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Is ER for Lawyers engaging in the unauthorized practice of law?

ER for LawyersFreelance lawyers come in different flavors. Some, like me, are generalists, helping lawyers nationwide in a variety of practice areas. Some help lawyers in different practice areas, but work with lawyers only in states where they themselves are admitted to practice law. Some, like Illinois lawyer Kathryn Thompson, who recently launched ER for Lawyers, work with lawyers nationwide but focus on a particular area of expertise. For Thompson, that area is legal ethics: the “ER” stands for “ethics research.” The problem is, some of the services that ER for Lawyers provides may constitute the unauthorized practice of law (UPL).

A brief review of the ethics of using freelance lawyers

The leading ethics opinion concerning working with freelance lawyers is ABA Formal Op. 08-451. Here is the most important portion of that opinion, for purposes of this discussion:

There is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by Rule 1.1.…

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…Rules 5.1 and 5.3 impose additional obligations on lawyers who have ‘direct supervisory authority’ over other lawyers and nonlawyers. Rule 5.1(b) states that ‘[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.’ Correlatively, Rule 5.3(b) requires lawyers who employ, retain, or associate with nonlawyers to ‘make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.’ These provisions apply regardless of whether the other lawyer or the nonlawyer is directly affiliated with the supervising lawyer’s firm.

The challenge for an outsourcing lawyer is, therefore, to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately.

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Ordinarily, an individual who is not admitted to practice law in a particular jurisdiction may work for a lawyer who is so admitted, provided that the lawyer remains responsible for the work being performed and that the individual is not held out as being a duly admitted lawyer.

Although some state and local bar associations ethics opinions concerning freelance lawyering depart from Op. 08-451 in certain respects (such as the circumstances under which the hiring attorney must reveal, and obtain client consent to, the use of a freelance attorney), all recognize that the hallmark of an outsourcing relationship between a hiring attorney and a freelance attorney is the hiring attorney’s ability to competently supervise the work performed by the freelance attorney.

In 2012, the ABA adopted Comment [6] to Model Rule 1.1 (competence). That comment states, in relevant part:

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.

(Emphasis supplied).

The services ER for Lawyers offers

ER for Lawyers offers two kind of services. First, it offers its services to lawyers “who concentrate their practices in ethics and professional responsibility matters, including in-house and private ethics counsel and lawyers who prosecute or defend other lawyers in disciplinary and civil proceedings.” These services are consonant with the ethics rules governing freelance lawyers.

ER for Lawyers also provides what it characterizes as “a form of ‘self-help‘” to lawyers:

ER for Lawyers assists attorneys in identifying and researching the ethics issues relevant to their particular fact pattern. Our work product is intended to provide a form of self-help to lawyers and does not advocate a particular course of conduct. Thus, ER for Lawyers does not advise attorneys regarding the use or legal effect of the research, recommend a specific course of action to follow or express an opinion on whether a lawyer’s described or alleged conduct constitutes a violation of a state’s rules of professional conduct.

Since ER for Lawyers cannot advise you as to whether an ethics breach exists or offer an opinion about available remedies, a hiring lawyer who finds himself or herself unable to understand, assimilate or apply the information set forth in the research report should consider hiring a lawyer in his or her jurisdiction who specializes in ethics and professional responsibility.

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The information provided by ER for Lawyers is intended as a starting point to help lawyers decide whether an ethics issue warrants further consideration or action. The research report may include all the information you need to draw a conclusion, make a decision, or put your mind to rest about an ethics issue. On the other hand, it may raise still more unresolved issues. It is your responsibility to decide how to use the information we provide. You may decide to take some course of action to forestall an ethics violation, request additional research, or hire an ethics attorney in your jurisdiction. You may decide to take no action whatsoever. How you decide to use the research is ultimately up to your discretion.

I’ll call these services “direct services.” The mission of ER for Lawyers is

to be an ‘ethics lifeline’ for lawyers who need immediate or emergency assistance with legal ethics questions. The virtual ER provides lawyers facing ethics dilemmas with an affordable, convenient, on-demand alternative to hiring an attorney to represent them. By assisting lawyers in identifying, researching and analyzing ethics issues, ER for Lawyers provides lawyers with the resources necessary to make their own informed decisions about legal ethics matters.

The ER approach empowers lawyers to take proactive, self-help measures to resolve ethics dilemmas before they harm clients, tarnish their professional reputation, or ripen into claims and grievances. Since the purpose of the professional conduct rules is to protect the public, the ER business model is a win-win-win situation for clients, lawyers and the organized bar.

