The Rise of the Freelance Lawyer

More solos and small-firm lawyers are hiring stay-at-home moms and others on a project-by-project basis as the need arises. And the lawyers they hire are trading the benefits - and 60-hour work weeks - of full-time employment for the freedom and flexibility of freelancing.

Chicago solo practitioner Leila Kanani needed to find experienced attorneys to help her handle overflow work when her docket spiked, but she couldn't hire anyone full-time because she couldn't count on staying crazy-busy. So she reached out to attorneys she knew who had left BigLaw to become stay-at-home mothers but wanted to keep one foot in the legal business.

"Whenever I got busy, I didn't know who to turn to for work," says Kanani, who estimates her practice is 60 to 65 percent litigation and the rest transactional, including estate planning, intellectual property, and corporate, family, and environmental law. "They were just sitting at home. They loved it. I set them up with other projects, and it just grew out of that."

In 2013, she founded Intermix Legal Group, a network of freelance attorneys and those who want to hire them for piece work - projects like drafting pleadings and motions, helping with discovery and depositions, and handling trial preparation - without setting up their own full-time practices.

"Solos and small firms can't always hire an attorney whenever they have a lot of work come in," says Kanani. "It's a good resource for them whenever they have overflow work. A full-time associate may be busy for two months, but what happens [when the project ends] after the two months?"

One attorney who has filled that gap is Kendra Morrill, who worked at Jones Day for 13 years and was given the flexibility to work part-time for several years toward the end. "I had kids and realized, to my surprise, that I felt fairly strongly about not going back to work full time," says Morrill. "Jones Day was really great. I remained employed, but they allowed me to work part-time, which lasted about another five or six years."

But as time went on, Morrill found it increasingly difficult to maintain a part-time litigation practice, and she faced the choice of going back full time, either to a firm or as an in-house counsel, or to stop practicing law altogether. "I didn't feel either one was the right choice for me," Morrill says. "I like practicing law, the intellectual challenge, the interactions with clients and co-counsel and opposing counsel." She also knew that working for "one of your quintessential contract attorney houses" wouldn't be the right route because, she said, those are geared more toward early-career lawyers.

Morrill connected with Kanani through a meet-up group called Pro Bono Moms, comprised of women who had left practice but were trying to stay involved in the law. And in October she was handling her first assignment for Intermix, an arbitrator matter for another attorney who's not a litigator.

Morrill's path is an increasingly common one, says Zachary Ziliak, a Chicago lawyer who uses freelance attorneys. "There are so many people who want to be home with kids, who want to work part-time, who have plenty of industry knowledge, and who don't want to work 60-plus hours at a downtown law firm," he says. "Should they be locked out of the industry and lose their skills?"

Ziliak sees it as a natural link. "There are people who want to provide this service outside the traditional model, and there are law firms who want to hire these people," he says. "They need contract attorneys, on a short-term basis, to do document review; or a stable of people available for project work. There are many reasons law firms would want such people…. It's good for clients to have more options available, and more low-price options available."

And that's symbiotic for people like himself, Ziliak says. "It's easy to hang a shingle. You don't need a lot of assets or fixed costs. But you do need people," he says. "There's some variability in the number of people you need and the skill sets you need at any one time, based on the workload."

Pros and cons of freelancers

Among the advantages that Kanani sees to hiring freelancers are that you save on employee costs and overhead like office space, and you can work with a wide variety of freelance attorneys with expertise in different practice areas. "They're available on demand as needed. If an attorney realizes he needs help tomorrow, there's always going to be an attorney available to them," she says. "You can take on larger projects, and you can tell your clients that you have access to these experienced attorneys, so they can give you more work."

Instead of hiring what might be an entry-level full-time attorney, a solo or small firm can hire an attorney with between 5 and 15 years of experience, for $100 to $150 per hour with no benefits, whenever and for however long is necessary. "It's agile staffing. You're staffing your projects without the headache of adding a full-time employee," Kanani says. "They're very, very experienced. They don't need any handholding. You're going to get substantive work back."

The only disadvantage that Kanani sees to hiring freelancers is that they work remotely. "Some attorneys may not like that," she says. "A lot of attorneys are so used to working with an attorney right there in their office. It's not having any face time."

