Un-Billable Hour

Surviving and Thriving in the Gig Economy

Many lawyers, more than ever before, are moving toward small law firms or starting solo practices. However, there is another subset of solo attorneys that are often overlooked when discussing small law. In this episode of The Un-Billable Hour, host Chris Anderson talks with Now Counsel Network CEO Lisa Solomon about freelance lawyering, the difference between contract and freelance work, and how these lawyers find work and thrive in the world of small law.

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The Un-Billable Hour

Surviving and Thriving in the Gig Economy

10/14/2016

Intro: Managing your law practice can be challenging. Marketing, time management, attracting clients and all the things besides the cases that you need to do that aren’t billable. Welcome to this edition of ‘The Un-Billable Hour’, the Law Practice Advisory Podcast. This is where you will get the information you need from expert guests and host Christopher Anderson here on Legal Talk Network.

[Music]

Christopher Anderson: Welcome to ‘The Un-Billable Hour’, the Law Practice Advisory Podcast helping attorneys achieve more success. We are glad you can listen today on the Legal Talk Network. I am your host, Christopher Anderson. I am an attorney with a singular passion for helping other lawyers be more successful with their law firm businesses. My team and I work directly with lawyers across the country to help them achieve success as they define it.

In ‘The Un-Billable Hour’ each month we explore an area important to growing revenues, giving you back more of your time and/or improving your professional satisfaction in one of the key areas of your business. As an attorney who has built and managed law firms in Georgia and New York City, I now get to work with hundreds of law firm owners to help them grow professionally and personally. Your law firm business should exist to provide for the financial, personal and professional needs of you, its owner.

In this program I have a chance to speak to you as I do in presentations across the country and with the team at how to manage a small law firm about what it takes to build and operate your law firm like the business that it is. I have a chance to introduce you to a new guest each month to talk about how to make that business work for you instead of the other way around. Today’s episode of ‘The Un-Billable Hour’ is, the Gig Economy.

One of the topics we cover is regarding the production of the work in your business. Key to the function of any well-run law firm is, well, quite honestly, getting the work done. Your marketing brought you the prospects, you converted them into clients and you promised you would work on their issues.

As your business grows you will not have the capacity to get it all done on time and with the quality that defines you.

My guest today is Lisa Solomon. Lisa Solomon is the attorney and the highfalutin founder and CEO of Now Counsel Network, the company that helps solo and small firm lawyers increase profits, decrease stress, and get their lives back.

We’re going to discuss this very important aspect of managing a law firm business with Lisa on the Gig Economy.

So Lisa, Welcome to ‘The Un-Billable Hour’.

Lisa Solomon: Thanks Chris.

Christopher Anderson: You are welcome. First of all, I know my introduction was really, really brief. You run a company called the Now Counsel Network, can you just describe for us for a minute, what does your business do for law firm owners?

Lisa Solomon: Sure. Well, like you said, Now Counsel Network helps solo and small law firms increase profits, decrease stress, and get their lives back, and I designed Now Counsel Network to do this in two ways.

First, before we invite a freelance attorney to join our network, Now Counsel Network confirms the applicant’s registration and disciplinary status, review the writing sample and interviews three references. All of our lawyers have at least seven years of experience in law practice and/or as law school legal research and writing instructors, and they have substantive expertise in a wide variety of practice areas.

So basically in sum, we vet the freelance lawyers, we do a lot of the due diligence that you would otherwise have to do if you were looking for a freelance lawyer and not using Now Counsel Network.

Christopher Anderson: So that’s an interesting business that you’re in. How did you, yourself get interested in freelance attorneys?

Lisa Solomon: Sure, sure. Well, actually I have been a freelance lawyer myself for 20 years, the vast majority of my career. After law school I had a few years under my belt as an associate at a Midtown Litigation Boutique in Manhattan. I live in the New York City area. I enjoyed the work but the firm was going through some changes and so I decided to look for a different opportunity.

I went to work for actually a company that you know very well, Chris, LexisNexis.

Christopher Anderson: I do.