As a practical matter ER for Lawyers provides an economical option for lawyers who might otherwise avoid outside help or take no action whatsoever to address and resolve their ethics challenges. In situations when retaining a lawyer is unwarranted or impractical or too expensive, ER for Lawyers provides a middle ground for lawyers short of entering into a full-blown lawyer-client relationship to obtain ethics ‘advice.’

ER for Lawyers “usually delivers a research memo referred to as the ER Research Report at the conclusion of the research. However, [they] will tailor the end product to suit your budget and needs, whether it means rounding up a single ethics opinion in your jurisdiction or compiling a fifty-state survey.”

The ER for Lawyers website repeatedly reiterates that the company provides services to lawyers with only “some minimal, continuing degree of competence in ethics.” See also FAQS (“ER for Lawyers serves attorneys who possess every level of ethics expertise, [including] those with minimal ethics knowledge….” You can be an ER for Lawyers client if “[e]thics is outside your realm.”). At the same time, the website concedes that “the ‘law of lawyering’…is a whole area of “law” unto itself. And unless you concentrate in legal ethics and professional responsibility, it is not the one you normally ‘practice.'” And again: “[C]ompetence in ethics and professional responsibility matters sometimes requires specialized knowledge and expertise.”

What ER for Lawyers says about its provision of direct services, and why it’s problematic

Not surprisingly, the ER for Lawyers website is chock-full of language disclaiming the creation of an attorney-client relationship. From the terms of use;

Lawyers using the services of ER for Lawyers LLC are ultimately responsible for the use or non-use of any work product provided by us. It is the responsibility of the lawyer to properly supervise the work product and make a professional determination about the relevance, accuracy, completeness, adequacy, appropriateness, applicability and currency of the information provided.

(Emphasis supplied). From the FAQS:

Although ER for Lawyers is lawyer-owned and operated, and a licensed lawyer performs the research, we do not enter into a lawyer-client relationship with our clients or act in a representational capacity. Thus, the ER does not provide the hiring lawyer with an opinion or advice on how to proceed, advocate for the lawyer’s position, or engage in tactical or strategic discussions about the issues.

What we do provide is a comprehensive, neutral overview and analysis of the issues presented. It is the responsibility of the hiring lawyer to decide how to utilize the information provided by ER for Lawyers.

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At ER for Lawyers we do not represent or enter into a lawyer-client relationship with our clients, proffer an opinion or advice, or act as an advocate for our clients. What ER for Lawyers does provide is an objective, thorough examination and analysis of the issues presented, which is compiled into an ER Research Report.

With respect to the foundational requirement that a hiring attorney supervise the work of a freelance attorney, Thompson reasons:

It is now a widely accepted practice for lawyers to outsource or hire independent contractors to perform both legal and non-legal services. However, there is one important caveat to keep in mind when services are outsourced to out-of-state or foreign providers. Whether or not a contractor is a non-lawyer or a lawyer unlicensed in the hiring lawyer’s jurisdiction, the rules regulating the unauthorized practice of law (set forth in ABA Model Rule 5.5 and its state counterparts) require that the hiring attorney adequately supervise and oversee that contractor’s work. In fact, a research lawyer who is not licensed in the relevant foreign jurisdiction is considered a “non-lawyer” under the hiring lawyer’s ethics rules.

As a result of ABA Model Rule 5.5 limitations on multistate practice, so-called freelance lawyers who provide legal research (and/or writing) services to out-of-state attorneys generally do so as subcontractors working under the supervision of the foreign attorney. Thus, it is not necessary for a research lawyer to be licensed in the state where he or she provides services as long as the work is supervised by a lawyer who is licensed in the local jurisdiction.

That’s why ER for Lawyers requires that lawyers ‘supervise’ our work product—to ensure that we do not engage in the unauthorized practice of law and that you, the hiring lawyer, do not assist in the unauthorized practice of law. Under the terms of our professional services contract a hiring lawyer must certify that he or she will oversee and remain ultimately responsible for our work product.

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As noted above, whether or not a hiring lawyer is obligated to ‘supervise’ the work of a research lawyer pursuant to ABA Model Rule 5.5 is unclear. Rule 5.5 clearly envisions that the work being outsourced (and thus subject to supervision) is being undertaken for the benefit of the hiring lawyer’s client. And that is generally the case in the context of a lawyer outsourcing legal research services to an out-of-state lawyer. The same is not necessarily true with respect to ethics research, which is often commissioned to assist the lawyer in clarifying his or her own ethical obligations.

As you can see, the last two paragraphs above contradict each other. Moreover, Thompson’s attempt, in the second paragraph, to assuage the concerns of lawyers who do not concentrate in legal ethics but who wish to hire ER for Lawyers to provide direct services depends on an analytically questionable distinction between “legal” research and “ethics” research (remember, Thompson says elsewhere on the website that the “law of lawyering” is “a whole area of ‘law’ unto itself”).