Ziliak sees few problems with attorneys working remotely, aside from ensuring that they stay within their jurisdiction and keep client matters confidential. "You cannot offer advice on law in a certain state, where you have not qualified for that jurisdiction," he says. Otherwise, "Why do you need to be in this ivory tower office downtown, when you can work from home? There are limits to that, if you go into a public network in a coffeeshop, you need to be careful about due diligence and client confidentiality. Aside from that, why can't you work from anywhere?"

BigLaw isn't likely to provide that freedom any time soon, Ziliak predicts. "Law firms give lip service to being open to telecommuting," he says. "But the old guard wants associates down the hall, so they can grab them. Who cares where they're physically located, as long as you can reach them, and they can do the work and access over the Internet the research they need?"

Ziliak acknowledges that working in the same physical space can encourage peer-to-peer learning, and his office space provides room for four attorneys, although he has nine attorneys working with him as either freelancers or part-time employees. "I don't anticipate everybody will be there the same day," he says. "It is less expensive for the client, at the end of the day, if [they don't have to pay] attorneys to sit around and do nothing. Clients don't have to bear that dead-weight cost."

Ziliak, who holds an MBA in addition to a JD, compares the amortization question to a case study he read about in business school regarding the early days of the Swedish furniture maker IKEA. The company started by contacting various furniture factories and offering to pay to use their equipment for whatever time the factories sat idle.

"We will take whatever free time you have," IKEA told them. "If some weeks it's only two days, that's fine. We're not going to pay you a ton, but it's more than just them sitting idle." Ziliak adds: "I view this as a similar thing. There are all kinds of people who have legal skills, legal knowledge, but they don't want to go full-time at a big law firm - or even a small firm where they have to generate business. The end client gets a lower price because you're bringing more people to the game."

Pros and cons of freelancing

Freelancing gives moms who worked in BigLaw a chance at flexible work hours, Kanani says. "It's not because that's who we look for, but that's who's drawn to this model," she says of stay-at-home mothers. "We've bridged the gap between all these attorney moms leaving law firms and not having any work to do, with small firms looking for temporary, experienced help.… They don't want to give up their careers. We have attorneys who have gone to Stanford or the University of Chicago."

Morrill sees work-life balance as the most significant advantage of freelance work. "It gives you flexibility - when you work, where you work, what type of jobs you choose to take," she says. "The idea of control over your own practice, and independence - it is solely up to you where you take your career and how you shape your career."

The potential and often concomitant downsides include the need to be entrepreneurial, which requires networking - a skill that doesn't come naturally to everyone, Morrill says. In addition, freelance attorneys must manage their own time. "When you're solely responsible for when you work, you have to make yourself be disciplined - when you find the time to work, and how much time you devote," she says.

Steady pay and employer-provided benefits are obviously not part of a freelancer's life, Morrill says. "You only make money when you work," she says. "If you need a large source of compensation that's steady and reliable, freelance work might give you heartburn, unless you fill your time regularly enough. The final thing tied to compensation is benefits; if you need benefits, freelance work isn't a viable option."

Other issues, which freelancers probably share with many solo practitioners, include the lack of immediate contacts down the hall with whom to compare notes about a case or document, as well as the need to procure resources like space and equipment.

In deciding whether becoming a freelance attorney is the right path for you, Morrill suggests asking yourself several questions: How entrepreneurial am I? Am I willing to go out and do the legwork and self-promoting to get freelance work? What kind of money do I need to make, and do I need benefits? Can I manage my time effectively? And, does my practice area lend itself to freelancing?

"Some types of law are easier than others," she says. For example, real estate closings can easily be done as piece-work and scheduled around other obligations like child care. Mergers and acquisitions are another matter.

Becoming a freelancer isn't radically different from setting up a solo practice, although it's definitely less of a commitment, Morrill says. For example, freelancers often don't rent their own office space or procure their own malpractice insurance. "Becoming a sole practitioner would be much more of a commitment than what I'm doing right now," she says. "For me, it is a way to do part-time work, on a flexible basis, which most other legal work doesn't allow."

Ethical considerations

Hiring freelancers raises a variety of ethical issues. Peter Apostol, senior litigation counsel at the Attorney Registration and Disciplinary Commission (ARDC), says the first ethical consideration when outsourcing is whether the attorney has the client's permission to do so.

"Also, depending on how you charge for those services, there could be client consent issues," he says. "There are ethics opinions that say if it's a fee-splitting situation, that would be an arrangement that the client has to be privy to, and has to approve in advance. But probably the biggest one of all is that the lawyer who is referring the work out has the duty of competence and diligence; whether or not he does the work himself, he remains responsible for it." [For more on fee splitting, see Jeffrey Blumenthal's article in this issue.]