Lisa Solomon: And where that you worked as well. I was there for a year training New York City area law students on how to use the company software. After that I got an opportunity to work as a remote full-time W2 employee for a Boston-based firm where I had actually worked as a paralegal when I was in college. But at a certain point the firm said, well, we don’t want you to be a W2 employee anymore, we want you to be an independent contractor.

So at that point I said, okay, if you want me to be an independent contractor, I will act like one, and so, meaning, I will find other clients as well.

(00:05:03)

Christopher Anderson: Great.

Lisa Solomon: And so that’s when I launched my freelance practice as a lawyer, Lisa Solomon, Esq. Legal Research & Writing.

So well, it wasn’t uncommon back then for new lawyers to get experience doing contract work for other lawyers.

Christopher Anderson: Right.

Lisa Solomon: I was one of the first lawyers to recognize and take advantage of the technological advances that make outsourcing legal research and writing services practical and profitable for firms of all sizes.

Christopher Anderson: Right. So let me just get you to distinguish then, because we are throwing around these terms, freelance lawyer, contract lawyer, and I think a lot of the listeners here have heard of and/or used contract lawyers. What is a freelancer lawyer, and how do you distinguish that between a freelance lawyer and a contract lawyer?

Lisa Solomon: Sure, right. Well, back when I got started, the term ‘Freelance Lawyer’ wasn’t really used at all, and people would say, well, I’m doing contract work for other lawyers. So the term ‘Contract Lawyer’ became fairly common. These days however, over the past say maybe seven years, the term ‘Freelance Lawyer’ is coming into more use.

So here is what the distinction is. A freelance lawyer is a lawyer who performs work on an independent contractor basis for other lawyers, so freelance lawyer doesn’t enter into an attorney-client relationship with your client.

Now with respect to contract lawyers, in a lot of segments of the legal industry the term ‘Contract Lawyer’ is used very specifically to refer to a lawyer or even a non-admitted law graduate who works as an employee of a legal employment agency or a Legal Process Outsourcing (LPO) provider. And then, the LPO provider or agency in turn contracts with law firms for the use of its employees to perform work on a temporary basis. It’s then the agency or LPO provider that builds the firm for the contract lawyer’s time, and it pays the contract lawyer percentage of the hourly fee collected from the firm.

Christopher Anderson: Okay.

Lisa Solomon: So by contrast, freelance lawyers are independent business-owners like you and me. They maintain their own offices, pay their own taxes, arrange for their own insurance and benefits, set their own schedules and fees, establish their own working conditions, and pursue their own professional development.

One small caveat is that the term ‘Freelance Lawyer’ isn’t in wide use in all parts of the country, so you may frequently come across someone who refers to themselves as a contract lawyer, even though some people in the industry would call them a Freelance Lawyer.

Christopher Anderson: Got you. So the distinction that you’re drawing there for the purpose of our discussion at least and the one that you can suggest to others is that contract lawyers work for as an employee for an agency who then leases them out if you will, whereas freelance lawyers are independent business-owners who enter into direct engagements with the people who pay them.

Lisa Solomon: Yes, direct engagements with the hiring firm, not direct engagements with your client.

Christopher Anderson: Exactly, so with some hiring firm that’s going to use them on a temporary or even in a longer term but not permanent or employee basis.

Lisa Solomon: Correct, temporary or project-based.

Christopher Anderson: Cool. So then what are some of the things that freelance lawyers can do? What tasks can they perform?

Lisa Solomon: Sure. Well, basically a freelance lawyer can do pretty much anything that a lawyer employed by your firm can do — an associate, right? So that would include, for example, legal research and writing, such as drafting pleadings, motions, jury instructions, appeals, discovery requests. It would include document review, taking in defending depositions, making court appearances, assisting with trial prep.

A freelance lawyer of course, just like an associate could also help with your marketing efforts by drafting or editing articles, books with CLE materials. And finally, although Now Counsel Network doesn’t yet offer services for transactional lawyers, freelance lawyers in general can also do anything that a transactional lawyer can do. So there are transactional freelance lawyers as well.

Christopher Anderson: So drafting, contract review, document review, due diligence, that sort of stuff?

Lisa Solomon: Correct.

Christopher Anderson: So I probably should have just asked you what can a freelance lawyer not do?

