Freelance Lawyers. The industry's best kept secret. Christopher Kozlowski

Transcription

1 Freelance Lawyers The industry's best kept secret. Christopher Kozlowski

2 About Me Co-founder and partner of Streamline Litigation, which I started while I was still in law school at Villanova University School of Law. Interned for the Honorable Paul P. Panepinto Complex civil litigation cases including personal injury and medical malpractice. Spent legal career working as a general practitioner overseeing cases ranging from commercial litigation, real estate, and foreclosure defense.

3 Overview Freelance Lawyer Industry Benefits Outsourcing Discovery Benefits and Issues India s Outsource Industry Issues Best Practices Ethics Issues and Solutions ABA Opinion Confidentiality, Client Disclosures, Conflict of Interest, and Attorney Client Privilege

4 Legal Outsourcing: involves subcontracting legal work traditionally done by in-house counsel or law firms to third-party service providers. These services are typically concentrated on the processing of discovery but have now expanded to virtually every service provided by law firms. Freelancer: a person who is self-employed and is not necessarily committed to a particular employer long-term.

5 Freelance Lawyer Industry Freelancer Benefits Work Load Control Autonomy Work life balance New Connections and Diversification Income Control National Exposure Tax Benefits

6 Freelance Lawyer Industry Hiring Attorney Benefits Benefit: Cost Compare the national average hourly rate for an attorney or paralegal with that of a freelance attorney. National Average: Associate Attorney: $292/hr* Paralegal: 118/hr** Freelance Rate: Anywhere from $35-$120/hr *NALA, The Association of Legal Assistants and Paralegals, 2013 National Utilization and Compensation Survey Report, Section 3 Billing Rates. (2013). **Laffey Matrix, Civil Division of the United States Attorney's Office for the District of Columbia. (2014).

7 Freelance Lawyer Industry Hiring Attorney Benefits Benefit: Time Allocation When the hiring attorney outsources areas outside their concentration, it greatly enhances the allocation of time to areas in which you are most proficient while the client receives the benefit of work as good or better than you could have delivered. By outsourcing work you may not be proficient in to another attorney, you are able to accept other cases that may prove more profitable. In addition, as noted in ABA Opinion , an attorney is able to add a surcharge to the fee paid to the freelance lawyer when billing the client for legal services, as long as the total sum charged is reasonable. Attorneys often have scheduling conflicts and the use of a freelance attorney at such times can be a solution to the problem without having to consider adding the cost of an associate to the firm.

8 Freelance Lawyer Industry Hiring Attorney Benefits Benefit: Work Quality ABA rules allow an attorney to take on a client even though the attorney does not practice that area of law, as long as the attorney gains competence. Utilizing a freelance attorney allows the hiring attorney to use a work product that is superior to their own.

9 Where to Find Freelance Attorneys There is a choice of on shore and off shore legal outsourcing. U.S. based freelance firms vary in the delivery and fee structure. Some examples would be (e.g. Montage, Freelance Law, Streamline Litigation)

10 Where to Find Discovery Freelancers Any trusted site that assists with meeting freelancers (e.g. elance)

11 Outsourcing E-Discovery Traditionally done by large companies who specialize in document review (e.g. Huron, Pangea3) or by law firms that handle it in-house. Alternative: Utilizing freelance attorneys to complete discovery tasks Limited quantity of ESI Discovery processing can also be processed and reviewed by qualified and experience freelance document review attorneys. Regardless of the firm or attorney chosen to process and/or provide document review services to identify relevancy, privilege, and issue spotting, the Electronic Discovery Resource Model should always be employed and utilized.

12 Electronic Discovery Resource Model

13 Outsourcing E-Discovery Processing and Review Understanding the EDRM Model Identification: Locating potential sources of ESI & determining its scope, breadth & depth. Custodian interviews and identifying all the relevant locations of ESI. Preservation: Ensuring that ESI is protected against inappropriate alteration or destruction. Drafting an effective litigation hold and crafting follow up protocols to ensure compliance. Collection: Gathering ESI for further use in the e-discovery process (processing, review, etc.). Processing: Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis. FRCP Rule 26 governs this issue. Review: Evaluating ESI for relevance & privilege. Advances in technology and acceptance by U.S. District Courts of predictive coding technology and artificial intelligence have cut down on attorney review time previously needed. Analysis: Evaluating ESI for content & context, including key patterns, topics, people & discussion. Production: Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms. FRCP 16 requires the parties meet and confer regarding discovery production as to the form or forms in which the ESI should be produced. If the parties are unable to reach agreement, then responding party must produce ESI in either the format it is ordinarily maintained native or in a reasonable usable form. Presentation: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & nearnative forms, to elicit further information, validate existing facts or positions, or persuade an audience.

14 India s Outsource Industry Approximately 100 legal outsourcing firms that employ approximately 600 to 800 Indian attorneys. Indian services generate $80 million a year, and expects that the figures will reach $4 billion by Manhattan Work at Mumbai Prices: Inside India s Hottest Legal Outsourcing Firm, Arin Greenwood The top 200 [U.S.-based] law firms spend more than $20 billion a year for backoffice work. Tommy Fernandez, Low Costs Make the Case for Outsourcing Legal Work, CR.AzNs N.Y. Bus.,Sept. 13, 2004, at 21. Approximately 3.3 millions job and $136 billion in wages will be allocated to countries such as India by *Forrester Research

15 India s Outsource Industry Tasks that have been traditionally outsourced: Phone answering services, transcription, accounting, or customer service. Legal task that are now outsourced are: Document review Document drafting.

