How can you ethically use a contract lawyer? Host Rocky Dhir talks to Penny Robe about what it means to be a contract lawyer at the State Bar of Texas’ 2019 Annual Meeting. The two discuss how her interest in law practice management inspired her to become a contract lawyer, how the ABA and Texas rules differ, and the appropriate steps to legally and ethically bring on a contract lawyer.
Penny Robe currently serves as the principal attorney at Robe Law Firm.
Special thanks to our sponsor, LawPay.
State Bar of Texas Podcast
State Bar of Texas Annual Meeting 2019: Ethical Use of Contract Lawyers with Penny Robe
Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host, Rocky Dhir.
Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast, recorded from the Annual Meeting in Austin, Texas. This is Rocky Dhir and I’m the host for today’s show which is being sponsored by LawPay, trusted by more than 35,000 law firms to accept legal payments online. It’s the only payment solution offered as a member benefit by the State Bar of Texas.
Joining me now I have Penny Robe. Penny welcome.
Penny Robe: Thank you. Happy to be here.
Rocky Dhir: So today’s topic, your topic for today is going to be about the ethical use of contract lawyers, which I don’t know that a lot of lawyers think about, but before we get into that, tell us a little bit about yourself.
Penny Robe: Okay, so I’m a solo practitioner in Plano, Texas. I’ve been practicing law 27 years.
Rocky Dhir: Hey shout out to Plano, yes.
Penny Robe: Yeah, Plano is great.
Rocky Dhir: I am in Plano, it’s great, yes.
Penny Robe: Are you? Oh cool, yeah, so – yeah, I’m like at Granite Park area.
Rocky Dhir: Oh okay, I’m at Shops at Legacy.
Penny Robe: Oh yeah, very close by, we should have lunch.
Rocky Dhir: We are right there, yeah. Yeah, we could did the little telephone thing with the Styrofoam cups.
Penny Robe: We really could.
Rocky Dhir: Yeah, absolutely.
Penny Robe: Stone throw, but they can hurt, so we won’t throw any stones.
Rocky Dhir: Somebody will sue us for throwing a rock if it hits somebody.
Penny Robe: Exactly.
Rocky Dhir: And what do in your law practice?
Penny Robe: So my practice, I do probate and guardianship, estate planning, I do the family stuff like divorce and child custody and I also do transactional business. I was in-house for about a decade so I do small business — any business too small to have an in-house attorney and then I was a JAG in the Air Force, so I also do a lot of military law.
Rocky Dhir: Oh, thank you for your service.
Penny Robe: Yeah, my pleasure, my honor. And I was a prosecutor before that, so.
Rocky Dhir: Also double service to the community.
Penny Robe: Yes, I have definitely an uncommon career path, so.
Rocky Dhir: Well, now what got you into the topic of contract lawyers? How did that come about?
Penny Robe: So, I didn’t start being in private practice until I was 17 years into my career and so law practice management became of high interest at that point.
Rocky Dhir: Sure.
Penny Robe: I’m actually currently the Chair of the Law Practice Management Committee for the State Bar of Texas, so all aspects of law practice management are of interest to me and this particular topic I wanted some help early on and I looked at the rules for how I could bring somebody into my firm in a way that I could afford, and doing it as a contract is a more affordable way than me picking up a base salary when I’m new at this and don’t know don’t have enough revenue.
Rocky Dhir: Benefits in the whole nine yards.
Penny Robe: Exactly.
Rocky Dhir: So was there something that surprised you about the rules like when you read it?
Penny Robe: The rules are surprisingly restrictive in Texas compared to other states. The ABA rules are much easier and more generous than the Texas rules, but our fee splitting rules makes it a little bit challenging.
Rocky Dhir: Okay, can you walk us through? So what does an ABA rule say or what other states say and then what happens here in Texas?
Penny Robe: So the ABA rule allows you to have somebody work for you and let’s say — I’m going to use not real numbers obviously, but let’s say you’re paying that attorney a $100 an hour and under ABA rules, you can charge the client $200 an hour, the contract attorney, no problem.
In Texas, that is forbidden because that is fee-splitting.
Rocky Dhir: Got it.