Lisa Solomon: Well, that would be a pretty short list.

Christopher Anderson: Excellent. So let me just sort of figure through that. Now that you have given us this list that really kind of like an associate that you have for a little while. So what are the legal research and writing projects that particularly work for outsourcing to a freelance lawyer?

(00:09:56)

Lisa Solomon: Right. Well, one of the most common types of tasks that lawyers; solo and small firm lawyers in particular outsource to freelance lawyers is legal research and writing, and there’s few reasons for that.

So first of all, the lawyer can outsource as much or as little of a project as they want. So for example, the hiring attorney might already have researched the issues and drafted a brief but just needs editing or the hiring attorney might need help with research but wants to write a brief or say an opinion letter himself, or the hiring attorney might prefer to delegate primary responsibility for a whole large project.

So for example, including the preparation of a record on appeal, legal research and brief writing on an appeal to a freelance lawyer, and of course, that would be working still under the hiring attorney’s ultimate supervision, but basically legal research and writing projects can be easily sliced and diced in different ways.

Now, additionally, I think in my experience small firms and solo practitioners in particular can benefit from the fresh perspective and critical eye that a freelance lawyer can bring to a case. For example, I have found that sometimes it can be difficult for a lawyer to dispassionately evaluate legal issues in a case to which the lawyer has already committed significant resources.

So the lawyer might chat informally with a colleague about the case and so a chat like that could help point the lawyer in the right direction, but a freelance lawyer who’s really familiar with all the relevant facts and has read all of the applicable cases or statutes, will be able to analyze the issues much more closely.

Christopher Anderson: So this is actually really interesting to me, because I think a lot of lawyers, certainly myself, what I’ve used and when I think of — forgive me –but contract lawyers are really as you have redefined it, freelance lawyers, the picture that comes to my mind is usually a less experienced younger attorney who is trying to just get some gig work until they can get a full-time job. But what you’re describing is really somebody who could be a peer or colleague who can really be a second set of experience dice on the work.

Lisa Solomon: Oh, most definitely, most definitely. In fact, as I said, I myself has been working as a freelance attorney for 20 years. So I wasn’t green for that whole time, and in fact, the way that I see myself and the way that a lot of experienced freelance lawyers such as the lawyers in Now Counsel Network see themselves as really partnering, obviously not in the ethics sense —

Christopher Anderson: Yeah. Yeah.

Lisa Solomon: — but as partnering with the hiring firm to analyze the issues and really move the case forward. So being a freelance lawyer has really become a professional niche no different than any other professional practice area.

Christopher Anderson: Yeah, that’s really interesting, and to me, that’s a game-changer like how to think about that, to actually be able to bring on experienced help on a short-term basis. Honestly, we’re not talking about just filling in hours or helping expand my capacity to get the work done, but actually bringing on additional experience like even maybe more mature experience onto a case could be the real game-changer to help a younger lawyer or early firm step-up their game and play with the big boys. So I think that’s really an interesting way to look at it.

Lisa Solomon: Yeah, definitely, I mean, I certainly have worked with other lawyers who have been practicing law for fewer years than I have and who may not be as experienced especially for example procedural issues when it comes to appellate procedure, even if they’re very experienced in the substantive area as well may not be as familiar with appellate procedural rules that can really impact how an appeal proceeds.

With that said of course, freelance lawyers who do legal research and writing are not in any way limited to appeals. I was just using that as an example.

Christopher Anderson: Sure. So one of the things that kind of strikes me now that I’m thinking about it in this way is that like now I’m totally afraid of going out into the marketplace and trying to figure out, okay, I need some specialized knowledge in this area who can help look at a case like you just said and help me evaluate it or help guide me through an appellate process or help really bring some experience on to this type of case.

And now I’m lost, like how in the world do I find that is that — like I’d be looking for something like  HYPERLINK “http://www.match.com” match.com for freelance attorneys, is that what Now Counsel Network is doing?

Lisa Solomon: Exactly. You hit the nail on the head.

Christopher Anderson: Okay.

