Free Report: Why Outsourcing Works
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Free Report: Why Outsourcing Works

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This free guide details the reasons why outsourcing legal work to a freelance attorney makes sense for solos and small law firms.

This free guide details the reasons why outsourcing legal work to a freelance attorney makes sense for solos and small law firms.

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Free Report: Why Outsourcing Works Free Report: Why Outsourcing Works Document Transcript

  • jim@USLegalWriting.com Is Outsourcing to a FreelanceAttorney an Option? What’s In It for YOU?Crucial Questions & Answers
  • 2If you’re reading this report, you’re probably already thinkingthat some temporary, specialized legal help for your practicewould be a good thing. Maybe you’ve had some of thesethoughts (maybe all of them): “I have two hearings this week and a trial brief due in a third case on Friday. There’s no way I can do it all, even if I give up eating and sleeping. “ “I need to work on the brief in the Smith case, but I really don’t want to. I’d much rather get ready for trial in the Jones case. It would be really fantastic if I could get somebody good to do this brief.” “My client base is growing, I’m getting more and more work, and I really need some help; but I don’t want the cost and responsibility of bringing in an associate.”If these concerns are familiar to you, you’re not alone. There are few solo orsmall firm lawyers who don’t face these issues on a regular basis. In my earlyyears as a solo, I dealt with them constantly. Unfortunately for me, in those days(the mid ‘80s) freelance lawyers were not available. If they existed at all backthen, they kept themselves well hidden and I didn’t hear about them. As my solopractice took off, I found that I had only a couple of choices, neither of thempleasant:www.USLegalWriting.com 207-701-1393
  • 3 I could just keep grinding out the hours (often 50 or 60, sometimes 70+ hours per week), and let all those extra hours • take me away from my family life, • obliterate my leisure time, and, over the long haul • wear me down physically and mentally. Or, I could bite the bullet, bring in another lawyer, and accept the inevitable expense, uncertainty and additional responsibility associated with hiring a new, full-time professional.Today, there’s a third choice. Today a solo or small firm attorney can • Respond to a growing client base or a spurt in client activity, • Provide more services, • Focus on more satisfying work, • Make more money,and do it all without the necessity of hiring an associate or bringing in morepartners.The solution: Find yourself a freelance lawyer.OK, so you’re thinking about it. Sure, it sounds good, and it would be nice to getsome relief from the pressures of your practice. But should you do it? Should youactually hire a freelance attorney? Probably. But if you’re a good lawyer, you liketo think things through before you take a major step, especially when it comes toproviding services to your clients. Here are some FAQs and answers that shouldhelp you decide whether hiring a freelance lawyer is right for your practice.Question 1: First things first--Is this really an option?Answer: This question is really several questions: Is it legal? Is it ethical? Is itOK with the American Bar Association? Do the Model Rules of ProfessionalConduct allow it? The answer to all of the above is Yes.www.USLegalWriting.com 207-701-1393
  • 4On August 5, 2008, the ABA’s Standing Committee on Ethics and ProfessionalResponsibility released Formal Opinion 08-451, entitled “Lawyer’s ObligationsWhen Outsourcing Legal and Nonlegal Support Services.” You can read it here:http://www.aapipara.org/File/Main%20Page/ABA%20Outsourcing%20Opinion.pdfAmong other things, this opinion recognizes three facts about outsourcing: • Law firms often hire lawyers as independent contractors to provide a wide variety of legal services. These include legal research, drafting of legal documents, and development of legal strategies in ongoing litigation. This is a growing trend. • Because the costs of legal services vary greatly from region to region, outsourcing can reduce what a hiring firm must pay for legal services, and in turn, what that firm must charge its clients. • Outsourcing allows a lawyer to provide labor-intensive services on a case- by-case basis without the necessity and expense of maintaining the extra staff the rest of the time. This enables solo and small firm attorneys to be more competitive in the law services marketplace.The Standing Committee said that “There is nothing unethical about a lawyeroutsourcing legal and nonlegal services, provided the outsourcing lawyer renderslegal services to the client with the ‘legal knowledge, skill, thoroughness andpreparation reasonably necessary for the representation,’ as required by Rule1.1.”And what if the freelance attorney is not admitted to practice where the hiringlawyer or firm is located? Is this a problem? The short answer is no, as long asthe freelancer will not be appearing in court, signing pleadings, or renderingadvice directly to the client (is limited to “in house” services). It is obvious thatthe ABA’s Ethics and Professional Responsibility committee put a lot of thoughtinto Formal Opinion 08-451. It is equally obvious from a reading of the entireopinion that the committee understood very well that often freelance lawyers liveand practice in jurisdictions far removed from the hiring attorney’s home base.This clearly is OK, as long as the hiring lawyer exercises supervision over thefreelance lawyer and maintains direct responsibility to the client. Specifically, thecommittee said thatwww.USLegalWriting.com 207-701-1393
