If you are considering hiring an independent attorney, you may also be wondering what you need to say to your client, both about the need for an additional attorney and the fee arrangement.
First, look at your current agreement with your client. There may already be a clause in the agreement that you may use outside counsel. Does that agreement address fees for contract lawyers?
Next, review your state’s professional responsibility rules. The ABA has issued opinions on when to inform and get consent from your client. In Formal Opinion 08-421, the ABA Committee on Ethics and Professional Responsibility noted that when the outsourcing relationship is “attenuated,” no confidential information can be revealed without the client’s informed consent under Model Rule of Professional Responsibility 1.6. But it is likely that when you hire an independent contract attorney (and are not using an intermediary such as a placement agency), there is a higher degree of supervision and control. In that situation, the opinion states that there may be implied authorization to share confidential information under Rule 1.6(a). That opinion also states that a surcharge could be added to the cost provided that the total charge for legal services is reasonable. (Note, however, that the opinion distinguishes that arrangement from passing the costs through as a disbursement, in which no markup is permitted.)
The Supreme Court of Georgia approved an ethics opinion that specifically addresses the ethics of hiring temporary attorneys. That opinion states that “a client is entitled to be informed that a temporary attorney is being used.” It also states that it is the “ethically proper and prudent course” to seek the client’s consent when the “temporary lawyer’s assistance will be a material component of the representation.” But there is not a requirement that the client consent to the fee arrangement between the temporary attorney and the firm.
With that background, be up front with your client. The independent contract attorney will likely have access to your client’s confidential information, and even if authorization to share that information could be implied, your client will appreciate knowing who is working on the case. Let the client know that you need additional assistance on the case and you have found a qualified attorney to help on an as-needed basis. You will likely be billing your client for the contract attorney’s legal services (not passing the cost on as a disbursement), so let your client know why a new name is appearing on the bill, and what value that attorney is bringing to the case. Better yet, be sure that the independent contract attorney, if billing hourly, provides you with detailed time entries so that the value will be evident to your client.
Hiring an independent contract attorney to assist on a case does not mean you are outsourcing your relationship with your client. Rather, you remain the client’s primary—if not only—contact, while providing more legal services for your client at a reasonable cost. Certainly your client will value that solution.
If you are ready to hire an independent attorney, contact me.
Related: How to hire an independent contract attorney