Lisa Solomon: Now Counsel Network does the due diligence and really is looking for people who are, as I said experienced, have achieved a certain level of professional competence and recognition; writing samples have been evaluated, references have been checked, including questions about the liability and things of that nature.

(00:14:58)

Christopher Anderson: Cool. So I think we’ve really covered what a freelance lawyer is and what they can do and you’ve really opened my eyes as to like things that a freelance lawyer could do that I hadn’t really been thinking of.

So Lisa, one of the first questions I had for you is just I think probably question that everybody’s thinking of, is it okay for a firm to make a profit on work performed by a freelance lawyer, and in fact, do they do so?

Lisa Solomon: Absolutely. Otherwise Now Counsel Network wouldn’t be much of a business model and freelance lawyering wouldn’t be much of a business model. Jerry, you got to show me the money. So although one of the Bar Associations that have addressed the issue and including of course most importantly the ABA have said that a firm can make a profit in connection with work performed by a freelance lawyer as long as the total charges to the client are reasonable.

The one exception is the State Bar of Texas but there are Texas freelance attorneys and that can be gone into separately anybody who is in Texas is welcome to contact me for some more about how freelance attorneys handle that in Texas.

Christopher Anderson: Okay, great. But so — and law firms that do it how are they able to make a profit?

Lisa Solomon: Well, basically to comply with ethics requirements, all you have to do is build a freelance lawyer services as a fee; in other words, in the same part of the bill and in the same manner you bill for your own time or for an associate’s time rather than a disbursement. So that would be for example in the section where you would detail expenses incurred for such items as court reporters.

Christopher Anderson: Got you.

Lisa Solomon: You wouldn’t be marking up.

Christopher Anderson: Okay, so let me ask you just a matter of process before we get to that. Even before getting to the bill do you have to obtain the client’s consent before hiring a freelance worker to work on their case or is this something you can do and just let them know in the bill?

Lisa Solomon: Yes. So Comment 6 to ABA Model Rule 1.1, which is about competence, instructs that a hiring attorney should ordinarily obtain the client’s informed consent before hiring a freelance lawyer.

Now, many State and Local Bar Associations have issued ethics opinions that required disclosure under some circumstances, other states mandate disclosure under all circumstances. I think the safest route, and this is especially if you practice in a State that hasn’t issued a governing ethics opinion, but even regardless if the ethics opinion — if there is an ethics opinion specific to your State, is just disclose and obtain consent to the use of a freelance lawyer, you’re never going to be dinged for disclosing something.

Christopher Anderson: Sure.

Lisa Solomon: That impacts the attorney-client relationship.

Christopher Anderson: And is this something that you recommend like lawyers can do like, for instance, just by putting it in the retainer agreements that sometimes we use them or it should have been disclosed specifically when they’re being hired in the case?

Lisa Solomon: Well, yes, first, one thing you can do is you can certainly advise the client in your retainer agreement that you do sometimes use a freelance attorney. But yes, I do think that that should also be disclosed at the time a freelance attorney is brought on, because again, depending on the language you’re using in your retainer agreement it says, “Sometimes”, right? So in some case the freelance attorney might not be used.

So just as if you might say in a conversation with a client, yes, I’m having my associate’s part work on these tasks on the case, it might help out with the discovery or what have you, then at that point it would be appropriate to say to remind the client of that provision in their retainer agreement and just let them know that you’ve now brought something on to help.

Christopher Anderson: Sure. Yeah, so you’ve been using the word “disclosure” and then you should disclose this to them, so it just kind of brings up like what does disclosure mean? How much do you have to tell them specifically? You have to tell them what you’re paying the freelance lawyer compared to what you’re billing them for the freelance lawyer.

Lisa Solomon: No. No. So that’s — the general answer is, no. So let me explain a little bit.

Christopher Anderson: Yeah.

Lisa Solomon: As long as payment of the freelance lawyers’ fee isn’t contingent on the outcome of the matter on which the freelance lawyer is working, you’re not required to disclose how much you’re paying with the freelance lawyer. That essentially means you don’t have to disclose the amount of your profit.

Christopher Anderson: Okay.

Lisa Solomon: And when you think about it that makes sense, because if an associate while working on the client’s matter, you certainly wouldn’t be obligated to reveal the associate’s salary to your client.

