #3 “Young freelance law practices are typically general in nature”

·       #4 “No one is going to babysit you into doing your job”

·       #5 “You are not going to have the support staff that you would with a traditional lawyer job”

·       #6 “Marketing a freelance law practice is no easier than marketing a traditional firm—if anything, it is harder”

·       #7 “Freelance law practices are a new phenomena, so potential clients will have to be convinced that using a freelance lawyer can be both ethical and profitable”

·       # 8 “If you wish to obtain traditional employment with a law firm in the future, they may consider your time freelancing as a ‘black mark’”

Chapter 3 is called “Getting Started” and covers some of the basic investments you should make in a freelance law practice, such as phone, email, legal research platforms, entity formation, licensing, etc.   This chapter really offers practical advice for a lawyer considering what it takes to effectively work in this type of practice.  From a technological perspective, there are more options and more ways to leverage technology than were readily available in 2011, so the reader should take some of the suggestions with a grain of salt.  Even with this in mind, freelance legal practices must effectively use technology to meet and connect with attorney clients.

Chapter 4 covers the financial aspect of a freelance law practice.  As with the previous chapter, this is chock full of practical advice.  Freelance lawyers have a wide variety of motivations for seeking this practice and have a really wide range of income requirements.  This chapter helps potential freelance lawyers evaluate their overhead, profit margins, and billing rates, and make a decision as to whether this business model will really support their financial goals.

Chapter 5 discusses marketing a freelance law practice.  As I have found to be true from my own experiences, Ms. Alderman suggests that the single most effective marketing tool is in-person networking.  She provides some great examples of networking opportunities, some of which I have taken advantage of to good effect.  This chapter also covers advertising, social media, and other aspects of marketing. 

This chapter is a little weak on using social media to connect with other lawyers.  Since this book was published in 2011, Facebook, LinkedIn, and Twitter have exploded in growth and lawyers and law firms are consistently using those platforms to advertise and communicate about their traditional law practices.  If your clients are other lawyers, you need to be where they are—both in person and online.  I have joined many Facebook groups focused on lawyers—groups on motherhood and the law, groups on women-owned firms, groups on lawyers of a particular political or religious bent.  I don’t use these contacts to “sell myself,” but they are a great source of referrals and a way to connect with other lawyers.

Chapter 7 discusses the actual practice of freelance law.  It covers client communication, file maintenance, and some of the administrative aspects of a law practice.  If you have a strong background as a solo or small firm practitioner, you probably already have a good grasp on these issues.  If you’re considering coming into freelance law from a different practice setting, this is really helpful information.  This chapter is supplemented by material in the appendix such as engagement letters and sample contracts.

Part II: Information for Hiring Lawyers

Part II shifts gears from advising freelance lawyers to advising hiring lawyers—that is, those lawyers who are interested in using freelance legal services to support their practices.  I am so glad that Ms. Alderman included this perspective in her book.  She notes that it is a ‘plain truth’ that lawyers need to be educated about the opportunities, limitations, and ethical considerations of this business model, and I have found that to be true.  I spend a good deal of time and effort in providing that education to potential clients through blog posts, articles, and presentations.

Chapter 8 focuses on the risks and rewards of using a freelance lawyer.  In my experience, time management is the biggest reason that hiring lawyers consider using a freelance lawyer.  This chapter covers the issues of practice management as well as revenue and specialization.

Chapter 9 walks a potential hiring lawyer how to find, evaluate, and hire a freelance lawyer.  It discusses screening and supervising lawyers, pay rates, and managing the hiring lawyer-freelance lawyer relationship.  Freelance legal services are an underused option for solos and small firms, and my experience is that once a lawyer establishes a relationship with a freelance lawyer they trust, they’ll keep using this service.  But they have to connect with the freelance lawyer in the first place!

Chapter 10 covers client relations between the hiring lawyer and their client.  This chapter explores disclosure to the client and the financial arrangement between the hiring lawyer and their client for freelance legal services. 

Part III: Ethical Considerations

Part III explores the ethical issues surrounding freelance legal services.  Hiring lawyers need to be educated about freelance legal services as a business model and practice setting, but they also need to be educated about the ethical issues that they need to keep in mind.  A savvy freelance lawyer will research and understand their jurisdiction’s rules or ethics opinions as they relate to various aspects of freelance legal services.  I have prepared a CLE presentation, bar association articles, and an ‘orientation letter’ for potential lawyer clients, all focused on the ethics of freelance lawyering. This section offers good, if general, advice and identifies some of the ethical concerns that both the hiring lawyer and freelance lawyer should anticipate.

Chapter 11 deals with supervising the freelance lawyer.  It offers suggestions on how to select competent lawyers, provide feedback and set parameters for legal work.

Chapters 12-15 cover the ethics issues most central to freelance legal services: confidentiality, malpractice concerns, screening for clients and preventing imputed conflicts, and billing for freelance work.  Again, lawyers should consult their state’s ethics rules, disciplinary rulings, and ethics opinions for current ethics obligations.  These chapters help lawyers identify potential issues and explains how the American Bar Association Ethics Opinions have treated various issues.