Penny Robe: And so the only way you can pay your contract attorney one rate and then charge the client — well, there’s a couple of paths like that you can do that, which is what I’m going to talk about. So one path to do it is going to be to truly have an outsourced attorney so — and I actually do this for other people sometimes because I’ll draft military retirement division orders, for example.
Rocky Dhir: Okay.
Penny Robe: It’s pretty specialized, it doesn’t come up that much for a divorce attorney and people hire out QDRO attorneys the same kind of thing. So if you’re going to do that, you just pay that attorney, they get paid what they get paid. Sometimes directly by the client but you’re not running it through your firm and do an up-charge because that would be fee-splitting forbidden.
So that’s one way, it’s just the straight pass-through. You can bill it through your firm or not, but that outsource attorney is going to get with a client pace.
Rocky Dhir: But the attorney is doing the outsourcing does not mark up the fees in some way, it’s still just a straight password.
Penny Robe: Well, they can themselves like, I mean, my fee is my fee but it’s the same as if the client is my client.
Rocky Dhir: Okay.
Penny Robe: So it’s not a subcontract in the way we sometimes think of it in a business sense.
Rocky Dhir: Okay.
Penny Robe: So I’m basically helping that client and I can have an agreement through the firm but they can’t pay me a different amount than the client pays them for my services if I’m truly outsourced like that.
Rocky Dhir: Okay, okay.
Penny Robe: So, there’s no up-charge allowed. Now, maybe they could charge some administrative fee or see option two —
Rocky Dhir: Oh, the second path.
Penny Robe: Yes, the second path, would be to have disclosed up-charge or discount to the client and the client has to consent in writing.
Rocky Dhir: Does that ever happen though, I mean, practically speaking does it happen?
Penny Robe: I think it does not in the example — not in that example but I think it does happen sometimes in personal injury cases for example, where you’ve had one firm do some work already and they are switching to another firm and it’s a contingency case, you’re going to have a written agreement out of that final amount, who’s getting what percentage and that has to be consented to in writing by the client beforehand.
Rocky Dhir: If you’re going to talk about this topic then I assume there are lawyers who don’t know about these rules, is there some level of malignance may be of what the law says, what the rules say?
Penny Robe: I do think there is especially because the ABA rules allowed us, and so if people don’t go to the right source, they can think they’re doing right because they’re following the ABA guidance and —
Rocky Dhir: So they go to the computer and they search for ethical rules on contract lawyers and they pull up the wrong set of rules.
Penny Robe: Right. Yes or maybe they’re using some national firm because some — there’s some companies that have a business model to do this, where they’re bringing in contract attorneys and it has to be written clearly in writing who’s getting what or the next path is to associate that attorney with your firm.
So if you’re a firm that does temp attorneys, you have to have a “firm” of all those temp attorneys and then you can pay your — that temp attorney one thing even if it’s a contract versus an employment situation, and charge the client something else but they’re your — it’s your firm, law firm, that’s the way Texas views it.
So I can definitely have a firm. I can have an attorney in my firm as an associate for example of counsel, they have to be part of my firm though for me to pay them something other than what the client is paying them unless that client consents in writing.
Rocky Dhir: So they’re an associate presumably that means that there’s an employment relationship and now the employment rules kind of come into play, is that —
Penny Robe: Maybe but you can have an associate that you’re paying as a contractor depending on whether you follow — then you got to worry about the IRS rules for when you have a misclassified employee, that’s a whole another talk.
Rocky Dhir: So then they are not just a 1099 employee, now you might have to pay 941 because it’s a contractor but they say that’s an employee —
Penny Robe: If you are paying somebody on a 1099, that’s an independent contractor, that’s what I’m talking about.
Rocky Dhir: Okay.
Penny Robe: So if you’re going to do that you can, but they have to be part of the law firm, if you’re doing that rather than a W-2.
Rocky Dhir: Got it. So how do you get somebody to be part of your law firm?
Penny Robe: You do it by basically putting it out there that they’re part of your law firm, but when you do that they’re part of your professional liability, so if you have the malpractice insurance, you need to include them and also conflicts of interest is the big trigger there as well.
So if somebody becomes part of your law firm then all their conflicts are yours and all of yours are theirs.
