Many law firms use contract attorneys, whether to help with overflow work on a regular basis or to assist with a large document review for a single matter. Law firms also may use contract attorneys to help meet short-term staffing needs without the investment necessary in bringing on a new full-time attorney. While contract attorneys can be a great resource for law firms when used properly, there are associated risks that law firms might not always consider. Below are some tips to help law firms use contract attorneys effectively to avoid the pitfalls.
The Duty to Supervise
As is obvious from their name, contract attorneys typically perform work for a law firm or attorney pursuant to a contract. Many firms will use a contract that distinguishes the contract attorney from other attorneys at the firm, including by clarifying that the contract attorney is not an associate, is not on the firm’s partnership track and is not a full-time professional with the firm.
Unless a client contracts directly with a contract attorney, in many circumstances the law firm will undertake the attorney-client relationship, through which the law firm owes direct duties to the client. These duties may include certain responsibilities and obligations relating to the conduct of the contract attorney.
For example, an attorney generally owes a duty to clients to act competently when providing legal services. Under Rule 5.1(b) of the Georgia Rules of Professional Conduct, attorneys “having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Georgia Rules of Professional Conduct.” Many have interpreted this duty to supervise to extend over contract attorneys being supervised by a member of the law firm.
In some situations, a contract attorney may be directly liable to the client due to her or his own negligence or error. However, for the law firm, the fact that the firm used and relied on a contract attorney will typically not serve as a complete defense to any future claim for malpractice. Thus, even if the supervision of contract attorneys is not required by the rules of professional conduct, many firms will take steps to monitor or supervise contract attorneys to help ensure the quality of services provided to the client.
Accordingly, law firms may consider protocols for the supervision of contract attorneys. One place to start is with the contract or other documentation specifying exactly what the contract attorney has been hired to do, the protocols for performing that work, and confirmation that the contract attorney will abide by the law firm’s practices and procedures, in addition to all ethical and professional rules.
Beyond the terms of the contract, law firms can also address the practical aspects of the work to be performed by the contract attorney, including how the contract attorney’s work will be reviewed to ensure that it meets the appropriate standards. Law firms simply passing along the work of contract attorneys without doing more may be assuming unnecessary risk.
When a contract attorney is hired as an employee who works exclusively for a single law firm, the conflict issues are generally less complicated. The rules applicable to the contract attorney, such as the imputation of conflicts, generally may apply as they do to any other attorney at the law firm.
However, the issue of conflicts becomes more difficult when the contract attorney is hired as an independent contractor or simply to work on a single project or case. Some firms address this issue by establishing an “exclusive” independent contractor relationship with a contract attorney so that the conflict analysis only involves one set of clients. Under this arrangement, the law firm and the contract attorney would agree that the contract attorney will do work only for the one law firm. Not surprisingly, contract attorneys may expect some commitment from the law firm, whether in the form of compensation or a workload commitment.
It is more complicated for firms that prefer to use contract attorneys on a purely “as-needed” or nonexclusive basis. Recognizing the conflict issues that can arise in this context, the California bar has provided some insight in Formal Opinion 1992-126: “[t]o facilitate identification of conflicts, the contract attorney should maintain a personal record of clients and firms for whom he/she has worked, in addition to a general description of the work performed for the clients.” Thus, the firm may want to inquire as to whether the contract attorney maintains such a list to assist in evaluating conflicts.
However, depending on the circumstances, it is possible that the contract attorney’s conflicts will not be imputed to the law firm where the contract attorney’s work is relatively minimal and is limited only to a single matter or client. Other factors that may limit the possibility that conflicts will be imputed include whether the contract attorney is physically separated in the law firm’s office space from other client files and whether the contract attorney’s access to electronic files or databases is limited to only those matters on which the contract attorney is working.
Consider Whether Other Obligations Apply
A number of recent high-profile cases have addressed whether law firms owe “employment” obligations to contract attorneys, including whether firms are obligated to provide contract attorneys with benefits in the same manner as employees. Most notably, a number of cases have addressed whether law firms are required to pay overtime to contract attorneys under certain circumstances. Many cases have focused on whether contract attorneys are being hired to perform professional legal services, which could exempt them from overtime laws.
In addition to state and federal laws relating to compensation, law firms can consider how other rules, regulations and laws may apply to contract attorneys. Depending on how law firms choose to structure the relationship with the contract attorney, there may be different requirements as compared to other attorneys at the firm.
Most firms hiring a contract attorney will take steps to clearly address the nature of the relationship with the contract attorney (e.g., employee or independent contractor), the scope of the contract attorney’s work and the applicable ethical, legal and professional rules.
The failure to come to a clear agreement on the key issues can lead to problems later and can potentially undermine the benefits of using contract attorneys.
Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.
Alanna Clair, also a partner at Dentons US in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”