Yesterday, Findlaw published Hiring a Remote Freelance Lawyer: is it Right for Your Practice?, by Jonathan Tung. Much of the advice in this trainwreck of a poorly-written post is wrong.
The most significant piece of bad advice in the post is the implication that paying a freelance lawyer constitutes fee-splitting:
However, not all is lost. It is ethical to include an arrangement in your representation agreements that will allow for [sic] you to split fees with another [sic] freelance attorney so long as those fees are reasonable, proportional, and otherwise made known and consented to by the client. In which case, paying the other attorney is less of an issue.
It’s true that (as I’ve previously written), if a hiring lawyer wants to make a profit on a freelance lawyer’s time, the client must consent to the rate at which the hiring lawyer bills for that time. And it’s also true that the only ethical restraint on the amount of profit the hiring lawyer can make is the requirement that the fee charged for the services be reasonable. In this regard, billing for a freelance lawyer’s time is no different than billing for an associate’s (i.e., employee’s) time. By the same token, as long as the agreement between the hiring lawyer and the freelance lawyer requires the former to pay the latter regardless of when, whether, or how much the client pays the hiring attorney, the payment does not constitute fee splitting, any more than a lawyer’s payment of an associate’s salary constitutes fee splitting.
Of course, if a freelance lawyer agrees to a fee arrangement in which the freelance lawyer is paid a certain percentage of the fees the hiring lawyer receives from either: (1) the client on whose case the freelance lawyer works; or (2) the opposing party (following settlement or trial), that would constitute fee-splitting. However, no smart freelance lawyer would agree to such terms because freelance lawyers don’t choose the hiring lawyer’s client; don’t choose the case; and don’t have the ultimate authority to make strategic decisions about how the case will be handled.*
Tung also gives bad advice concerning the distinction between independent contractors and employees. First, although he quite appropriately notes that employers sometimes misclassify employees as independent contractors, he fails to explain that the issue is important because of potential consequences in many areas, including tax, unemployment compensation, workers compensation and wage and hour laws. He further opines that “[a] decent freelancer will have considered this ahead of time and should include a clause that either [sic] waives his rights to sue you under a misclassification theory….” While a hiring lawyer might seek such a waiver, it’s not in a freelance lawyer’s interest to include such a provision in his or her standard services agreement.
Tung’s assertion that “[s]ince you are small, you have less to worry about with regards to an employment suit” has it backward. Under wage and hour laws such as the FLSA, an employer who misclassifies an employee as an independent contractor can be subject to multiple damages, liability for which can have an outsize impact on a solo or small firm.
While Tung correctly notes that the degree of control a hiring firm exercises over how a freelance lawyer performs his or her work is a significant factor in determining whether the lawyer is an employee or an independent contractor, his contention that a hiring firm is less likely to be considered an employer if it “give[s] a freelance attorney most of the work that could be qualified as housekeeping, [such as] [b]asic appearances at court, hearings, responses to pleadings, that sort of stuff,” misses the mark. A lawyer who researches and drafts a dispositive motion or appellate brief, or second chairs a trial, is neither more nor less likely to be considered an independent contractor than one who appears for calendar calls and drafts answers.
Finally, Tung closes his post with “Need a great hire? Post a job with Indeed.” The mystery of why a post about hiring freelance lawyers that just spent three paragraphs warning about misclassifying employees as independent contractors would suggest advertising for a freelance lawer on a website for job seekers instead of a general marketplace website that matches freelancers with business looking for independent contractors (such as eLance) is solved in the fine print: “FindLaw has an affiliate relationship with Indeed, earning a small amount of money each time someone uses Indeed’s services via FindLaw.” Moreover, since freelance lawyers are independent businesspeople, better approaches to finding qualified freelance lawyers include asking colleagues for referrals, searching the web for individual freelance lawyers’ websites or using the services of a freelance lawyer network like NCN.
A Word About the Writing
Since I write about good writing, the poor quality of Tung’s writing was almost as grating to me as the inaccurate and incomplete content. Almost every sentence in the post should be rewritten. Let’s look at just the first paragraph:
Like it or not, physical hiring is slowly going the way of the dodo bird and remote hiring is in.
I’ve read plenty of articles about the gig economy and the use of independent contractors instead of employees. None use the term “physical hiring.” Moreover, not all remote workers are freelancers/independent contractors.
More and more, attorneys are finding themselves mobile rather than sitting down in an office.
First, not all remote workers are mobile. Second, the Forbes article Tung links to has nothing to do with either mobile or remote workers: it’s about the rise of side work amid the continuing glut of new law grads.
This is bad news for lawyers looking for stable employment, but as they say – – one’s tragedy is another’s cause for celebration.
Literally nobody says that. A Google search for that phrase produces one result: Tung’s Findlaw article. And, if “they” did say that, “they” certainly wouldn’t use two hyphens instead of an em-dash. In fact, “they” wouldn’t use a double hyphen/em-dash at all: they’d use a comma or colon after “say.”
At Least FindLaw is Consistent
Back in 2010, Kevin O’Keefe wrote:
But boy has West Publishing, now part of Thomson Reuters, fallen. West, under the FindLaw brand, is now publishing spam law blogs full of little more than mindless crap, all in the name of selling Internet marketing services to unknowing lawyers. Shameless.
The same year, Eric Turkewitz called FindLaw’s writers “dreck-bloggers.” Those criticisms are as true now as they were six years ago.
*Now Counsel Network freelance lawyers are prohibited from accepting contingent payments for engagements with firms that use NCN’s matching services.