The nub of the issue is this that there is no hiring attorney-freelance attorney relationship without a third party: the hiring attorney’s client, for whose benefit the hiring attorney retains the freelance attorney. Attorneys to whom ER for Lawyers provides direct services cannot “supervise” the provision of those services to themselves.

One way to demonstrate the problems with Thompson’s reasoning is through a hypothetical. Let’s assume that a California lawyer who practices commercial real estate is getting divorced. He wants to hire me (a freelance lawyer licensed only in New York) to perform legal research relating to child custody issues. He wants me to assist him in identifying and researching the ethics issues relevant to his particular fact pattern. He does not want me to advise him about the use or legal effect of the research, or recommend a specific course of action to follow. If I accepted that engagement, would I be engaging in the unauthorized practice of law in California? I submit that I would. Certainly, I could provide the services described in this paragraph to a New York commercial real estate lawyer, but in that case, I wouldn’t be acting as a freelance attorney; instead, I would be providing limited-scope representation (a/k/a unbundled legal services).

Thompson would presumably argue that the distinction between my hypothetical and the direct services that ER for Lawyers provides is that the California commercial real estate lawyer is not required to have any competence in California matrimonial law, whereas every licensed attorney who hires ER for Lawyers must have some minimal competence in legal ethics (presumably demonstrated by passing the MPRE). But that’s just it: “minimal competence” is not necessarily sufficient to supervise the work of a freelance lawyer in any practice area, to say nothing of legal ethics, an area of law that Thompson describes as a “zonkey,” a “one-of-a-kind hybrid of ethics rules, bar opinions, disciplinary findings, court rules, state and federal statutes, caselaw [and] moral decisionmaking.”

Furthermore, if the only thing necessary to avoid the conclusion that one is not engaging in UPL is to limit the engagement to researching the issues relevant to the client’s particular fact pattern and delivering a research memo in which the researcher refrains from advising clients regarding the use or legal effect of the research, recommending a specific course of action to follow or expressing an opinion on whether particular described conduct constitutes a violation of law, then any non-lawyer (whether a lawyer not licensed in the client’s state, or an individual who is not licensed in any state) should be able to provide the same services to any client (regardless of whether that client is himself or herself a lawyer).

Another concern about ER for Lawyers

The terms of use on the ER for Lawyers website define “Services” as the provision of “legal ethics research and information to licensed lawyers.” ER for Lawyers disclaims all liability in connection with the use of its services:

ER for Lawyers LLC is not responsible or liable in any manner…in connection with our Services….

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Under no circumstances will ER for Lawyers LLC be responsible for any loss or damage…resulting from anyone’s use of our…Services….

(source)

NOTWITHSTANDING ANY DAMAGES USER MAY INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF ER FOR LAWYERS LLC AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID FOR THE PRODUCTS, SERVICES AND INFORMATION OR U.S. $1.

(source)

Preliminarily, in light of Thompson’s background, I’m certain that all services she provides through ER for Lawyers will meet the highest standards. Nevertheless, even the most knowledgeable and qualified professionals can make mistakes. These disclaimers at least raise the question of whether ER for Lawyers carries any malpractice/E&O insurance and, if so, what the policy limits (per claim and aggregate) are. Attorneys who hire ER for Lawyers to perform services in connection with an ethics issue relating to their own conduct are particularly at risk. While I have not researched the issue, I suspect that all states prohibit attorneys from limiting their potential malpractice liability in their retainer agreements. Thus, if ER for Lawyers is considered to be practicing law when performing direct services, this prohibition would invalidate ER for Lawyers’s liability disclaimers. However, even assuming that ER for Lawyers carries a malpractice policy, the policy may not cover claims arising out of UPL. In that case, any ultimate recovery would be limited to the assets of ER for Lawyers and (assuming that the LLC veil can pierced) Thompson’s own assets.

Conclusion

The practice of outsourcing substantive legal work to freelance attorneys is well established; indeed, the ABA itself has heralded the benefits of outsourcing on more than one occasion. As a result, the pool of highly-qualified lawyers who seek the intellectual stimulation, flexible work hours and reasonable income that a freelance lawyering practice provides continues to grow.

ER for Lawyers is an exciting newcomer to the field of freelance lawyering, and legal ethics practitioners are fortunate to have a highly-qualified freelance lawyer like Kathryn Thompson available to them. However, the company’s provision of direct services to lawyers outside Illinois raises a substantial issue concerning whether such services constitute UPL. I look forward to Thompson’s response to the issues raised in this post.

Update (June 25, 2016): ER for Lawyers is no longer in business.