  • 5 “Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the [hiring] lawyer remains responsible for the work being performed and that the [freelance lawyer] is not held out as being a duly admitted lawyer [in the hiring lawyer’s state].”Formal Opinion 08-451. So there you have it. Outsourcing to a freelance attorneyis an accepted practice; and as long as the freelancer limited to “in house”activities and services, it doesn’t matter where they are. Not only is it ethicallyand professionally just fine; it’s a very good way to improve client services andreduce costs at the same time.Question 2: What exactly is a freelance lawyer anyway?Answer: Generally, the term “freelance lawyer” (or “freelance attorney”)means an attorney (a person who has a JD) who provides specialized servicesdirectly to practicing lawyers or law firms and not to the general public. Thisbroad definition generally does not include lawyers who provide their servicesthrough employment agencies. These folks are usually called “contract”attorneys, to distinguish them from those of us who work alone, and deal directlywith hiring attorneys or firms without using an agent or other intermediary. Inthis report, the term “freelance attorney” refers to the independent contractor,not to the lawyer who works through an agency.Question 3: What’s the difference between hiring a freelancelawyer and a new associate?Answer: There are several differences. • First, a new associate must be admitted to practice in the jurisdiction where the law firm is situated. The freelance lawyer doesn’t have to be admitted locally, and usually isn’t. This is because the freelance lawyer’s responsibility is to the hiring firm, not to the firm’s clients. • Second, a new associate is an employee; the freelance lawyer is not. With the freelance lawyer, there is no obligation to withhold wages or pay Socialwww.USLegalWriting.com 207-701-1393
  • 6 Security or Medicaid. You don’t pay for health coverage, you don’t contribute to a retirement plan, you don’t provide any benefits at all. You pay the freelance lawyer a professional fee, not a salary. • Third, you don’t provide the freelance lawyer with any resources--no support staff, no office furniture, no phone line, no computer, no online research subscription--nothing. The freelance attorney normally works at some distance from the hiring firm’s office (often a great distance), and supplies himself with everything necessary to provide the services he offers, including his own research resources. He does not (or shouldn’t) pass any of his operating expenses through to the hiring firm. He pays these expenses himself out of his fee. • Finally, when you hire an associate, your obligation to pay a salary and provide for benefits and support resources continues indefinitely. So does your obligation to supply the associate with work to do (at least in the beginning). In stark contrast, when you hire a freelance lawyer, your obligation begins and ends with the project as you define it at the time of engagement. When the project is over, the relationship ends. Of course, if you are happy with a freelance lawyer’s services and choose to engage him more than once, you are free to do that; but these engagements are nothing more than a series of discreet contracts for independent services. They don’t create a continuing relationship.Question 4: What services do freelance lawyers provide?Answer: Generally, freelance attorneys are available to do the “in house” workthat is so time consuming, and yet is so crucial to effective advocacy. Typicaltasks include • Legal research, • Legal memoranda, • Appellate and trial briefs, • Motions, • Discovery requests and responses.The extent of the research can vary with the assignment. If you’re in the middleof trial and a legal issue arises on which you need help, you might engage awww.USLegalWriting.com 207-701-1393
  • 7freelance lawyer to do a quick review and find the cases you need on short notice.Or, if there is more time, you might ask the freelance lawyer to do thecomprehensive research necessary to support a dispositive motion.The extent of involvement in the written product can vary as well. If you’re agood writer and you have the time, you might choose to draft your argumentsyourself, using the freelance lawyer primarily as a researcher. If you are short oftime, and you believe the freelance lawyer is up to the task, you might ask for afinished appellate brief, ready for your final review and signature.If you happen to be dealing with a freelance lawyer who has substantial practicalexperience as a practicing attorney, you might also involve him in strategic andtactical planning in a given case. If the experience is there, you might as well useit.Question 5: Do I have to tell my client that I’m using afreelance lawyer?Answer: It depends on what you’re asking the freelance lawyer to do. If all