Christopher Anderson: Right, so this is distinctively different, for instance, you’ve mentioned like or you don’t put this in the part of the bill like where you would put court reporting or where you put some other services, photocopying maybe, which in a lot of cases if you do mark them up, you do have to be very clear about that markup. So you do distinguish the two?

Lisa Solomon: Yeah, that’s correct. So again, as I mentioned a few minutes ago, just make sure you bill the freelance lawyer’s time as — if you’re billing of course hourly — as a fee and now as a disbursement and you’ll be fine.

Christopher Anderson: Okay, and like you just mentioned like now counsel that work is sort of like the  HYPERLINK “http://www.match.com” match.com, which means that you’ve got lawyers working all over the country, is that right?

(00:20:03)

Lisa Solomon: That’s correct. We have lawyers in various jurisdictions.

Christopher Anderson: Yeah. So is it important, is it necessary, is it required that a freelance lawyer, like if I am hiring a freelance lawyer to help me out in a particular case, do they have to be barred in my venue in the jurisdiction of the case or how important is that?

Lisa Solomon: Right. Well, the answer to that is, in most cases it’s not required for the freelance lawyer to be admitted in your State, and this is because for two reasons. First, the freelance lawyer isn’t counsel of record and doesn’t have a direct relationship in that sense with the client, a direct attorney-client relationship.

Secondly, the freelance lawyer is always considered to be working under your supervision. This means that a freelance lawyer who isn’t admitted in your jurisdiction can work on what I call inside projects; legal research and writing, drafting and responding to discovery, drafting transactional documents. Now a freelance lawyer who is not admitted can also meet with clients and witnesses for example, as long as a freelance lawyer’s non-admitted status is disclosed. A freelance lawyer does have to be admitted to take depositions or appear alone in court, because in those circumstances the freelance lawyer won’t be under your supervision at that particular time, but a freelance lawyer can second chair a trial for which you are right there.

Christopher Anderson: Okay, interesting, yeah, that would be very, very helpful.

Lisa Solomon: This is one of the reasons that outsourcing legal research and writing projects and drafting is so popular, because it does give a lot of flexibility as to where the freelance lawyer is located and admitted.

And that’s another thing to point out going back to your comment about understanding now that there is a real growing group of experienced attorneys who provide these services is that good experienced freelance attorneys even if they’re not admitted in a particular State can jump in, in a State where they are not admitted because they understand the general outlines of legal concepts from State to State.

There may be some specifics, but for example they are doing legal research, you ask them to research specific questions. So don’t mistake me. A freelance lawyer is not going to charge for their learning curve. That’s why, for example, Now Counsel Network only uses experienced freelance attorneys.

Christopher Anderson: Lisa, so this brings up a question like let’s move on to the ethic side of the question, which is, are freelance lawyers bound by an ethical duty of confidentiality, of conflict of interest, like how do the ethical duties that I as the attorney have to my client transfer over to the contract lawyer?

Lisa Solomon: Sure. Well, that’s one of the differences between a freelance attorney and someone who is not an attorney admitted anywhere. An admitted attorney is bound by the same ethics rules that govern all lawyers. So that would include the duty of confidentiality, duty to avoid conflict of interest.

Now of course, conflict of interest should definitely be addressed before the engagement starts. If there is a conflict, you are not going to have an engagement with that freelance attorney, like confidentiality is an obligation that goes throughout the course of the matter and of course after the matter.

So what I recommend is that even though freelance lawyers are bound by the duty of confidentiality, you can include a provision in your agreement with a freelance lawyer that explicitly obligates the freelance lawyer to maintain the confidentiality of all client information that the freelance lawyer learns during the engagement.

Christopher Anderson: And now, I think that makes total sense and I totally agree that they are bound ethically by their own bar obligations, but yet, having that included in a contract I think protects the client as well as yourself. This makes it all explicit.

On the question of conflict of interest though, is that something – like if you are using somebody like you, like Now Counsel Network, is that something that the network takes care of checking into or is that again an individual where once I get the freelance attorney assigned I ask them to check their conflicts themselves?

