Questions regarding the ethical “duty of competence” can arise when law firms outsource legal work to contract attorneys. Section 6067 of the California Business & Professions Code recites the attorney’s oath “to faithfully discharge the duties of an attorney at law to the best of his knowledge and ability.” California Rule of Professional Conduct 3-110 requires that an attorney perform legal services “competently,” which the Rule defines as “diligently to apply the learning and skill necessary to perform the member’s duties arising from employment or representation.” Further, the discussion section of Rule 3-110 states, “The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorneys and non-attorney employees or agents.”
The temporary attorney relationship typically involves a supervising attorney who is responsible for the temporary attorney’s work. The supervising lawyer assigns the task, provides some guidance, signs the document, and is ultimately responsible for its content. Attorneys may also choose to seek assistance from other attorneys if they are unfamiliar with a particular area of law. This is permissible under Rule of Professional Conduct 3-110(C), which states, “If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.” In order 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.
There are several recent cases against prominent law firms for alleged failure to properly supervise inexperienced contract attorneys. A legal malpractice suit filed against McDermott Will & Emery alleges that outside contract lawyers “negligently performed their duties” while screening documents. The suit alleges that McDermott lawyers “negligently performed limited spot-checking of the contract attorneys’ work,” leading to the disclosure of about 3,900 privileged or irrelevant documents. J-M Mfg Co., v. McDermott Will & Emory LLP, No. BC462832 (Cal. Sup. Ct., County of Los Angeles).
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 or freelance 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.