Does Freelance/Contract Legal Work Violate Rules Prohibiting Aiding and Abetting the Unauthorized Practice of Law?

This blog post is the second 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 here.

Freelance Lawyering Ethics Rule #2: Does a law firm violate ethical rules prohibiting aiding and abetting the unauthorized practice of law by outsourcing legal work to an attorney licensed in another jurisdiction?

Take Away: Aiding and abetting the unauthorized practice of law is not an issue when outsourcing to attorneys licensed in the same jurisdiction, i.e. when a law firm in California hires a freelance lawyer that is a member of the State Bar of California. Outsourcing to an out-of-state attorney is almost always permissible if the freelance lawyer is ghostwriting documents behind the scenes and not doing anything considered “practicing law,” such as signing a pleading, making an appearance, or negotiating the ultimate terms of an agreement. 

A person who is not an active member of a jurisdiction’s state bar may not practice law in that state. An unlicensed lawyer practicing law in California is engaging in the unauthorized practice of law in violation of Business & Professions Code section 6125. A California lawyer who assists an unlicensed person in the practice of law in California may be in violation of California Rule of Professional Responsibility 5.5, which states that a lawyer shall not “knowingly assist a person in the unauthorized practice of law in that jurisdiction..”. This provision applies only when a California law firm outsources legal projects to an attorney who is not licensed in California.

While the State Bar Act does not define the practice of law, Courts have discussed its meaning.  In Birbrower, Montalbano, Condon & Frank, PC v. Superior Court (1998) 17 Cal.4th 119, the Court held, “The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state or created a continuing relationship with the California client that included legal duties and obligations.” Birbrower, 17 Cal.4th 119, 129.

California ethical rules permit law firms to contract for certain legal services by attorneys not licensed in California, including drafting legal pleadings, as long as the law firm remains ultimately responsible for the final work product. Jacoby v. State Bar (1977) 19 Cal. 3d 359, 363; People v. Perez (1979) 24 Cal. 3d 133, 143.  See also Orange County Bar Formal Opinion No. 94-002 (1994) (opining that a paralegal who does work of a preparatory nature, such as drafting initial estate planning documents, is not engaged in the unauthorized practice of law where the attorney supervising the paralegal maintains a “direct relationship” with the client, citing ABA Ethical Consideration 3-6.).

If the temporary attorney makes an appearance in court or at a deposition, then that attorney must be admitted in California.  In most situations, however, the temporary attorney performs research and writing or other tasks that do not require a license so long as an attorney licensed by the state retains full control over the representation of the client and exercised independent judgment in reviewing the non-licensed attorney’s work.  Law firms must take care to use temporary attorneys with the requisite experience for the task, and must consider the duty of competence, but simply engaging temporary attorney services from an attorney not admitted in California generally does not amount to aiding and abetting in the unlawful practice of law. San Diego County Bar Association Ethics Opinion 2007-1 (“SDCBA Opinion 2007-1”) (“the attorney does not aid in the unauthorized practice of law where he retains supervisory control over and responsibility for those tasks constituting the practice of law.”) Orange County Bar Association Formal Opinion 2014-1. The Opinion concludes that “[t]here is nothing inherently unethical with a client or lawyer hiring another lawyer—often a contract lawyer—to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement.” OCBA Formal Opinion 2014-1 at 8.

Firms outsourcing to out-of-state attorneys may limit their risk of aiding and abetting the unauthorized practice of law by following some simple steps:

1. Ensure that the contract attorney is only performing tasks that are within their authorized scope of practice in the state where the legal work will be performed. The law firm should provide clear instructions and guidelines to the contract attorney, and it should monitor their work to ensure that it is in compliance with state law.
2. Ensure that the law firm is supervising the work of the contract attorney appropriately.
3. Clearly define the scope of the contract attorney’s work. Do not ask the contract attorney to make appearances, sign documents, appear on case captions, counsel clients, or otherwise practice law without a license.

By taking these steps, a law firm can hire a contract attorney licensed in another state without aiding and abetting the unauthorized practice of law.