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The legal market is just one of many industries that is fueling a national temp-hiring trend. About 2.4 million, or 1.8 percent, of U.S. jobs are held by temporary workers of all types, and their ranks have grown as the economy improves. For example, from March to April of this year, temp employment rose by 35,000 positions, accounting for one-eighth of net growth in total employment, according to the federal Bureau of Labor Statistics. The number of attorneys in the temporary workforce is rising for a number of reasons; chief among them is sheer utility. Small law firms may have one or more motives to hire a temp: to handle a sudden surge in the firm’s workload, to provide specialized expertise, or to try out a temp as a candidate for a full-time job. Hiring temporary attorneys is a flexible, no-hassle alternative to putting more permanent staff on the payroll. When a big workload subsides, you can simply say good-bye and good luck — instead of fretting about how to handle an idle associate. However, your firm should be mindful of potential problems before hiring a temporary attorney. The head of a temporary legal staffing agency based in Washington, D.C., Janice James is a realist when it comes to pitching temps to certain do-it-yourself law firms: “You may never convince them to use a contract attorney.” But these days, D.C. law firms that practice without temps may be in the minority. “All the agencies are just swamped with work,” says James, the executive director of D.C.-based Pat Taylor and Associates, Inc. “We’re importing contract attorneys from New York and other places because we have a busier market here.” Temp attorneys are employees of the agencies that provide them, so typically the agencies not only pay their salary but also withhold taxes, provide health insurance, and make worker’s compensation and unemployment compensation payments. Temps don’t necessarily come cheap. For example, Pat Taylor and Associates pays attorneys hourly rates from $20 to more than $60 — to which the agency adds its mark-up. For its highest-paid temporary attorney, paid $70 an hour, the agency would bill a firm at $100 or $125 according to James. But law firms can also mark up the rate charged by the temp agency. Some law firms can charge clients triple the rate they pay agencies for temporary attorneys, James says. Before your firm takes a temporary leap of faith, however, consider exactly what you need done, how much you’re willing to pay, and any potential liability. DO YOU NEED A TEMP? If your firm’s answer is “yes” to one or more of the following questions, it may be time to try a temp: � Did your firm ever turn down work, or decline to pursue work, because it lacked the requisite legal expertise in-house? � Does your firm work on projects that consume most or all of its resources? � Does your firm disrupt its operations by pulling lawyers off one project to work on another? � Are attorneys in your firm doing paralegal work? Supervised tasks commonly assigned to temp attorneys include document production and review, and preparations for depositions and motions. It’s less likely that you’ll find temps making court appearances because firms generally “want that face time with the client and with the court,” says Terry Murphy, vice president of Kelly Law Registry, a legal-temp unit of Troy, Michigan-based staffing company Kelly Services, Inc. RATES Hourly rates range from under $50 to more than $150, reflecting the wide variety of talent out there. Asked if there are geographical differences across the U.S. in the rates that temp agencies command for attorneys, agency executives say no. Irrespective of where they live, the highest hourly rates tend to go to lawyers with expertise in legal fields that surge with activity, as securities fraud and pharmaceutical development have in recent years, for example. While many temps doing document work are recent law school graduates, your firm may need a more seasoned temp with a legal specialty — the kind of talent that commands premium pay. “If I have an intellectual property attorney who is needed to do trademark work, the idea that we’re going to charge $25 an hour is ludicrous,” Murphy says. “These are not law school students who can’t get a job.” For example, at Strategic Workforce Solutions in New York City, “our candidates for legal assignments vary from junior attorneys to ex-partners of law firms and former clerks of the U.S. Supreme Court,” says chief executive officer Jay Horowitz. His firm charges hourly rates that fall into one of three tiers: from $35 to $50, up to $80, and as much as $150. Be sure you know the difference between attorneys who work for temp agencies and independent contractors who work for themselves. When a “temporary” assignment stretches into months or years of full-time work, having an independent contractor doing the work may put the contractor in a position to demand the health insurance and other benefits that your full-time employees get. When evaluating agencies, determine whether they pay the salary and benefits of the attorneys they represent. “A lot of temp agencies do not follow the rules and treat their employees as independent contractors,” Horowitz says. LIABILITY Be aware of any malpractice insurance policy exclusions relating to temporary attorneys before you hire. In the event a malpractice suit is brought against a law firm for action or inaction by a temp lawyer, the firm’s malpractice insurance policy may or may not extend coverage for any resulting liability. Conflicts of interest should be vetted ahead of any hiring, too. For example, a temp lawyer hired to help with a complex litigation may have connections with another law firm involved in the case, raising the risk that the temp “will be going across the street, working for the firm that’s on the other side,” says attorney Joseph Fleming, a labor and employment lawyer for Greenberg Traurig in Miami. Few risks are posed by carefully supervised temps doing basic document work. The law firm’s potential liability tends to expand as their temp lawyers take on increasingly complex tasks. “It depends on what you’re having them do,” says Fleming. “The more complex the intellectual process, the greater the issues are.” Liability for other on-the-job problems a temp may cause, such as sexual harassment, may be as much your firm’s as your firm’s temp agency. “It’s a co-employment situation,” says James, the director of Pat Taylor and Associates. “We’re the employer of record, but the person who is using the temp is equally responsible.” TEMP TO PERMANENT If your firm hires a temp attorney away from his or her agency, you may have to pay the agency a penalty called a conversion fee. Usually calculated as a percentage of the temp’s annual income, conversion fees are comparable to the fees that law firms pay outside firms for permanent staff placement services. Generally, the longer an attorney works for your firm as a temp, the smaller the conversion fee. Depending on the contract, no such fee may be due if you allow the attorney to work as a temp for a minimum time period — often three to six months — prior to conversion. You may also want to keep a temp attorney around longer to evaluate his or her potential as a permanent addition to your staff. Many temp assignments are tryouts for bigger roles. Russell Iger, for example, worked 11 months as a temporary attorney at Bernstein, Liebhard & Lifshitz, a New York City-based plaintiff’s law firm specializing in securities fraud, before he accepted a permanent position as an associate in March of this year. “We’re a pretty small firm but we’re growing,” Iger says. According to Iger, internships with the district attorney in San Diego, Calif., and the state attorney in Connecticut helped him get a foot in the door. Iger admitted to occasional awkward feelings during his temp days. “It’s kind of weird. You don’t feel you’re a part of the firm, but you have the responsibility as if you were.” As a temp he was reluctant to ask support staff to do clerical work for him, a hesitation he lost after becoming a full-time associate. Iger has been working longer hours, about 50 per week versus 40 as a temp, since he graduated from temp to full-time associate. But he is content with the compensation he earns — particularly in comparison to his paltry temp pay in early 2003. “I was making $20 an hour when I started,” he said.

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