Comments (6)

  1. […] Times-Union] * A freelance lawyer focusing on legal ethics raises ethical concerns. How meta. [Legal Research and Writing Pro] * Guess who didn’t file an amicus brief in King v. Burwell? Does the Chamber of Commerce […]

  2. […] * A freelance lawyer focusing on legal ethics raises ethical concerns. How meta. [Legal Research and Writing Pro] […]

  3. […] Times-Union] * A freelance lawyer focusing on legal ethics raises ethical concerns. How meta. [Legal Research and Writing Pro] * Guess who didn’t file an amicus brief in King v. Burwell? Does the Chamber of Commerce […]

  4. Reply Osibogun and Partners - Law Firm

    […] Times-Union] * A freelance lawyer focusing on legal ethics raises ethical concerns. How meta. [Legal Research and Writing Pro] * Guess who didn’t file an amicus brief in King v. Burwell? Does the Chamber of Commerce […]

  5. Reply Edward Wiest

    For what it’s worth, a lawyer seeking advice on ethical/professional responsibility issues (no matter how knowledgeable on ethics or other matters) should not be seen as being capable of “supervising” the attorney providing him with information concerning ethical compliance. For such purposes, I’d say the lawyer seeking advice is no different than a lay client. Advice (even if purported to be no more than the identification of applicable law, rules, and opinions) from the service Lisa has discussed, if provided outside the jurisdiction in which ER for Lawyers’ professionals are licensed, thus seems to be an easy target for attack under UPL rules (even outside the two jurisdictions in which I am admitted to the Bar).

  6. Reply Kathryn Thompson

    Lisa:

    Your contention that ER for Lawyers is engaged in the unauthorized practice of law (UPL) is not only unsupported but refuted by the weight of existing ethics and legal authority. Noticeably absent from your analysis is the entire body of ethics opinions that address the unique ethics issues arising in the specific context of ethics consultations between lawyers. In fact, you omit the two state ethics opinions to date that have directly addressed the UPL issue in the context of an “outsourced” ethics consultation between lawyers. Both have concluded that the services do not constitute the unauthorized practice of law.

    Your reliance on the general (and generic) outsourcing rules to support your conclusions about ethics consultations is misguided. It has been widely recognized by ethics authorities that lawyer-to-lawyer consultations about a lawyer’s professional obligations are fundamentally different than those focusing on a client’s underlying legal issues. As a result, such consultations follow some but not all of the same ethics rules. For example, the disclosure requirements set forth in ABA Model Rule 1.1 that you cite in your argument apply generally to other types of outsourcing arrangements but are inapplicable to consultations about ethics, for which a special exception exists.

    The ethics authorities that you omit from your analysis contradict a number of other points raised in your argument as well. The crux of your argument is that it constitutes the unauthorized practice of law for a consulting lawyer to outsource ethics research to an out-of-state lawyer such as myself because it is not possible to “supervise” the relationship as required by ABA Model Rule 5.5. According to your reasoning, the consulting lawyer cannot “supervise” the relationship because there is no “third party” client involved and thus, the lawyer is effectively supervising himself.

    Yet both state and ABA ethics opinions addressing lawyer-to-lawyer ethics consultations leave little doubt that such consultations are intrinsically related to and inseparable from the consulting lawyer’s representation of his client. In fact, the ABA and state ethics authorities that have addressed the issue head-on have opined that there is a presumption that the consultation is for the mutual benefit of the consulting lawyer and his client, absent special circumstances. Thus, the consulting relationship may be supervised pursuant to Model Rule 5.5 just like any other consultation arising out of the representation of a client.

    You further disregard the widely-accepted principle that allows lawyers to provide services outside the scope of a lawyer-client relationship. In fact, there is considerable authority that specifically allows both licensed and unlicensed lawyers to provide legal research to other lawyers with adequate supervision. Such precedent leads to the inevitable conclusion that a so-called “freelance lawyer” is not obliged to provide legal research to other lawyers in a representational capacity as a licensed lawyer, provide services that rise to the “practice of law,” or enter into a lawyer-client relationship with the consulting lawyer.

    Most importantly, your argument contravenes the underlying purpose of Rule 5.5 and associated unauthorized practice of law regulations, which is to protect the public from overreaching by unqualified lawyers. There is no public policy argument for prohibiting lawyers from assisting other lawyers in the furtherance of their professional responsibility obligations to their clients.

    Your commentary raises far too many multi-dimensional and complex ethics and legal issues to casually address in a blog post. Because of the logistics of posting a lengthy reply here, I’ve responded to your comments in detail, including relevant citations, at the ER for Lawyers blog. I welcome any comments.

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