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

State Bar of Georgia Formal Advisory Opinion No. 05-9

Approved And Issued On April 13, 2006

The Georgia Rules of Professional Conduct do not prohibit the use of temporary lawyers where the temporary lawyer and the employing firm are aware of the unique problems of conflicts of interest, confidentiality, imputed disqualification, client participation, use of placement agencies and fee division produced by the use of temporary lawyers.

Conflicts of Interest.  A temporary lawyer employed enters into an attorney/client relationship with the hiring firm’s clients as an associate of the firm and the general rules pertaining to all attorneys regarding conflicts of interest are applicable to the temporary lawyer.  The employer of a temporary lawyer must carefully evaluate the proposed employment for actual conflicting interests and potentially conflicting interests.

The normal rules governing imputed disqualification apply to temporary lawyers. If any attorney is individually precluded from undertaking representation of a case or client, then a firm with whom the attorney is associated is also precluded from undertaking that representation. Therefore, a firm that employs a temporary lawyer would be disqualified from any unconsented representation materially adverse to a former client of any firms the temporary lawyer had worked for in the same or a substantially related matter if the temporary lawyer had acquired confidential information about the former representation.

Confidentiality.  A temporary lawyer who is involved in or who provides assistance in the representation of clients enters into an attorney/client relationship with those clients and is therefore obligated not to disclose client confidences.

Use of Placement Agency.  A firm may utilize a placement agency, but it must prevent any third party from exerting any control as to the client representation.  It must ensure compliance with the Rules of Ethics relating to confidential information and conflicts of interest.   To lessen the risk of disclosure, the firm should screen temporary attorneys and see that they do not obtain unnecessary information.   Moreover, the client should be informed that a temporary attorney is being used.

Fee Arrangement.  A fee division with a temporary attorney is allowed if the temporary attorney is directly supervised by an attorney in the law firm.  The arrangement is analogous to fee splitting with an associate in a law firm and does not require consent by the client regarding the fee.  However, the ethically proper and prudent course is to seek consent of a client under all circumstances in which the temporary lawyer's assistance will be a material component of the representation.

Where no direct supervision of the attorney is provides, a division of fees is permitted if: (1) the fee is in proportion to the services performed by each lawyer; (2) the client is advised of the fee splitting situation and consents; and (3) the total fee is reasonable.   Because a placement agency is not authorized to practice law, any sharing of fees with such an agency would be in violation of the Rules.  Therefore, compensation to an agency may not be based on a portion of client fees collected by the firm or the temporary lawyer.

Full opinion text