Duty to Disclose When Outsourcing Legal Work to Freelance Attorneys – Ethical Series, Part 6

Duty to Disclose When Outsourcing Legal Work to Freelance Attorneys – Ethical Series, Part 6-0

Duty to Disclose When Outsourcing Legal Work to Freelance Attorneys – Ethical Series, Part 6

Written by Desiree Nordstrom.

Law firms looking to hire a freelance attorney often ask if they are ethically required to inform their clients that legal work on their cases will be outsourced to freelance attorneys. Rules and ethical opinions give guidance on what to consider when answering this question.

The Impact of Local Rules

As always, law firms must look at their applicable local rules. For example, California Rule of Professional Responsibility 3-500 states:

A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.

In California, according to the Committee on Professional Responsibility and Conduct(COPRAC) Formal Opinion 2004-165, a lawyer must inform a client that an outside lawyer has been hired if it is a “significant development” in the representation of the client.[1] Further, COPRAC Opinion 1994-138 details factors that would be grounds for requiring a firm to disclose the outsourcing.[2] These factors include whether the responsibility for overseeing the client’s case has changed, whether a significant amount or facet of the work will be done by the freelance attorney or if staffing on the case has been changed from what was specifically represented to the client from the onset of the relationship.

The Reasonable Expectation Standard

The San Diego County Bar Association Ethics Opinion 2007-1 indicates that the duty to disclose is determined by the client’s “reasonable expectation” as to who will be completing the work.[3] So the question arises, what are clients’ reasonable expectations? Is it reasonable to believe that only the original attorney hired will complete complex work including motions and pleadings? Is it reasonable to believe that writing and research must be performed by the original attorney hired? These questions should be considered when analyzing a client’s reasonable expectation.

Clients’ “reasonable expectations” are not static and can change over time. And as the legal industry continues to shift toward legal outsourcing, it may be reasonable to believe work will be outsourced to contract attorneys.

We believe that as firms continue to hire contract attorneys, a client’s reasonable expectations will also shift. We predict that in the future, the reasonable belief standard will focus more on the quality and confidentiality of the work-product, regardless of the attorney who ultimately completes the work.

Disclosure of Confidential Information

Note that if any confidential information regarding the client’s case is given to the freelance attorney, then the best practice is to inform the client of the relationship. For more discussion on the duty of confidentiality and MRPC 1.6(a), read our Ethical Series, Part 5 found here.

Marking-Up Costs of Outsourcing

Another consideration on whether there is a duty to disclose to the client is if the original attorney chooses to mark up the cost of outsourcing legal work to a freelance attorney. If the hiring attorney decides to increase the billing rate of a freelance attorney to its end client, then there must be prior consent by the client. For more information on this topic, read our Ethical Series, Part 4 found here.

We recommend that hiring firms include a clause in their retainer agreement that allows the firm to engage the services of freelance attorneys when needed to complete work on behalf of the client. It is also helpful to have an open line of communication with the end client. When clients see the high quality work product that freelance attorneys can provide, they become eager to use this creative, cost-effective solution.

To read more articles in our Ethics Series, click here, here, here, here, and here.

 

[1] COPRAC Formal Opinion 2004-165. http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=cN-OO0Bo11s=

[2] COPRAC Opinion 1994-138. https://ethics.calbar.ca.gov/portals/9/documents/Opinions/1994-138.htm

[3] The San Diego County Bar Association Ethics Opinion 2007-1. https://www.sdcba.org/index.cfm?Pg=ethicsopinion07-1.

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