Freelance lawyers have become an increasingly valuable resource for law firms that need flexibility, specialized expertise, or additional capacity. But like any attorney relationship, working with freelance lawyers raises important ethical considerations for the law firms that hire them.
Fortunately, the rules are manageable once attorneys understand the basic framework. We’ve addressed many of the most common questions about freelance lawyers—conflicts, client disclosure, fee structures, and malpractice coverage—in our article, “The Ethical Maze of Freelance Lawyering: What Are the 8 Rules Attorneys Can’t Ignore?”
Below are eight practical do’s and don’ts to keep in mind when working with freelance lawyers.
Don’t List Your Freelance Lawyer on Your Firm Website
Freelance lawyers generally work behind the scenes and are not members of your firm. Listing them on your website—particularly as “of counsel”—can unintentionally create conflicts-of-interest issues or imply a closer affiliation than intended, and it may mislead the public.
Conflicts rules apply regardless of whether a lawyer is a partner, associate, or temporary contract attorney, so firms should take care not to create relationships that trigger imputed conflicts across multiple clients or matters.
Public perception matters. While it may be an appealing method to attract potential clients, don’t hold a freelance attorney out to the public as an associate or a member of your firm when that is not an accurate reflection of the relationship.
See To Be or Not to Be Of Counsel and How Can a Law Firm Avoid Conflicts of Interest When Outsourcing to a Freelance Lawyer?
Do Consider Using an Out-of-State Lawyer for Behind-the-Scenes Drafting
Many firms hesitate to use freelance lawyers who are licensed outside their jurisdiction. However, behind-the-scenes legal research and drafting performed under the supervision of the hiring attorney is generally permissible.
The key ethical concern is avoiding aiding and abetting the unauthorized practice of law, which means the hiring lawyer must remain responsible for the work and maintain proper supervision.
Some hiring attorneys mistakenly believe that in-depth, state-specific, procedural knowledge is required in order to draft documents. This is rarely the case. All attorneys must consult local rules when drafting. Limiting to only local attorneys rarely saves time, and it dramatically reduces options.
Don’t Submit a Freelance Lawyer’s Work Without Reviewing It
Freelance lawyers can produce excellent work, but the hiring attorney remains responsible for the final product submitted to the client or the court.
Attorneys have a nondischargeable duty of competence and supervision, which means reviewing and ensuring the accuracy and quality of work before filing or sending it out.
The hiring firm’s name is on the document and ultimately must stand behind it.
See Can a Hiring Lawyer Discharge His or Her Duty of Competence by Hiring a Freelance Attorney?
Do Understand That You Can Profit from a Freelance Lawyer’s Rate
Some attorneys worry that charging a client more than the freelance lawyer’s hourly rate is unethical. In most situations, it is permissible for the law firm to charge a higher rate so long as the total fee charged to the client is reasonable.
This practice is often described as “upcharging” or making a profit off the freelance lawyer’s rate, and it is generally allowed under the professional responsibility rules governing attorney fees.
Do ensure you’ve provided your clients with your firm’s rate structure in your engagement letter.
See Is a Law Firm Allowed to Make a Profit Off a Freelance Attorney’s Rate?
Don’t Assume You Must Always Tell the Client
Lawyers sometimes believe they must automatically disclose every instance of using a freelance lawyer. In reality, the duty to inform the client depends on whether the freelance lawyer’s involvement is considered a “significant development” in the representation.
Factors such as the scope of the work and the client’s expectations determine whether disclosure is required.
Do, however, include a provision in your engagement letter indicating that your firm may work with outside legal consultants and/or contract attorneys at the firm’s discretion.
Do Limit Client Information to What the Freelance Lawyer Needs
Lawyers have an ongoing duty to maintain client confidences, even when outsourcing work.
One practical way to manage this duty is to share only the information necessary for the freelance lawyer to complete the assignment, reducing the risk of imputed conflicts of interest or unnecessary disclosure of confidential information.
Don’t Worry That You Are Fee-Splitting
Another common misconception is that using a freelance lawyer automatically creates impermissible fee-splitting.
In most freelance relationships, the hiring law firm is obligated to pay the freelance lawyer regardless of whether the firm ultimately collects payment from the firm’s client. The firm pays the freelance lawyer and bills the client for the legal services, which is generally not considered fee-splitting under the rules governing attorney compensation.
Do Check with Your Malpractice Carrier
Finally, attorneys sometimes wonder whether freelance lawyers are covered under their firm’s malpractice insurance.
Coverage varies by policy, so the safest approach is to contact your malpractice carrier to confirm how freelance lawyers are treated and whether additional coverage is advisable. Be aware that brokers often request that freelance carry their own coverage without fully grasping the nature of the relationship. If your broker insists that a freelance lawyer carry an independent policy, request to speak with someone else willing to understand that everything is under the hiring firm’s signature, and that the contract lawyer will not have an independent engagement with the firm’s client to trigger coverage.
See What California Law Firms and Freelance Lawyers Should Know About Malpractice Insurance
The Bottom Line
Freelance lawyers can dramatically improve a firm’s efficiency, flexibility, and capacity. By understanding the ethical framework—conflicts, competence, confidentiality, client communication, fees, and malpractice coverage—law firms can confidently integrate freelance lawyers into their practice.
For a deeper dive into these issues, see the Montage Legal Group article “The Ethical Maze of Freelance Lawyering: What Are the 8 Rules Attorneys Can’t Ignore?” which outlines these ethical considerations in greater detail.
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