Written by Desiree Nordstrom
When communicating with a law firm that wants to contract with OLN’s freelance attorneys, a question that often arises is whether it can contract with a freelance attorney that is bar certified in a state different than the state in which the law firm practices. This question triggers an analysis of the ethical considerations regarding the prohibition of aiding and abetting in the unlawful practice of law.
Here is what we know;
Each state has its own particular rules of conduct; however, in many instances the rules of different states may overlap. It is recommended that the hiring firms consult the American Bar Association’s (ABA) Model Rules of Professional Conduct (MRPC) and look into their local jurisdictions’ ethical rules.
The MRPC at 5.5 (a) states:
A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
The key determining issue is whether conduct or activity constitutes the practice of law. Hiring attorneys must ensure an appropriate degree of supervision. This is the same conclusion by all opinions authored by seven Bar Association Ethics Committees, the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, the Association of the Bar of the City of New York Committee on Professional Responsibility and the American Bar Association Standing Committee on Ethics and Professional Responsibility
The necessity to supervise is as important as if an attorney were delegating work to a paralegal. Creating a system of supervision can be an effective way of ensuring compliance to ethical considerations. Also note that supervision should be performed by an attorney competent to perform the particular legal task and to evaluate the work undertaken by the freelance attorney.
The vital issue is that, at all times, the hiring law firm’s supervising attorney remains ultimately responsible for the work that is contracted out to the freelance attorney and is subject to the local State Bar Acts and Rules of Professional Conduct relating to violation of professional responsibilities.