How Freelance Legal Work Can Be Handled Ethically

By Kathleen Lynn

How Freelance Legal Work Can Be Handled Ethically

1.24.2022

By Kathleen Lynn

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If a law firm pays a contract lawyer $125 an hour to write a brief, can the firm ethically bill the client $300 an hour for that lawyer’s time?

That’s the kind of question that can arise when law firms use freelance or contract lawyers, according to Claude E. Ducloux, director of Education, Ethics and State Compliance at LawPay and former chair of the Texas Center for Legal Ethics. Ducloux gave a talk on the ethics of freelance hiring Monday as part of the New York State Bar Association’s Annual Meeting.

The answer to the billing question is no, Ducloux said. Most ethics rulings have found that it’s OK to add a surcharge to reflect the hiring firm’s overhead and its work supervising the contractor, he said. “But to double it  – that’s probably unethical,” he said. “And you have to tell your client if they ask how much you paid the lawyer.”

Freelance work can have benefits for hiring firms, offering them help or specialized expertise on a given case without committing to a new employee. For contractors, freelancing lets lawyers work flexible hours, which can be valuable to those with young children or other family obligations, Ducloux said.

But, he said, both hiring firms and freelancers should protect themselves by signing a contract spelling out the scope of the work, as well as specifying that the freelancer is an independent contractor.

“If you are a freelance lawyer, you need to very carefully define what the scope of representation is,” he said. And he advised freelancers to make their bills very detailed to protect against fee disputes. “You get to tell the story of what you did through your billings,” he said. In addition, he said, freelancers should ensure that the agreement provides that they will be paid for their work, no matter how the case is resolved.

Freelancers have attorney-client relationships with the underlying client, and they are bound by the rules of confidentiality, Ducloux said. He advised both hiring firms and freelancers to make sure the freelancer has no conflict of interest involving another client.

Ducloux also advised freelancers to have malpractice insurance, and said they can often be added to the hiring firm’s insurance policy. And he advised freelancers to be very cautious about charging a flat rate for their services, because sometimes there’s more work than expected.

“It is a real danger to try to do a flat rate agreement, unless you really know what you’re talking about and you write down the services that will be covered – with the implication that additional services are not included in the price,” he said.

He also advised hiring firms to tell their clients if they use freelance lawyers. “Why would you not want to do that?” Ducloux asked. When he uses a freelancer, he discloses to the client how much he is paying for those services, he said.

Other advice for hiring firms: Evaluate the freelancer’s education and experience. Make sure their license is in good standing. Check references. Ask about any possible conflicts. Clearly communicate, in writing, the responsibility for deadlines, filings and so on. Be available for a freelancer’s questions.

Ducloux closed by reminding the audience of the need for lawyers to stand up for justice and democracy.

“It’s our job as defenders of the rule of law to support the fair administration of justice, make sure that people understand that the judiciary is the third branch [of government] and speak out as true professionals,” Ducloux said. “We have to continue this wonderful experiment in democracy, and the only ones who can help us through it are you, the members of the legal profession.”

 

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