Business of Law

Is Outsourcing to Freelance Lawyers on LAWCLERK Ethically Compliant?

By Talitha Gray Kozlowski
August 07, 2018

One of the most common questions we get is if LAWCLERK is ethically compliant. The answer is unequivocally “yes!” LAWCLERK is built by attorneys for attorneys and we understand the ethical restrictions placed on you. We are the only freelance marketplace that is designed to comply with every state’s ethical rules. While you can read our 50-state survey at https://www.lawclerk.legal/ethics_whitepaper, the punchline is that the freelance lawyers on LAWCLERK work in a paraprofessional capacity for the hiring attorney, thereby allowing attorneys to harness the skill and knowledge of freelance attorneys from across the country.

While the definition of the practice of law is established by law and varies from one jurisdiction to another,[1] the courts and bar associations unanimously agree that the purpose of the prohibition on the unauthorized practice of law is to protect the public from receiving legal services from unqualified persons.[2]

Every state other than California has adopted the Model Rules, although some states have modified the Model Rules in their adoption or have not adopted the most recent amendments to the Model Rules.[3] Model Rule 5.3, titled “Responsibilities Regarding Nonlawyer,” and Model Rule 5.5, titled “Unauthorized Practice of Law; Multijurisdictional Practice of Law,” are most pertinent to the analysis of what constitutes the unauthorized practice of law.[4]

The Model Rules balance the need for attorneys to utilize paraprofessional services while ensuring that the public is not unknowingly receiving legal advice from unqualified professionals. The Comments to Model Rules 5.3 and 5.5 provide that:

  • “This Rule [Model Rule 5.5] does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.”[5]
  • “A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.”[6]

Consistent with the Model Rules, LAWCLERK balances the need for attorneys to maintain cost-effective legal services while meeting the public’s need to ensure that they are not unknowingly receiving legal advice from unqualified people. To this end, each attorney utilizing the services of a freelance attorney (we call them “Lawclerks”) through LAWCLERK must execute the following agreement:

I am a duly licensed attorney in good-standing and I agree to fully comply with the following rules regarding the use of Lawclerk services.

1. I shall have sole professional responsibility for the work product of the Lawclerk.

2. I will supervise the Lawclerk’s performance of services on the assigned project to ensure compliance with the applicable Rules of Professional Conduct.

3. I will establish and maintain the relationship with my client.

4. The Lawclerk shall have no contact with my client, including without limitation no email, telephone, skype, web, social media, or in-person contact.

5. The Lawclerk shall not appear in court or any other judicial or administrative body on behalf of my client.

6. I will not ask or otherwise cause the Lawclerk to serve or otherwise disseminate the Lawclerk’s work product or any other documents to anyone other than me.

7. I will not ask or otherwise cause the Lawclerk to sign or file any documents with any court or administrative body.

8. The Lawclerk shall have no contact with opposing counsel, witnesses, or other persons potentially involved in the project for which the Lawclerk has been engaged, including without limitation no email, telephone, skype, web, social media, or in-person contact.

9. If required by my engagement agreement with my client or applicable law, I have obtained my client’s consent to utilize the services of a Lawclerk.

10. I have sole responsibility for determining the fee charged to my client for legal services. The Lawclerk shall not have any involvement in determining the fee I charge my client for the Lawclerk’s services.

11. All payment for Lawclerk services shall be completed through www.lawclerk.legal.

Additionally, LAWCLERK imposes the following requirements on its users:

  • The attorney establishes the flat fee price for the project, which is not contingent upon the outcome of the attorney’s case or matter. The Lawclerk will have no involvement in determining the fees charged by an attorney to his/her clients.
  • The Lawclerk shall hold a Juris Doctorate from an ABA accredited law school or be barred and in good standing in the Lawclerk’s jurisdiction and his/her services shall solely be offered to attorneys (not the public).
  • The attorneys shall be properly admitted and in good standing within their applicable jurisdiction(s).
  • Disbarred or suspended lawyers may not serve as Lawclerks.
  • LAWCLERK will maintain a list of all of the attorney’s clients for which the Lawclerk has been engaged through LAWCLERK and will remove from the available list of Lawclerks any Lawclerk that has a conflict as a result of prior work performed through LAWCLERK.
  • For each project in which a Lawclerk is engaged by an attorney, the Lawclerk shall: (i) complete a conflict check and review the applicable state’s conflict laws and affirm that he or she does not have any conflict and may complete the project; and (ii) execute a confidentiality and non-disclosure agreement.
  • LAWCLERK does not permit attorneys from Indiana to engage Lawclerks because of Indiana’s unique guidelines to its rules regarding contract paraprofessionals.

LAWCLERK thereby requires that the attorney agree to remain solely responsible for the attorney-client relationship and the legal advice provided by the attorney to his/her client. Thus, while the attorney may obtain a legal memorandum, a draft pleading, or other legal services from a Lawclerk, the Lawclerk will have no direct contact with the attorney’s client, the Lawclerk will be supervised by the attorney, and the attorney will retain sole responsibility for the Lawclerk’s work product and the attorney’s ultimate use of such work product.

 

[1] See Model Rules Comment 5.5(2).

[2] See id.

[3] The date of adoption can be found at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html.

[4] The American Bar Association’s (the “ABA”) comparison of Model Rule 5.3 to each state’s adopted form of Model Rule 5.3 as of September 15, 2016 can be found at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_5_3.authcheckdam.pdf. The ABA’s comparison of Model Rule 5.5 to each state’s form of Model Rule 5.5 as of September 15, 2016 can be found at: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/recommendations.authcheckdam.pdf.

[5] See Model Rules Comment 5.5(2).

[6] See Model Rules Comment 5.3(3).

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