Lisa Solomon: Right. Well, I can’t speak for all freelance attorney networks, but for Now Counsel Network we do collect the identity of the parties and we pass that on to the freelance attorneys during the match process, so we say, look, do you have a conflict with these parties? And if they do, then that match is not even made in the first place because that would be wasting the hiring attorney’s time. If they don’t and a conflict hasn’t happened yet — if they don’t and the match is otherwise an appropriate match, then that match can go forward.

(00:25:05)

Christopher Anderson: Cool. Well, coming down to the bottom I have got two more questions I want to ask of you kind of in a lightning round kind of way if you will, but the one particularly interests me is, how can a lawyer that’s working on contingent matters work with a freelance lawyer and not fall prey to some of the problems of fee splitting and that kind of thing?

Lisa Solomon: Right. Well, again, to avoid fee splitting issues you are not going to pay a freelance attorney on a contingent basis. I have generally found that freelance attorneys don’t want to work on a contingent basis.

Christopher Anderson: Sure.

Lisa Solomon: It would technically be permissible if the freelance attorney is admitted in your jurisdiction and you follow all of the rules that otherwise governs fee splitting between attorneys.

Christopher Anderson: Right. From jurisdiction to jurisdiction can be really challenging, yeah, depending, some are easy, some are harder.

Lisa Solomon: Yes, that’s correct. For this reason because of the complications that can be introduced by fee splitting Now Counsel Network in particular says, in its contract with freelance lawyers that if freelance lawyers may not agree to a contingent compensation. But, that doesn’t mean that certainly lawyers who represent clients on a contingency basis, for example personal injury lawyers, can still very profitably make use of freelance attorneys, and in fact, a number of my clients over the years have been plaintiff’s attorneys.

Christopher Anderson: Sure, that makes total sense. So if I am an attorney how can I be sure that my malpractice cover the work done by the freelance lawyer, how is that arranged with freelance lawyers in your experience?

Lisa Solomon: Right. Well, most malpractice policies automatically cover freelance lawyers for the work they do on the insured’s firm. Now of course because insurance coverage is a matter contract, you should read your policy and consult with your broker.

So with that said a freelance lawyer that you work with may carry his or her own malpractice policy, and if the freelance lawyer qualified under your policy as an insured, the insured versus insured exclusion that’s contained in most malpractice policies would bar you from seeking indemnity or contribution from the freelance lawyer.

A freelance lawyer would want to carry their own policy primarily to protect him or herself in case of an access judgment that’s not covered by your policy or in the cases where a freelance attorney is working for a lawyer who doesn’t have their own malpractice policy.

Christopher Anderson: Okay. Well, that makes sense. So based on your experience like talking to your carrier to make sure that the coverage is there but based on your experience working with these folks, most people’s coverage does account for the freelance attorney work?

Lisa Solomon: Yes, that’s correct.

Christopher Anderson: Awesome. Lisa, thanks so much. I wish I had another hour with you. This is just fascinating to me about all the different ways that freelance attorneys can help solo and small law firms really step up and use some much more experienced lawyers to not only enhance their capacity but to enhance their capability and their confidence. So this has truly been eye-opening. Thank you so very much for joining us.

Lisa Solomon: Well, thanks for having me, Chris.

Christopher Anderson: You are welcome, and that wraps up this edition of ‘The Un-Billable Hour’, the Law Practice Advisory Podcast.

Our guest today has been Lisa Solomon. You can learn more about her, you can email her at lisa@nowcounselnetwork.com, or check out the website there at  HYPERLINK “http://www.nowcounselnetwork.com” www.nowcounselnetwork.com.

Her Twitter handle is @lisasolomon and her LinkedIn is also lisasolomon, spelt exactly the same way.

I of course am Christopher Anderson and I look forward to seeing you next month with another great guest as we learn more about topics that help us build the law firm business that works for you.

Remember, you can subscribe to all the editions of this podcast at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on iTunes. Thanks for joining us and we will see you again soon.

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Thanks for listening to ‘The Un-Billable Hour’, the Law Practice Advisory Podcast. Join us again for the next edition, right here with Legal Talk Network.