16 India s Outsource Industry Problem: Generally, the individual who is performing the legal work in India does not have to be an attorney. As legalsupportglobal.com puts it, the legal process outsourcing work performed in India by Legal Support Global is supervised by Harvard Law School trained attorneys who understand the American legal system. Many times Indian companies hire an attorney from the US to supervise their staff of local Indian attorneys.

17 India s Outsource Industry Problem: Security Considerations: Secure Servers Do small to mid-size outsource companies have safeguards in place to prevent a leak of confidential information? Indian Law The International Intellectual Property Alliance's criticizes Indian enforcement as lax and uneven. According to the IIPA, India lacks an effective mechanism for national enforcement coordination and instead relies on individual states for law enforcement. This policy has resulted in fragmentation and cross-jurisdictional difficulties. Even if crimes are prosecuted, Indian courts face massive backlogs. Example: The Bank of New York Mellon fell victim in 2008 to a data breach involving the theft of tapes containing personal information of around 12 million customers, while under the responsibility of an outsourcer.

18 Outsourcing to Freelancers Best Practices Suggestions by the ABA Prepare a detailed Request for Proposal (RFP) prior to contracting any provider. First-timers implementation process Security and privacy measures Financial stability Technical capabilities and infrastructure Procedures in place to keep apprised of technological developments and any related case law updates Customer references Personnel qualifications (i.e., educational background and on-the-job training)

19 Outsourcing to Freelancers Best Practices Management qualifications and resumes; Staffing policy and procedures (i.e., who will staff the project, whether the team will be dedicated to specific projects); Quality control measures and standards (i.e. what the service level measures are for each specific project); Employee training procedures and policies; Transparency of the various protocols and Procedures; Costs; and, Information about the facilities and the location of where the work will be conducted (including, if possible, site visits, whether the site is in a special economic zone and whether backup locations are ready and available).

20 Outsourcing E-Discovery - Responsibilities of the Hiring Attorney Discovery Spoliation and the importance of legal hold effectiveness Vetting the document review team Ensure ESI is secured and backed up. Secure cloud based services are typically recommended. Utilizing the appropriate software tools based on the scope and nature of the e-discovery project

21 Outsourcing E-Discovery. Responsibilities of the Hiring Attorney Pricing model comparison Using on shore (U.S. based) versus off shore service providers The pro s and cons Defining the scope of the review process. Issue spotting, privilege log, etc. Develop and enforce strict protocol for review process

22 Ethics Ethics rules set forth by the ABA generally do not apply to freelance attorneys performing document preparation or discovery tasks. The American Bar Association issued Formal Opinion in 2008 regarding lawyer's obligations when using legal outsourcing services. Along with an attorney having to provide competent services, he or she is responsible for the competence of all attorneys working under him or her. There have been several state and local bar association opinions on the topic, as well as numerous law review and bar journal articles. The opinions overwhelmingly conclude that an attorney may ethically outsource legal work; however, the opinions emphasize the need for an attorney to address ethical obligations including, but not limited to: (1) adequate supervision of all work that can be deemed the practice of law; (2) avoidance of conflicts of interest; and (3) preservation of client confidences and sensitive information. ABA Danger: Unauthorized Practice of Law (UPL)

23 Ethics Adequate Supervision Rule: Attorneys are required to adequately supervise the work of subordinate attorneys and non-attorneys. Context: a supervising attorney must oversee anything that can be deemed the practice of law to ensure that competent work has been performed. Difficulty: Physical Separation between the freelance attorney and supervising attorney. How to Comply: Establish practices and procedures; Communicate regularly

24 Ethics Conflicts of Interest Rule: An attorney cannot represent a party if a conflict of interest exists between the prospective client and past or current clients. Context: Potential conflicts can arise through the use of outside service providers and the contract attorneys that work for the outsourcing vendor. How to Comply: You should investigate. Note: There are no ABA requirements that a supervising attorney check conflicts, especially if there is no confidential information disclosed.

25 Ethics Confidentiality Rule: An attorney must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Context: A hiring attorney must ensure that all client confidences and secrets are adequately protected. How to Comply: Do not reveal confidential information without client s consent. Freelance/outsource attorney should sign a confidentiality agreement.

26 Thank You Should you have any further questions or comments please feel free to me at This webinar was brought to you be the Association of Certified E-Discovery Specialists and sponsored by Streamline Litigation. Streamline Litigation provides litigation support services to law firms, insurance companies, and in-house counsel. Learn more about our services at

27 Cites Legal Outsourcing: Farming Out Work Without Reaping Ethical Problems, Gifford, C. (2013). Attorney Who Billed for 29-Hour Day Did the Work, His Lawyer Says, Neil, M. (2013). Legal Process Outsourcing: A Guide to Important Considerations, Risk Mitigations and Achieving Success, Prasad, A. & Mago, A. (2008). Preservation Guide, edrm.net (2010). Outsourcing Series, Part 1: When Does Outsourcing Make Sense?, Bordin, K. (2010). The Cost of In-House Law Firm Staff vs. Outsourcing, Chern, K. (2010).