Summaries courtesy of FreelanceLaw member Carol Mutz, J.D., Lincoln, Nebraska

San Diego County Bar Association Formal Ethics Opinion 2007-1

An attorney who hires a temporary attorney from an agency in a foreign country to assist him or her with litigation in a specific area of the law in which the hiring attorney has little experience does not aid in the unauthorized practice of law as long as the hiring attorney retains supervisory control over and responsibility for the tasks which constitute the practice of law.  An attorney who retains full control over the representation of the client and exercises independent judgment in reviewing the draft work performed by the temporary attorney does not violate the rule. 

An attorney may hire another attorney to assist in a legal matter when the attorney is unfamiliar with the area of law as long as the attorney’s performance is consistent with the duty of competence.  The duty of competence may require the hiring attorney to learn enough about the area to enable him or her to adequately evaluate the temporary attorney’s work. 

The hiring attorney is required to notify the client prior to the use of an outsourcing service if the use constitutes a “significant development” in the representation of the client.  Several factors are used to determine whether the use is a “significant development;” they are: whether responsibility for overseeing the client’s matter is being changed; whether the new attorney will be performing a significant portion or aspect of the work; and whether staffing of the matter has been changed from what was specifically represented to or agreed to by the client.  The decision is a function of the client's expectations with respect to the services which are to be provided by the attorney.

The hiring attorney also retains ultimate responsibility for the work provided to the client.  Where the work is performed by an attorney outside the United States, the degree of supervision is enhanced. 

The attorney who outsources work must also maintain the confidences of the client.  Special care must be taken when outsourcing to foreign countries where confidentiality and conflict of interest standards may be different from those in the United States. 

Los Angeles County Bar Association Professional and Judicial Ethics Formal Opinion No. 518: Ethical Considerations in Outsourcing of Legal Services (2006)

 (summary soon to be posted)

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State Bar of California Standing Committee on Professional Responsibility and Conduct

Formal Opinion 2004-165

A California lawyer who employs a temporary lawyer to make appearances on behalf of a client must disclose the employment to the client when the employment is a significant development in the matter.  Whether the employment constitutes a “significant development” depends on several circumstances, including whether responsibility for oversight of the matter is changed; whether the temporary attorney is to perform a significant portion of the work; and whether staffing of the case has change from what was represented to the client.  The client’s reasonable expectations must be considered. 

If disclosure is required, it should be made prior to the appearance by the temporary lawyer.  If employment of a temporary lawyer is anticipated at the outset of the representation, that should be reflected in the written agreement between the firm and the client.  If the client is charged a fee for the temporary lawyer’s services, that must be included in the agreement.  Also, rules regarding splitting of fees must be regarded. 

The hiring attorney remains responsible to the client for competently supervising the temporary lawyer.  Ethical rules regarding confidentiality, conflicts of interest, competence must be followed.

 Ethical rules pertaining to advertising by lawyers to the public do not apply to an agency which provides temporary lawyers to other law firms, i.e. “lawyer-to-lawyer” advertising.  However, certain provisions, such as those prohibiting deceptive or misleading advertising, may apply.

Full opinion text 

State Bar of California Standing Committee on Professional Responsibility and Conduct

Formal Opinion 1992-126

This opinion relates to agencies which refer lawyers to law firms on a temporary basis.  Lawyers participating in such employment agencies must take reasonable precautions to avoid potential ethical violations which may arise.  Areas of special concern are: breach of confidentiality, conflicts of interest, independence of professional judgment, competence and fee splitting prohibitions.

Confidentiality.  Both the temporary lawyer and the firm that employs him or her have a duty to maintain the confidence and secrets of the client.

Conflicts.  A contract lawyer who temporarily works on a matter for a firm's client represents that client.  If the attorney has or had a relationship with another party interested in the representation, or has an interest in its subject matter, the member is prohibited from accepting or continuing such representation without the informed written consent of all affected clients.  A member is also prohibited from concurrently represent clients whose interests conflict, except with their informed written consent.  The hiring firm must screen the contract attorney from all confidential information unless it is necessary to the attorney's assignment at the firm.  The responsibility for checking conflicts of interest falls on both the firm and the contract attorney.

Use Of Independent Professional Judgment.  Even though a third party pays for legal services, an attorney owes the same obligations of good faith and fidelity to the firm's client as if the client had retained the attorney personally.

Competence.  An attorney is required to perform legal services competently.   An attorney may acquire the necessary skills in the course of representation or may associate with additional counsel.  The contract attorney should be particularly cautious in accepting an assignment from an agency absent sufficient learning and skill.

Unauthorized Operation Of A Lawyer Referral Service.  As long as the agency refers lawyers only to law firms and not to the public, it does not violate the rules applicable to lawyer referral services.

Improper Fee Splitting. Attorneys not in the same firm may not divide fees unless the client consents and the total fee charged is not unreasonable.  An attorney may not divide fees with a non-attorney even with the consent of the client.  Paying an agency a percentage of a temporary attorney's fees may be considered an illegal division of fees.  Therefore, a temporary attorney should be paid directly by the firm with a separate payment to the agency.

 Full opinion text