youneed is some legal research on an issue that you can clearly define withoutdisclosing any personal information about your client (if all you’re doing is posinga hypothetical), then the answer is no. If, however, you disclose informationabout the client that would normally be covered under your state bar’sconfidentiality rules, then the safe answer is yes.It makes sense to err on the side of caution here, and whether it creates aproblem with your client will depend on who you hire. If you make sure tocontract with an attorney who has the experience and expertise necessary to dothe work required, and whose rates are reasonable, then disclosure should onlystrengthen your relationship with your client. It is a rare client who will object tothe use of a freelance lawyer if they know that the lawyer is well qualified andthat the cost will be less than if you did all the work yourself.www.USLegalWriting.com 207-701-1393
  • 8Question 6: Can I make a profit on the freelance lawyer’swork? If the answer is yes, is that fair to my clients?Answer: The answer to this question is probably yes, depending on where youpractice. Most state bar associations that have issued an opinion on this questionare consistent with the ABA’s 2008 Formal Opinion 08-451, which expresslyallows it. One state that does not allow it, at least for now, is Texas. TheProfessional Ethics Committee for the State Bar of Texas issued Opinion No. 577in March of 2007, and in that opinion the committee expressly barred a hiringfirm or lawyer from adding any profit to a fee paid to a freelance lawyer. You canread that opinion here. http://www.solosmallfirm.com/files/Ethics_Opinion_577.pdf. Itis worth noting that this opinion predates the ABA pronouncement on the issue;but given the reasoning of the opinion, it might not be any different if it wasissued today.Regardless of where you practice, before you add any profit to a freelancelawyer’s fee you should satisfy yourself that your state has (1) issued an ethicsopinion consistent with ABA Opinion 08-451, or (2) has no opinions on the booksthat are inconsistent with it.Is it fair to your clients? Absolutely. One very important aspect of the hiringlawyer/freelance lawyer relationship is that the hiring lawyer maintainsresponsibility to the client for the freelance lawyer’s work. There will necessarilybe some degree of oversight and supervision. At the very least the hiring attorneyalways will read the product carefully, analyze the arguments presented, andmake an independent judgment whether the work meets her standards. Inmaking this independent judgment, and in accepting the risk that this judgmentmight be wrong, the hiring lawyer earns and justifies any reasonable profit madeon the freelance lawyer’s work.There is another way to look at this that argues for adding profit. If the freelancelawyer is not a member of the bar in your state, then he or she is a nonlawyerprofessional—in essence an extremely highly qualified paralegal. Everyoneunderstands that paralegals are not paid the $70 to $100 per hour that clients areroutinely charged for their work. Paralegals don’t make that kind of money, evenwith retirement and benefits thrown in. The difference between the totality of aparalegal’s pay and the reasonable rate charged for his work is profit, and no onewww.USLegalWriting.com 207-701-1393
  • 9objects to it. The same analysis and set of expectations should apply to workperformed by a freelance lawyer. Of course, you must bill the freelance lawyer’swork to your client as a professional service, and not as a business expense. Ifmoney you pay to the freelance lawyer shows up in the “expenses” section ofyour bill, no add-on or premium is permitted.Question 7: What should I look for in a freelance attorney?Answer: You want to know that your freelance lawyer is • Competent in research and writing, • Experienced, • Admitted to practice in at least one state, • Covered by a malpractice policy, and • Has access to first rate legal research resources.Research And Writing Skills. You should be satisfied at the outset that yourfreelance lawyer has the professional skills to do the work you need. Todetermine this, start with the writing samples. Any freelance lawyer should havea website that prominently features samples of that lawyer’s written work.Review these samples carefully. Satisfy yourself that they meet the qualitystandard that you expect. Ask yourself these questions: Are the issues clearlystated? Are the arguments sound? Is the language lean and grammaticallycorrect? Are facts stated objectively and argued fairly? Are cited authorities onpoint? These are threshold concerns. If the answer to any of these questions isno, then don’t contact that lawyer. If the samples don’t measure up, thenchances are the work you can expect to receive won’t either.Experience. Of course, it’s a given that a freelance lawyer must have somehistory as a researcher and writer; but some practical experience representingprivate clients can be invaluable. Your freelance lawyer is probably going to bepreparing written material that your clients will see and that you will have topresent or defend in court. If your freelance lawyer has herself represented manyclients over a period of years, she is more likely to prepare written work that yourown client will understand and approve. Why? Because she will have aninstinctive feel for client expectations and sensibilities. If your freelance lawyerhas himself appeared in court countless times to argue his own motions andbriefs, he is more likely to prepare work that your own judge will find persuasive.www.USLegalWriting.com 207-701-1393
