Can a Hiring Lawyer Discharge His or Her Duty of Competence by Hiring a Freelance Attorney?

This blog post is the third in a series of eight updated posts summarizing the ethical rules that come into play when a law firm outsources legal work to a freelance/contract lawyer.  See Ethics Rule #1 (Conflicts of Interest) and Ethics Rule #2 (Aiding and Abetting).

Freelance Lawyering Ethics Rule #3: Can a hiring lawyer discharge his or her duty of competence by hiring a freelance attorney?

Take Away: No, lawyers are ethically required to competently represent their clients, and an attorney cannot discharge his or her duty of competence under any circumstances.  Hiring firms are encouraged to obtain legal help only from competent, experienced freelance attorneys to supplement their legal knowledge, but must always supervise a freelance attorney and review their work product.  The hiring firm is ultimately responsible for all work product that leaves the firm.

California Rule of Professional Conduct 1.1 requires that an attorney perform legal services with “competence,” which the Rule defines as the application of “the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.”  If an attorney is unfamiliar with an area of law, they may also choose to seek assistance from other attorneys to enhance their competence.  This is permissible under Rule 1.1, which further states, “If a lawyer does not have sufficient learning and skill when the legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”  To satisfy the duty of competence, however, the attorney must be able to independently determine whether the “outsourced” work has been done competently.  The attorney therefore must know enough about the issue or subject to competently judge the work.  The attorney may not solely rely on a temporary attorney to discharge the duty of competence.  SDCBA Opinion 2007-1.

An attorney’s duty of competence is not limited solely to the practicing attorney, but also extends to subordinate attorneys and staff. Rules 5.1 and 5.3 clarify that a hiring attorney has a duty to supervise all subordinates, both lawyers and nonlawyers, including attorneys who are not members of the hiring firm.  This means that an attorney’s duty of competence includes responsibility for any temporary attorneys working on the firm’s matters. The temporary attorney relationship typically involves a supervising attorney who is responsible for the temporary attorney’s work.  The supervising lawyer assigns the task and provides guidance. The freelance attorney drafts the document(s), which the hiring attorney reviews, revises, and/or ratifies. The hiring firm is ultimately responsible for all content in every document that leaves the firm. Under Rule 5.1(b), “A lawyer having direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm,* shall make reasonable* efforts to ensure that the other lawyer complies with these rules and the State Bar Act.”  Rule 5.1(c) further clarifies that the hiring attorney is responsible for another attorney’s violation of the duty of competence if the lawyer “orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved” or “the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm* in which the other lawyer practices, or has direct supervisory authority over the other lawyer, whether or not a member or employee of the same law firm,* and knows* of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable* remedial action.” Simply stated, an attorney cannot discharge the duty of competence, and remains ultimately responsible for the firm’s work product.

The ABA has commented on the importance of using only skilled and experienced contract attorneys in Formal Ethics Opinion 08-451 (August 2008) – “There is nothing unethical about lawyer outsourcing legal…services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by Model Rule 1.1.”

Comment 1 to ABA Model Rule 1.1 further states: “In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

Best practices dictate hiring only skilled contract attorneys with the experience necessary to competently perform the quality of legal work all clients deserve, and to exercise competent, independent judgment over the temporary attorney’s work product. A hiring firm cannot discharge its duty of competence by hiring a freelance attorney, and must review, revise and/or ratify all work performed by a freelance lawyer because the hiring firm is ultimately responsible for all work product that leaves the firm.