Conclusion

This book was a revelation for me.  It was a serious lightbulb moment when I realized lawyers were practicing law using this freelance model.  This book was a wonderful resource and gave me the tools and confidence I needed to make the plunge and set myself up for a growing freelance law practice.  I highly recommend it to lawyers thinking about either providing or using freelance legal services.

Why work with a freelance lawyer?

Why do lawyers choose to work with a freelance lawyer?

My practice is focused on providing litigation support and legal research and writing services to Colorado lawyers on a freelance or contract basis.  I truly love helping other lawyers sustain and grow their practices and I’ve worked with solo and small firm practitioners throughout Colorado.  Although working with a freelance lawyer may not always meet your needs or your clients’ needs, it is an often overlooked and underused option for lawyers.  Here are a few reasons that hiring lawyers have reached out to me for freelance legal services:

Staffing Changes:

Lawyers have contacted me because they are in between associates and need short-term, temporary coverage.  As anyone who has been involved in the associate hiring process knows, it can take quite a while to find a good fit and it is really worth taking the time to get it right.  I have been able to step in and get to work immediately on assignments.  This takes some of the pressure off of the hiring lawyer--they have the coverage and support to dedicate their time to the associate search.

Firm Expansion:

Lawyers have contacted me when they are thinking about adding an associate to their solo practice or expanding their small firm.  For many lawyers, their workload is increasing but they’re not quite ready to make immediate hiring decisions.  By outsourcing some legal work to me, lawyers get a sense for working with and supervising an associate.  This gives hiring lawyers the perspective to evaluate their firm's staffing needs.

Retirement:

I have worked with a lawyer who was wrapping up his solo practice and planning for retirement.  He was working less often but still needed some research support.  I was able to help him close a few outstanding client matters so that he could retire with peace of mind. 

Medical Issues: 

Unfortunately, many of us will experience a major illness or injury in our lifetime that will pull us away from work. I have spoken with lawyers who needed long-term coverage as they dealt with their medical issues. 

Time Away from the Office: 

It’s a wide world out there, and it sure is nice to see more of it.  I’ve spoken with lawyers contemplating extended travel.

Practice Management:

Most hiring lawyers choose to work with a freelance lawyer simply to moderate their workflow during busy periods.  According to Colorado Rule of Professional Conduct 1.3, lawyers must "act with reasonable diligence and promptness in representing a client." 

Perhaps no professional shortcoming is more widely resented than procrastination.
— C.R.P.C. 1.3, Comment 3

I have helped lawyers slog through necessary but tedious projects, like document review.  It really makes sense to outsource these projects to a freelance lawyer. 

Trial Preparation

I have worked with lawyers on trial-related matters and provided one-time or ongoing litigation support.  Litigation requires legal research on a wide range of procedural and substantive issues.  Litigation is time-consuming and expensive, and it takes a lot of work to do it well.  I provide cost-effective support throughout the litigation process.

 

Freelance legal services are inherently flexible and can be structured in a really wide variety of ways to best serve the needs of each party.  If you need to add capacity or coverage to your practice, I offer flexible, cost-effective, and individually-tailored solutions to support the great work you’re doing.

-Sarah 

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Coleman Law--Reflections on 2017

As we are still early in the new year, I want to take a moment to reflect over the last year.

I started Coleman Law in late September 2017.  I formed Coleman Law to do what I love best—help lawyers with their legal research and writing needs.  I work with lawyers and clients across Colorado to provide alternative, low-cost representation on a freelance or contract basis. 

I chose this business model for several reasons.  First, I truly enjoy legal research and writing.  It is the part of the practice of law that I like best.  I want to invest my professional energy in continuing to develop these skills.  Second, I love supporting other lawyers and helping them sustain and grow their practices.  I often work with busy solo or small firm practitioners, especially in rural Colorado.  I understand the unique challenges of solo/small firm practice because I have been there myself.  I know that they're busy, they're really busy.  These lawyers do not have someone else in the office to help moderate their workflow.  I can add value by giving them the option to add capacity to their practice without the long-term commitment of adding another employee.  Finally, I chose to provide freelance legal research and writing services because it offers me the opportunity to balance my professional life and personal life.  I get to practice law from paradise, Crested Butte, and still be a stay-at-home mom (most days).  I feel very fortunate indeed.

In 2017, I exceed my goal for pro bono hours.  I volunteered with Colorado Legal Services San Luis Valley virtual legal aid clinic and worked with a public interest organization.  I look forward to continuing to provide pro bono representation in 2018.

I also assumed responsibility for coordinating the Gunnison County Inns of Court, our local bar association.  I took over from my mentor and former employer, Luke Danielson, who served as coordinator for many years.  I want to use this forum to highlight access to justice issues and resources for rural practitioners.

I gave a CLE presentation to my local bar association on the Ethical Considerations in the use of Freelance Legal Services.  I will be sharing this presentation with other bar associations and writing an article for the Colorado Lawyer on this topic.

As I look back over the last year and the formation of Coleman Law, I realize how privileged I am to practice law.  I am thankful for the incredibly decent and generous people in this profession.  I am excited about the prospects for “serving Colorado clients, supporting Colorado lawyers” in 2018.

Freelance Law: Ethics Opinions

Ten Things To Know About Freelance Law: #9 Supervision of a Freelance Lawyer

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.