Ethics Series Part 2: Informing Clients When Hiring Freelance Attorneys
As part of MFAN’s continuing discussion on potential ethical issues involved in the hiring of freelance attorneys, we next turn to the question of when must a law firm inform the client that a freelance attorney is assisting on its legal matters. At first glance, this seems like an easy question. After all, law firms routinely assign work to multiple associates within their firms and do not notify clients of these assignments in advance. But disclosing confidential information to outside counsel implicates an issue of confidentiality, which may require consent of the client.
Attorneys are required to keep their clients informed of how their cases are being managed. Specifically, Rule 1.4(a)(2) of the Minnesota Rules of Professional Conduct (MRPC) requires that “a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” But according to Eric Cooperstein, keeping the client informed about the hiring of a freelance attorney “is more about confidentiality than it is about the more general guidelines of Rule 1.4.” Mr. Cooperstein is a former Senior Assistant Director of the Minnesota Office of Lawyers Professional Responsibility, whose current law practice is devoted to advising attorneys on ethical issues. “This is really an issue of confidentiality,” stated Cooperstein in a recent interview about potential ethical issues implicated in the hiring of freelance attorneys.
Attorneys are permitted to share confidential information with others if the client “gives informed consent.” MRPC 1.6(b)(1). In addition, a lawyer is allowed to disclose confidential information if the lawyer “reasonably believes the disclosure is impliedly authorized in order to carry out the representation.” MRPC 1.6(b)(3). In our interview with the ethics maven himself, Mr. Cooperstein stated that the law is not clear whether hiring a freelance attorney is more like sharing information with an associate within the firm or whether it is more like disclosing confidential information to a stranger. Mr. Cooperstein advised that the safest course is to include a provision in the retainer agreement that puts the client on notice that as the need arises, confidential information may be shared with freelance attorneys. Obtaining a client’s consent in this way, he indicated, keeps the law firm in compliance with both Rules 1.4 and 1.6.
Thus, obtaining the client’s consent in the retainer agreement is the best way to ensure that your client understands how the law firm plans to manage its legal matters, which may include hiring freelance attorneys and sharing confidential information with them.
Stay tuned for future posts on how to ensure that freelance attorneys are covered by malpractice insurance and how a law firm can bill its client for the work performed by a freelance attorney.
5 Responsesto “Ethics Series Part 2: Informing Clients When Hiring Freelance Attorneys”
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Very nice post, Susan! The suggestion to include the possibility of using a freelancer in new client retainer agreements is a great one. If work on a case picks up unexpectedly, though, the client’s informed consent to use a freelancer and disclose necessary information can be obtained in the middle of a client relationship as well. Would you agree?
Lynn, thank you for your comment and question. And yes, I agree with you that a lawyer may obtain a client’s informed consent at any time during the representation as long as the consent is provided before confidential information is shared. The suggestion that notice be provided to a client in the retainer agreement of the potential use of a freelance attorney is just one way to stay in compliance with the Rules of Professional Conduct.
Great post Susan – glad to have HCBA President Eric Cooperstein’s perspective on freelancers!
Lynn raises a valid point – many freelance jobs come up on the spur of the moment. It’s my understanding that client consent can be obtained at any point before confidential information is shared, do you agree? Alternatively, I suppose a project could be structured so that no confidential information would need to be shared (such as a research into a hypothetical question).
At today’s MFAN meeting, I’ll share the disclosure clause and outsourcing clause that I use in my own engagement letter – I welcome everyone’s comments and feedback!
What about rule 1.5(e)? Is it not implicated when an attorney outside a firm does project work for the firm?
April, Rule 1.5(e) typically applies to contingency fee arrangements between a referring attorney and a litigation specialist. It also applies to situations where attorneys from separate law firms, because of their particular expertise, work together on a case and bill the client in one bill. In this situation, both attorneys are making strategic decisions on the case and working directly with the client. In the typical freelance relationship, however, the freelance attorney works under the direction of the client’s attorney, has minimal contact with the client and does not make strategic legal decisions in the matter. Consequently, a true freelance relationship does not trigger Rule 1.5(e).