Many new attorneys start out by performing work for other firms. If you are a contract or freelance attorney, you are subject to the same rights and duties as a full-time associate (for the duration of your contract). You respect confidentiality, attorney-client privilege, and all the other duties related to client representation. In addition to these, one glaring issue that should immediately pop out to you is conflicts of interest. Freelance attorneys typically don’t work for one firm; they work for several (sometimes concurrently).
California Rule of Professional Conduct 3-310 governs attorney conflicts, including freelance attorneys. Rule 3-310 prohibits attorneys from accepting or continuing representation of a client if a conflict or potential conflict is affecting the member’s representation. Practice pointer: You should maintain accurate records of your clients and firms. While the firm is engaging the contract, the hired attorney has the most direct obligation; for practical matters, the contract attorney will be expected to furnish a complete and accurate conflicts list.1
However, just because an opposing party appears on the conflict list, does not mean that a conflict has arisen. A conflict arises if the attorney had a “substantial relationship” and obtained “confidential” information during the course of his or her representation of that client, conflicts are assessed on a case-by-case basis (i.e., there is no imputation to the firm).2
“Of Counsel” vs. Contract Attorney
The traditional use of freelance attorneys is for temporary projects, like coding a big document production or making an appearance. Most of the projects are limited, have little to no client interaction, and are of short duration. But, since the Great Recession, a new trend has emerged of law firms using long-term contract attorneys on a variety of matters. The original ethical opinions dated back to the early 90s and did not contemplate long-term freelance attorney work. If you fall into this situation, are you a freelance attorney or something else?
According to California Rule of Professional Conduct 1-400(E)(8), an attorney is “of counsel” if there is a “close, personal, continuous and regular relationship” with a named firm. The “of counsel” can maintain a separate source of work, so long as conflicts and other ethical implications do not arise.3 Unlike the case-specific conflict analysis for a freelance attorney, however, an “of counsel” lawyer in California is deemed part of the law firm for conflict purposes, including imputed conflicts of interest. Under this single de facto firm analysis, current and former clients of every firm lawyer and the “of counsel” attorney become relevant to all the lawyers’ respective ethical obligations and potential disqualifications. Opinion 1993-129 states that “if the ‘of counsel’ is precluded from a representation by reason of rule 3-310 of the California Rules of Professional Conduct, the principal is presumptively precluded as well, and vice-versa.”
Therefore, when accepting new projects from other law firms, a lawyer who has an “of counsel” relationship with Firm A must run each new matter through Firm A’s conflicts check or risk imputing conflicts onto the whole firm.
If your relationship with the law firm is closer to a freelance attorney than “of counsel,” then when are you conflicted out for purposes of complying with Rule 3-310? In Global Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483, 489, the Court disqualified former general counsel for Global stating:
“When a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney or to subordinates for whose legal work he was responsible, the attorney's knowledge of confidential information is presumed.”
If client representation is a spectrum, with pure-freelance attorneys on one end, of counsel somewhere in the middle, and on the other end a traditional attorney-client relationship, then Rule 3-310 contemplates a situation somewhere between freelance lawyers and of counsel.
The analysis of the substantial relationship is heavily fact-based. But, here are some general rules you can live by (if you employ freelance attorneys):
- Limit their interaction with clients;
- Strictly control their access to unrelated aspects of the case;
- Take steps to screen freelance attorneys from learning confidential information;
- Limit access to the office; and
- Freelance attorneys should not participate or attend meetings in which other matters are discussed.
No offense contract attorneys (I was one as well, not too long ago), but most of the risk is borne by the hiring law firm — not you. Some tips for freelance lawyers, since your supervising attorney isn’t likely to be familiar with these procedures, keep these rules in mind. Specifically, remember to keep confidential information confidential. I would recommend working in separate folders for each contract and client; keep everything as separate as possible. If you do research and motion work, then separate out the legal research from factual information (so you can use your drafts for future jobs). Your number two goal (after doing a good job) is to not be the source of an imputed conflict and vicarious disqualification.
1 State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”), Formal Opinion 1992-126.
3 State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”), Formal Opinion 1993-126.