  • 10Why? Because he knows from his own experience what judges are looking forand how they think. If your freelance lawyer has this kind of practical experience,it can only improve the quality of the work you’ll receive.Bar Admission. Ask if the freelance lawyer is admitted to practice in any state. Ifso, is she a member in good standing of the state bar? Has her conduct ever beenthe subject of any disciplinary proceeding? Asking these questions isn’t prying;it’s just the exercise of ordinary due diligence. You have a right to know if thelawyer you are about to hire has mustered the discipline and commitmentnecessary to prepare for and pass a bar exam. If she has, she is more likely toassess accurately the task you define and assign the time and resources necessaryto complete it properly and on time. As to professional conduct, if any protectedclient information is to be shared with the freelance lawyer, you want to knowthat the person you’re hiring will keep it safe.Errors And Omissions Coverage. Any lawyer you’re thinking of hiring on afreelance basis should have malpractice coverage. “Why?” you might be asking.“Isn’t it true that the hiring lawyer bears the risk of a claim made by the privateclient?” Yes, that’s true; but if your client sues you for a problem created by yourfreelance lawyer that you didn’t catch, you might want to look for a little helpfrom your freelance. Even if you don’t, your carrier might. The fact that yourfreelance lawyer has taken the precaution of getting coverage also tells yousomething about that lawyer--you’re dealing with a careful person.Research Resources. Finally, of course, the freelance lawyer must have access toan online legal research plan (as a practical matter, either Lexis/Nexis orWestlaw). In the alternative, he should have regular access to a fully-stocked lawlibrary of the kind you would expect to find at an accredited law school or a statesupreme court. The cost of access to these resources should be his businessexpense. He should not pass this cost through to the hiring attorney.www.USLegalWriting.com 207-701-1393
  • 11Question 8: I get that it’s OK to hire a freelance lawyer, and Isee how to go about it. But should I do it? What’s in it for meand my clients?Answer: Unless you don’t have enough work to keep yourself busy, you (andyour clients) can benefit if you hire a freelance lawyer. The reasons why comeunder three headings—time, money, and quality of services.You’ll Buy Yourself Some Time: If your deadlines are stacking up, you’re feelingthe pressure. To some extent, this is a natural condition for the solo and smallfirm lawyer, but it doesn’t have to be overwhelming. If you don’t have enoughtime to meet all your deadlines and submit your very best work in each and everycase, hiring a freelance lawyer can be the answer. If you bring in a freelancelawyer to handle all or part of a looming project, you can get control of yourschedule.You’ll Make More Money: Any freelance lawyer you hire should bill at a ratebelow your own. Depending on where you practice, you’re probably entitled toadd on a premium as your profit. This is entirely fair, as long as the amount youcharge your client for the service is reasonable. Why? Because you are takingresponsibility for the freelance lawyer’s work. You are exercising your ownprofessional judgment when you use that work, and you are taking theprofessional risk that your judgment might be wrong. You are entitled to areasonable profit.You’ll Improve the Quality of Client Services: If you have two projects loomingand not enough time to deliver your best in both, chances are that in the end youwon’t be happy with the final product in either. If you bring in a freelance lawyeron one of the projects, two good things will happen. First, you’ll have more timeto spend on the project you keep for yourself and the final product will be better.Second, a highly trained professional (your freelance lawyer) will spend the timenecessary to complete the other project according to your standards, and thatproduct too will be improved.www.USLegalWriting.com 207-701-1393
  • 12Final Question: Great, I’m convinced. What do I do now?Answer: This answer is the easiest yet. Call me at 207-701-1393. We can talkabout your project for free. If you don’t have time to talk, or if it’s getting late inthe evening (hint--If you’re working past midnight, you definitely need my help),you can fill out the form on my website. Just go to www.USLegalWriting.com andyou’ll find the form on every page. Tell me a little about your project, leave yourname, number and email, and I’ll be in touch with you in very short order. You’realso welcome to email me directly at jim@USLegalWriting.com, or write to me atthe address below. Regardless of how you contact me, I’ll review your projectquickly (at no charge to you) and together we’ll determine if I can help. I lookforward to hearing from you soon. USLegalWriting.com jim@USLegalWriting.com 7 Narrows Lane, Cushing, ME 04563 207-701-1393www.USLegalWriting.com 207-701-1393