Your law practice is super busy, which is great, but you are feeling overwhelmed and stressed. You need help with your legal work, but you don’t need full time assistance, so you are considering hiring a freelance lawyer to assist you on an as-needed basis.
What do you need to tell your clients? Do you need your client’s consent? What other obligations do you have to your clients?
Below are three important considerations to keep in mind when engaging the services of a freelance lawyer.
1. Duty of Confidentiality
First, client confidentiality is a key ethical concern for all lawyers. If you engage the services of a freelance lawyer to assist you with your files, you will be divulging confidential client information to that freelance lawyer. What are your professional obligations to maintain your duty of confidentiality while using a freelance lawyer?
The Model Code of Professional Conduct by the Federation of Law Societies of Canada (upon which the provincial law societies rules or codes of conduct are based) states that a “lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless . . . expressly or impliedly authorized by the client . .”
In the commentary to the rule, it states that in some cases the authority of the client to disclose confidential information may be inferred, and that it is implied that a lawyer may, unless the client directs otherwise, disclose the client’s affairs “to partners and associates in the law firm and, to the extent necessary, to administrative staff and to others whose services are used by the lawyer.” Arguably, freelance lawyers would fall under this category.
While there is little commentary by Canadian regulators regarding the use of freelance lawyers, the American Bar Association has provided two relevant opinions on this topic (1). In summary, the ABA confirms that a law firm need not necessarily obtain express client consent when working with closely managed freelance lawyers who are supervised directly by a lawyer or lawyers at the firm. This is in line with the commentary above in the Model Code that the client provides implied consent.
However, to be extra sure, some lawyers include a clause in their retainer agreement or engagement letter regarding the potential use of freelance lawyers. This clause explains that, from time to time, in order to keep legal costs down, they may employ the use of a freelance lawyer and that the client consents to their information being disclosed to the freelance lawyer for that purpose. This is seldom an issue for clients as clients are happy to hear that their lawyers are seeking ways to minimize their legal fees. (If you would like to see a sample clause for your retainer, please contact us.)
2. Avoidance of Conflicts of Interest
Another consideration to keep in mind is a lawyer’s duty to avoid conflicts of interest (2). When engaging a freelance lawyer ensure the freelance lawyer completes a conflicts check at the beginning of a freelance project (although a conflicts check may not be necessary if the freelance lawyer is simply completing generic legal research without specific client information). Also, to minimize the possibility of a potential conflict of interest, it is wise to only allow the freelance lawyer access to the file (or files) that they are directly working on and not all of the files of the firm.
3. Reasonable Legal Fees
An overarching principle and governing rule regarding legal fees charged to clients is that those fees must be “fair and reasonable” (3). While lawyers may mark up a freelance lawyer’s fees when billing their work out to the end-client, it is important to keep those fees “fair and reasonable” based on the difficulty of the work undertaken, skill level required, time and effort spent, results achieved, etc. Read our blog post for more guidance on marking up a freelance lawyer’s fees.
Take-Away: Hire Qualified Freelance Lawyers
While it is important to supervise any freelance lawyer you may engage, it is also important to hire a qualified freelance lawyer that you can trust. Before hiring a freelance lawyer, ensure that they are in good standing with their provincial law society, ask for and review their CV and a writing sample, check references, and conduct a thorough interview. Too busy to do this vetting? Flex Legal vets all of our freelancers in our network so you don’t have to.
Ultimately, when outsourcing client work to a freelance lawyer, you want to know that that lawyer will be mindful of the considerations set out above and will do an excellent job for your client.
1. See ABA Ethics Opinion 88-356 and ABA Ethics Opinion 08-451.
2. See Rule 3.4-1 of the Federation of Law Societies of Canada’s Model Code of Professional Conduct (and the corresponding provincial rules/codes).
3. See Rule 3.6-1 of the Federation of Law Societies of Canada’s Model Code of Professional Conduct (and the corresponding provincial rules/codes).
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
