Ethical Obligations and Risks of Engaging a Temporary Attorney

It is not uncommon for practitioners and law firms to employ the services of temporary (or contract) attorneys as the need may arise in contemporary practice. Employers often turn to temporary lawyers to address a variety of needs including workload variations, special projects, matters requiring a unique or particular skillset, and general assistance with such tasks as document review and the drafting of legal memoranda, among other things. As one federal court explained, "economics is the principal reason for emergence of lawyer temping because it permits a firm to service client needs during particularly busy periods by engaging an experienced attorney, without incurring the expense of hiring a permanent employee." See, Carlson v. Xerox, 596 F. Supp. 2d 400, 409 (D. Conn. 2009) (internal citations omitted). This article discusses the ethical obligations and associated risks that flow from engaging the services of a temporary attorney, including areas such as billing for services and adequate disclosure to clients.

Temporary Lawyers In Context

A generally accepted definition of the term "temporary lawyer" includes an attorney hired "to work on a single matter or a number of different matters, depending upon the firm's staffing needs and whether the temporary attorney has special expertise not otherwise available to the firm." See, Newby v. Enron, 586 F.Supp. 2d 732, 783 n 64 (S.D. Tex. 2008) (Observing that the hiring of a contract or temporary attorney is a common practice in law firms today); see also Takeda Chemical Industries v. Mylan Laboratories, 2007 U.S. Dist. LEXIS 19614 (S.D.N.Y. Mar. 21, 2007) ("In complex litigation, contract attorneys are routinely used by well-established law firms who supervise their work."). Temporary attorneys are typically employed for a "limited period or purpose" and do not include someone who "is a part time employee of a firm or one who is employed full time but without contemplation of permanent employment, who works only for the employing firm." See, Colo. Formal Ethics Op. 105 (May 22, 1999).

Billing Considerations for Temporary Lawyers' Services

In order to bill a client for the services of a temporary lawyer, a law firm may either bill for the work as "legal services" akin to that of a partner or associate or an expense or disbursement. With respect to the former option, the firm is permitted to realize a profit for the temporary lawyer's work, insofar as it can add "a surcharge to the costs" provided the "total charge represents a reasonable fee for services provided to the client." See, ABA Comm. on Ethics and Prof'l Resp., Formal Op. 00-420 (Nov. 29, 2000). As to the latter, when such services are billed as an expense or disbursement, the "client may be charged only the cost directly associated with the services, including expenses incurred by the billing lawyer to obtain and provide the benefit of the contract lawyer's services." In order to add a surcharge to the costs under this option, the client must give her consent.