Rocky Dhir: It’s like a marriage.
Penny Robe: It is, absolutely like a marriage. Yeah, so that’s the big pros and cons if you’re looking at it. So that’s where if it’s a one-off, like the example I was giving with drafting QDROs, you wouldn’t want to associate with every law firm that needs a QDRO as a contract attorney, that would not make sense.
Rocky Dhir: Now, let’s say you get a traditional contract lawyer and they’re not part of your firm, then if you’re the lawyer hiring this contract attorney, are you now on the hook for any malpractice that that contract lawyer performs? What are your ethical obligations in that particular scenario?
Penny Robe: So if you’ve made them part of your firm, then you are.
Rocky Dhir: Sure, but if they’re not part of your firm, they are just a contract attorney.
Penny Robe: Then you’re not, that’s where you have to either do it as the straight pay and I think doing that without telling the client is hard.
Rocky Dhir: Sure.
Penny Robe: Anyway, like you can have in your fee agreement, I have the right to hire a subcontractor, other attorneys, but if you’re going to pay them other than what you billed the client for them, then it has to be revealed to the client. It gets interesting because like some attorneys will say, well, I’ll draft for you, go straight for you.
Rocky Dhir: Sure.
Penny Robe: That has to be revealed because you’re still fee-splitting even if they get no fee unless you don’t bill the client and everybody is working for free, but working for free is a form of fee-splitting if you get paid for the work. You see what I mean?
Rocky Dhir: Got it.
Penny Robe: So that makes it a little bit tricky. Sometimes people will think, well, I can do a ghostwriter, I never tell the client that that’s an area where I needed help. You’re not helping yourself to do that because then you’re fee-splitting in the other direction, like we all think of it as don’t fee-split by up-charging and only giving a 100 to the attorney but you keep 200.
Rocky Dhir: Sure, sure.
Penny Robe: But the opposite is true as well, if you say, I’m going to get this help but I’m not going to let the client know how much I needed the help, like it’s my first one and I needed help. If you bill that, that’s still fee-splitting.
Rocky Dhir: So it sounds like disclosure; full disclosure is kind of your best bet.
Penny Robe: Disclosure is the key, absolutely.
Rocky Dhir: I’m sure there’s a lot more in this topic to cover, but I’ll ask you a kind of one final question just to kind of help the listeners know where to go if they’re interested so that they don’t go down the wrong path and they don’t go to the wrong set of rules, where should they go to get the right guidance on how to properly and ethically and legally bring on a contract attorney?
Penny Robe: Yeah, absolutely, so well, if they’re here, it’s in my paper.
Rocky Dhir: Okay, well, there you go, yeah.
Penny Robe: Absolutely, but the source materials I use in writing my paper there’s an Ethics Opinion #577 and then the fee-splitting rule is Texas Disciplinary Rules 1.04(f) on fee-splitting.
Rocky Dhir: So, you go to the State Bar website and look for those?
Penny Robe: Yeah, I think Texas Ethics maybe is the website for the opinions; you know the Ethics Opinion? I can’t remember that website but it’s 577 as the opinion, and that those are both attached to my paper as well.
Rocky Dhir: Okay, we’re going to get to your paper in just a second but it does look like we’ve reached the end of our program for now.
I want to thank you, Penny, for joining us today, so thanks for being here.
Penny Robe: Yeah, my pleasure, absolutely.
Rocky Dhir: Now, if our listeners do have questions or let’s say that they want to get your paper, what’s the best way for them to reach you?
Penny Robe: The easiest is probably going to be email, which is pretty straightforward, [email protected]. So Penny like the money, Robe like a judge wears.
Rocky Dhir: Nice, okay. Unfortunately, that is all the time we have for this episode of the State Bar of Texas Podcast brought to you by LawPay. Thank you again LawPay.
Penny Robe: Thanks.
Rocky Dhir: All right, go pay.
Penny Robe: I use LawPay, thanks.
Rocky Dhir: Yeah, we love that. Also thank you to our listeners for tuning in. If you like what you heard, please rate and review us in Apple Podcasts, Google Podcasts, Spotify or your favorite podcasting app.
I’m Rocky Dhir, until next time thanks for listening.
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