Freelance LawyersThe industry's best kept secret.

Christopher Kozlowski

About Me

Co-founder and partner of Streamline Litigation,

which I started while I was still in law school at

Villanova University School of Law.

Interned for the Honorable Paul P. Panepinto

Complex civil litigation cases including personal

injury and medical malpractice.

Spent legal career working as a general

practitioner overseeing cases ranging from

commercial litigation, real estate, and

foreclosure defense.

Overview

Freelance Lawyer Industry

Benefits

Outsourcing Discovery

Benefits and Issues

India’s Outsource Industry

Issues

Best Practices

Ethics

Issues and Solutions

ABA Opinion

Confidentiality, Client Disclosures, Conflict of Interest, and Attorney Client Privilege

Legal Outsourcing: involves subcontracting legal work traditionally done by

in-house counsel or law firms to third-party service providers.

These services are typically concentrated on the processing of discovery but have

now expanded to virtually every service provided by law firms.

Freelancer: a person who is self-employed and is not necessarily committed

to a particular employer long-term.

Freelance Lawyer Industry – Freelancer Benefits

Work Load Control

Autonomy

Work life balance

Tax Benefits

New Connections and Diversification

Income Control

National Exposure

Freelance Lawyer Industry – Hiring Attorney Benefits

Benefit: Cost

Compare the national average hourly rate for an attorney or paralegal with that of a

freelance attorney.

National Average:

Associate Attorney: $292/hr*

Paralegal: 118/hr**

Freelance Rate:

Anywhere from $35-$120/hr

*NALA, The Association of Legal Assistants and Paralegals, 2013 National Utilization and

Compensation Survey Report, Section 3 Billing Rates. (2013).

**Laffey Matrix, Civil Division of the United States Attorney's Office for the District of Columbia.

(2014).

Freelance Lawyer Industry – Hiring Attorney Benefits

Benefit: Time Allocation

When the hiring attorney outsources areas outside their concentration, it greatly enhances the allocation of time to areas in which you are most proficient while the client receives the benefit of work as good or better than you could have delivered.

By outsourcing work you may not be proficient in to another attorney, you are able to accept other cases that may prove more profitable.

In addition, as noted in ABA Opinion 00-420, an attorney is able to add a surcharge to the fee paid to the freelance lawyer when billing the client for legal services, as long as the total sum charged is reasonable.

Attorneys often have scheduling conflicts and the use of a freelance attorney at such times can be a solution to the problem without having to consider adding the cost of an associate to the firm.

Freelance Lawyer Industry – Hiring Attorney Benefits

Benefit: Work Quality

ABA rules allow an attorney to take on a client even though the attorney

does not practice that area of law, as long as the attorney gains

competence.

Utilizing a freelance attorney allows the hiring attorney to use a work

product that is superior to their own.

Where to Find Freelance Attorneys

There is a choice of on shore and off shore legal outsourcing. U.S. based

freelance firms vary in the delivery and fee structure.

Some examples would be (e.g. Montage, Freelance Law, Streamline Litigation)

Where to Find Discovery Freelancers

Any trusted site that assists with meeting freelancers (e.g. eLance)

Outsourcing E-Discovery

Traditionally done by large companies who specialize in document review

(e.g. Huron, Pangea3) or by law firms that handle it in-house.

Alternative: Utilizing freelance attorneys to complete discovery tasks

Limited quantity of ESI Discovery processing can also be processed and reviewed

by qualified and experience freelance document review attorneys.

Regardless of the firm or attorney chosen to process and/or provide document

review services to identify relevancy, privilege, and issue spotting, the Electronic

Discovery Resource Model should always be employed and utilized.

Electronic Discovery Resource Model

www.americanbar.org/publications

Outsourcing E-Discovery Processing and Review

Understanding the EDRM Model

Identification: Locating potential sources of ESI & determining its scope, breadth & depth. Custodian interviews and identifying all the relevant locations of ESI.

Preservation: Ensuring that ESI is protected against inappropriate alteration or destruction. Drafting an effective litigation hold and crafting follow up protocols to ensure compliance.

Collection: Gathering ESI for further use in the e-discovery process (processing, review, etc.).

Processing: Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis. FRCP Rule 26 governs this issue.

Review: Evaluating ESI for relevance & privilege. Advances in technology and acceptance by U.S. District Courts of predictive coding technology and artificial intelligence have cut down on attorney review time previously needed.

Analysis: Evaluating ESI for content & context, including key patterns, topics, people & discussion.

Production: Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms. FRCP 16 requires the parties meet and confer regarding discovery production as to the form or forms in which the ESI should be produced. If the parties are unable to reach agreement, then responding party must produce ESI in either the format it is ordinarily maintained “native” or in a reasonable usable form.

Presentation: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.

India’s Outsource Industry

Approximately 100 legal outsourcing firms that employ approximately 600 to 800 Indian attorneys.

Indian services generate $80 million a year, and expects that the figures will reach $4 billion by 2015.

Manhattan Work at Mumbai Prices: Inside India’s Hottest Legal Outsourcing Firm, Arin Greenwood

The top 200 [U.S.-based] law firms spend more than $20 billion a year for back-office work.

Tommy Fernandez, Low Costs Make the Case for Outsourcing Legal Work, CR.AzNs N.Y. Bus.,Sept. 13, 2004, at

21.

Approximately 3.3 millions job and $136 billion in wages will be allocated to countries such as India by 2015.

*Forrester Research

India’s Outsource Industry

Tasks that have been traditionally outsourced:

Phone answering services, transcription, accounting, or customer service.