Another major issue is client confidentiality. While attorneys do not need to get client permission to share confidential information with another lawyer in their firm, the rules are fuzzier when it comes to whether a contract attorney is considered a member of the firm, Apostol says.

"Some of the rules provide a clearer answer than others," he says. "Where we don't have a clear answer - I don't want to say we advocate or recommend - but we encourage taking the safer approach, assuming the rule requires you to do something, just to keep yourself out of trouble. One of the issues in ethics opinions is [whether] a conflict-of-interest [is] imputed to an outsourced contract attorney. It depends on whether a contract attorney is viewed as associated with your law firm in some way. That might not be clear." Bottom line, Apostol adds, "There are a lot more pros to playing it safe than cons."

Ziliak worries that the professional responsibility rules haven't kept pace with the development of legal outsourcing. "They impede the development," he says. "To the extent they do impede such models, they benefit no one. The clients, the law firms, everyone benefits from opening it up and having these outsourcing arrangements. But there are some leftover rules that limit people's ability to do this," Ziliak says.

"Some of the rules were written with different models in mind because there were only those traditional models," he says. "I'm not saying we should all keep secrets from the clients. We should disclose that we're using attorneys from outside the firm. But the client is paying for the firm's guarantee of quality.… It's the firm that bears the risk of outsourcing work to a third party."

The trend toward outsourcing legal work hasn't gone unnoticed by the American Bar Association. For example, ABA Formal Opinion 08-451 ("Lawyer's Obligation When Outsourcing Legal and Nonlegal Support Services"), issued in 2008, discusses the obligations of competence, confidentiality, and client consent. Also, the association's Ethics 20/20 review of the Model Rules of Professional Conduct proposes changes that address outsourcing.

When matters related to freelance attorneys come before the ARDC, among the major questions tend to be whether the client has been harmed, whether there is prejudice to the client, and whether the lawyer has engaged in misconduct, Apostol says. If a mistake of a more technical nature has been made, does the attorney appreciate the mistake, and is he or she taking measures to avoid it in the future?

"If it would be a violation of the ethics rules for an attorney to do something, he can't instruct somebody else to do it for him, to circumvent the rules," he says. "That comes into play a lot when you're delegating to non-lawyers, whether they're outsourced, or whether they're employees of your firm."

How freelancers and firms find each other

Firms like Intermix that broker arrangements between law firms and freelancers are one way for freelancers and firms to connect. Freelancers don't have to deal with the marketing and billing aspects, Kanani says, while firms benefit from the vetting and background checks that they perform on potential contractors.

"They know they're getting the cream of the crop," she says. "If they don't go through us, it's posting an ad on Craigslist, or law.com. It takes a lot of your own time; you get hundreds of postings.… I had a client once tell us they posted something on Craigslist, and it was just a disaster. He got 400 resumes, none of which were remotely qualified."

Ziliak says that brokers like Intermix and temporary agencies are among the potential sources of freelancers. LinkedIn also facilitates arrangements. "People put out that they are freelance attorneys," he says. "I have gotten contacted by people directly, saying, 'I do this, do you want to hire me?'…. Brokers keep track of everyone and can facilitate that handshake, but of course, for a fee."

Freelance attorneys have cold-called or e-mailed Ziliak after finding him on LinkedIn or getting his name from their law school's career services office. "Some of those are people who knew me," he says. "Some of those are people who have left their businesses.… I've been contacted by places like Intermix in both directions," saying either, "Hey, I see you're a lawyer, do you want to do stuff on the side?", or, "Hey, do you want to hire me?"

Aside from the work she has found through Intermix, Morrill says she has used her network of attorney friends, including former law school classmates. "It's a typical networking thing," she says. "I let it be known that I am doing freelance work. My friends who have been in a position to use a lawyer have used me and they have spread the word among their friends."

Through her involvement in community boards and in her children's schools, Morrill has gotten to know a cross-section of small business owners, who typically can't afford large or even medium-sized law firms.

"I can be more flexible in what I charge," she says. "That's a great source of work. The more you put yourself out there, the better your chances of getting work. With the economic downturn, it's made lawyers and businesses in general a little more flexible in who they're willing to hire. If it comes down to economy, and cost, a freelance lawyer is a great option."

Ed Finkel is an Evanston-based freelance writer.