The Orange County Lawyer published an article in their December 2011 issue titled Outsourcing to Temporary Attorneys, authored by Montage Legal Group founders, Erin Giglia and Laurie Rowen. The article, appearing in their popular "Ethically Speaking" section, discusses the recent malpractice suit involving contract attorneys, J-M Manufacturing v. McDermott Will & Emery, and highlights some of the ethical issues that firms need to be aware of when outsourcing to contract attorneys or freelance attorneys. The article discusses many of the relevant California and ABA rules regarding outsourcing to temporary attorneys, such as the duty of competence.
The article also highlights that the ethical rules clearly establish that the hiring attorney is ultimately responsible for all work product that leaves the firm, including temporary attorney work, as set forth in the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) Formal Opinion 1992-126. Further under California Rule of Professional Conduct 3-110(A), all attorneys must perform legal services with competence, defined as the "diligence, learning, and skill. and mental, emotional, and physical ability reasonably necessary for the performance of such service." Rule 3-110(A) applies equally to all California attorneys, contract or otherwise. Because the hiring attorney is ultimately responsible for the temporary attorney's work, the hiring firm must be aware of their contract attorneys' education, background and experience. The ABA has also commented on the importance of using only skilled contract attorneys in Formal Ethics Opinion 08-451, "There is nothing unethical about outsourcing legal...services, provided the outsourcing lawyer renders legal services to the client with the 'legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,' as required by Model Rule 1.1."
Temporary attorneys can be an excellent resource to firms of all sizes, and can solve difficult temporary or long-term staffing needs. But firms should take care to hire only temporary attorneys with appropriate levels of training and experience to perform tasks competently, and firms must always supervise contract attorney work.
To read the full article, see the December 2011 on-line issue of the Orange County Lawyer.