Ethics Series Part 1: Managing Current and Future Conflicts of Interest When Hiring Freelance Attorneys

In this economic climate, law firms are paring down the number of new hires each year and managing their caseload with a very lean workforce. When cases heat up unexpectedly or when a law firm accepts a complicated new case, the firm may seek immediate outside assistance. Emerging trends in hiring show that freelance attorneys are often hired to fill in these gaps, which quickly leads to questions on how the ethical rules on conflicts of interest apply to this temporary contractual relationship. One of the most common questions freelance attorneys are asked is how can the law firm, together with the freelance attorney, manage current and future conflicts of interest. The Minnesota Rules of Professional Conduct (MRPC) do not include specific rules or references regarding the hiring of contract or freelance attorneys. But the customary duties and ethical obligations of an attorney set forth in the MRPC still apply to a freelance attorney as well as to the law firm that has the direct contact with the client. To comply with the MRPC and ensure that no conflicts exist when the law firm hires the freelance attorney and that all potential future conflicts are easily identifiable, the law firm should require that all its freelance attorneys keep accurate records of projects they work on. It is especially important for freelance attorneys to fulfill their obligation to keep accurate records for conflict checks because freelance attorneys often work for more than one firm. A freelance attorney should include all projects on which that attorney works for any law firm in any capacity in the freelance attorney’s conflicts log. To avoid imputing knowledge of other matters or other clients of the firm to the freelance attorney, case information provided to the freelance attorney by the firm should be limited in scope. Both the law firm and the freelance attorney benefit...

Improving Your Bottom Line: Cost Savings from Hiring a Freelance Attorney

You’re a busy attorney suddenly overwhelmed by a temporary increase in workload. You need help from a licensed attorney and you are deciding between hiring an employee and contracting with a freelance attorney. How will going with a freelancer improve your bottom line? To start with the most obvious cost savings, by hiring a freelance attorney on an as-needed basis, you are not committing to paying a regular salary. You can contract with a freelance attorney as much or as little as you need, depending on your workload at any given time. In addition, hiring a freelance attorney—who in most cases is properly classified as an independent contractor—results in cost savings on taxes, insurance, and benefits. You can contract with a freelance attorney for temporary assistance without being responsible for expenses associated with employees but not independent contractors, such as payroll taxes, workers compensation coverage, unemployment insurance, health insurance, and other employment benefits. You will not need to provide sick or vacation time. You will also save on office overhead. When using a freelance attorney, you generally will not need to provide office space, equipment, legal research resources, or support staff. A freelance attorney often prefers to work in his or her own office, and therefore will usually be equipped to handle projects without relying on resources from your office. A freelance attorney can meet in your office for important case meetings, but otherwise will not use your space or amenities. By using a freelance attorney, you can access much-needed help when workload gets heavy without committing to the numerous expenses associated with hiring a permanent employee. Watch for part two of this series, which will address other ways that using a freelance attorney can increase your profits. Effective June 1st 2016, Lynn Walters is no longer accepting assignments as a freelance attorney. Lynn’s new company, Blackstock Walters, LLC,...

How To Talk To Your Clients About Freelancers

Lawyers considering whether to bring in a freelance attorney may reasonably wonder: Is this something my client needs to know about? The short answer: Yes. Although an early ABA ethics opinion suggested disclosure was not required for attorneys working under your direct supervision, more recent guidance, including 2012 amendments to the comments of the ABA Model Rules of Professional Conduct, makes clear that work with independent attorneys such as freelancers should ordinarily be disclosed to the client. Disclosure is always required if freelancers will receive confidential information, and clients must agree to any arrangement in which freelancers’ charges are billed to the client as legal fees rather than costs. So when to talk about it? Ideally when the attorney-client relationship starts. Your engagement letter already discusses fees, costs, and the scope of work. Try adding a paragraph allowing you to propose outsourcing in appropriate circumstances. What to say? A few key points: Once the case begins, you may see a chance to save the client time and money by working with a freelance attorney you trust If so, you’ll identify the person, propose the project, and suggest a billing arrangement, all of which are subject to client approval Once approved, you’ll disclose the parties’ names for conflict checking If no conflicts exist, you’ll disclose limited confidential information as needed to complete the project, which the freelance attorney will keep confidential At all times you will supervise the freelance attorney’s work and take full responsibility for it A little time going over this at the outset makes it easier to revisit the issue when the discovery requests hit the fan. Have you ever wondered about hiring a freelance attorney for a client’s project, but then…didn’t? Please tell us in the comments—what held you back? Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

Freelance Attorneys as Independent Contractors in Minnesota

One important consideration for both freelance attorneys and the attorneys who hire them is whether a freelance attorney will work as an independent contractor or an employee. Under most circumstances, a freelance attorney should be classified as independent contractor pursuant to Minnesota Rule 5224.0210. In this rule, the Department of Labor and Industry set forth criteria for classifying the work of “professional persons”—including attorneys—as independent contractors. Freelance attorneys fulfill the six listed criteria as follows: Freelance attorneys set up their own businesses (sometimes in combination with a solo practice), complete with a business name, cards, and a variety of marketing paraphernalia. When needed, freelance attorneys hire qualified people for assistance with their work. Freelance attorneys acquire and pay for business-related accoutrements like office space, license fees, communication technology, and legal research resources necessary to complete freelance assignments. Freelance attorneys market their services to others in the greater legal community, including solo practitioners, law firms, and in-house legal departments. The cornerstone of freelance work is flexibility and control. Freelance attorneys have the freedom to focus on work that interests them and complete assignments within their own schedules and availability. Freelance attorneys must find their own work and maintain relationships with a variety of clients, otherwise they have no business, reputation, or income. The classification of a freelance attorney as an independent contractor benefits both sides: the hiring attorney does not pay employment taxes or benefits, and the freelance attorney maintains control over the work assignments and scheduling. The terms of this relationship are usually spelled out in writing: at the start of a new project, most freelance attorneys enter into a freelance work agreement with the hiring attorney. This written agreement not only provides both sides with clarity regarding rates and terms, but also establishes a framework for the entire arrangement that supports classifying the freelance attorney as an independent...

MFAN members travel to Duluth

MFAN members Karin Ciano, Emerald Gratz, and Lynn Walters traveled to Duluth earlier this week to attend Minnesota CLE’s 2013 Strategic Solutions for Solo and Small Firms Conference. The conference was quite well attended with over 400 attorneys, and it offered relevant and informative plenary sessions, breakout sessions on a variety of topics, bonus materials and prizes, as well as the opportunity to connect with other attorneys. We all enjoyed seeing old friends and meeting new ones during the events, which lasted Sunday evening through Tuesday afternoon. While at the conference, we shared information about our group with many colleagues and gave out customized pens to spread the word about our new website. If you found this site after meeting us or hearing about our group in Duluth, welcome and thank you so much for taking a look. We hope you will visit us again soon. Please look for a new substantive post before the end of the week. Effective June 1st 2016, Lynn Walters is no longer accepting assignments as a freelance attorney. Lynn’s new company, Blackstock Walters, LLC, offers litigation support services such as legal research, motion preparation, and document summaries on a project basis. MFAN Bio | Email | Web | LinkedIn | MFAN...

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