Legal task that are now outsourced are:

Document review

Document drafting.

India’s Outsource Industry

Problem: Generally, the individual who is performing the legal work in India

does not have to be an attorney.

As legalsupportglobal.com puts it, “the legal process outsourcing work

performed in India by Legal Support Global is supervised by Harvard Law

School trained attorneys who understand the American legal system.”

Many times Indian companies hire an attorney from the US to supervise their

staff of local Indian attorneys.

India’s Outsource Industry

Problem: Security

Considerations:

Secure Servers

Do small to mid-size outsource companies have safeguards in place to prevent a leak of confidential information?

Indian Law

“The International Intellectual Property Alliance's criticizes Indian enforcement as lax and uneven. According to the IIPA, India lacks an effective mechanism for “national enforcement coordination” and instead relies on individual states for law enforcement. This policy has resulted in fragmentation and cross-jurisdictional difficulties. Even if crimes are prosecuted, Indian courts face massive backlogs.”

Example: The Bank of New York Mellon fell victim in 2008 to a data breach involving the theft of tapes containing personal information of around 12 million customers, while under the responsibility of an outsourcer.

Outsourcing to Freelancers – Best Practices

Suggestions by the ABA

Prepare a detailed Request for Proposal (RFP) prior to contracting any

provider.

“First-timers” implementation process

Security and privacy measures

Financial stability

Technical capabilities and infrastructure

Procedures in place to keep apprised of technological developments and any related

case law updates

Customer references

Personnel qualifications (i.e. , educational background and on-the-job training)

Outsourcing to Freelancers– Best Practices

Management qualifications and resumes;

Staffing policy and procedures (i.e. , who will staff the project, whether the team will be dedicated to specific projects);

Quality control measures and standards (i.e. what the service level measures are for each specific project);

Employee training procedures and policies;

Transparency of the various protocols and Procedures;

Costs; and,

Information about the facilities and the location of where the work will be conducted (including, if possible, site visits, whether the site is in a special economic zone and whether backup locations are ready and available).

Outsourcing E-Discovery - Responsibilities of the

Hiring Attorney

Discovery Spoliation and the importance of legal hold effectiveness

Vetting the document review team

Ensure ESI is secured and backed up. Secure cloud based services are typically

recommended.

Utilizing the appropriate software tools based on the scope and nature of the

e-discovery project

Outsourcing E-Discovery.

Responsibilities of the Hiring Attorney

Pricing model comparison

Using on shore (U.S. based) versus off shore service providers

The pro’s and cons

Defining the scope of the review process.

Issue spotting, privilege log, etc.

Develop and enforce strict protocol for review process

Ethics

Ethics rules set forth by the ABA generally do not apply to freelance attorneys performing document preparation or discovery tasks.

The American Bar Association issued Formal Opinion 08-451 in 2008 regarding lawyer's obligations when using legal outsourcing services.

Along with an attorney having to provide competent services, he or she is responsible for the competence of all attorneys working under him or her.

There have been several state and local bar association opinions on the topic, as well as numerous law review and bar journal articles.

The opinions overwhelmingly conclude that an attorney may ethically outsource legal work; however, the opinions emphasize the need for an attorney to address ethical obligations including, but not limited to: (1) adequate supervision of all work that can be deemed the practice of law; (2) avoidance of conflicts of interest; and (3) preservation of client confidences and sensitive information. ABA

Danger: Unauthorized Practice of Law (UPL)

Ethics – Adequate Supervision

Rule: Attorneys are required to adequately supervise the work of

subordinate attorneys and non-attorneys.

Context: a supervising attorney must oversee anything that can be deemed

the practice of law to ensure that competent work has been performed.

Difficulty: Physical Separation between the freelance attorney and

supervising attorney.

How to Comply: Establish practices and procedures; Communicate regularly

Ethics – Conflicts of Interest

Rule: An attorney cannot represent a party if a conflict of interest exists

between the prospective client and past or current clients.

Context: Potential conflicts can arise through the use of outside service

providers and the contract attorneys that work for the outsourcing vendor.

How to Comply: You should investigate.

Note: There are no ABA requirements that a supervising attorney check conflicts,

especially if there is no confidential information disclosed.

Ethics – Confidentiality

Rule: An attorney must make reasonable efforts to prevent the inadvertent

or unauthorized disclosure of, or unauthorized access to, information

relating to the representation of a client.

Context: A hiring attorney must ensure that all client confidences and

secrets are adequately protected.

How to Comply: Do not reveal confidential information without client’s

consent.

Freelance/outsource attorney should sign a confidentiality agreement.

Thank You

Should you have any further questions or comments please feel free to

email me at c.kozlowski@streamlinelitigation.com.

This webinar was brought to you be the Association of Certified E-Discovery

Specialists and sponsored by Streamline Litigation.

Streamline Litigation provides litigation support services to law firms,

insurance companies, and in-house counsel. Learn more about our services

at www.streamlinelitigation.com.

Cites

Legal Outsourcing: Farming Out Work Without Reaping Ethical Problems, Gifford, C.

(2013).

Attorney Who Billed for 29-Hour Day Did the Work, His Lawyer Says, Neil, M. (2013).

Legal Process Outsourcing: A Guide to Important Considerations, Risk Mitigations

and Achieving Success, Prasad, A. & Mago, A. (2008).

Preservation Guide, edrm.net (2010).

Outsourcing Series, Part 1: When Does Outsourcing Make Sense?, Bordin, K. (2010).

The Cost of In-House Law Firm Staff vs. Outsourcing, Chern, K. (2010).