This is the second post in our series on the “Ethics of Freelance Lawyering”. This post examines best practices to avoid conflicts of interest while freelancing or when hiring a freelance lawyer. (Our first post was on Confidentiality)

What should Freelance Lawyers do to Avoid Conflicts of Interest?
Avoiding conflicts of interest is an important duty for all lawyers, especially freelance lawyers who by nature are working for a number of lawyers or law firms with a number of end-clients.

Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct outlines a lawyer’s “Duty to Avoid Conflicts of Interest”:

3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.

Conflict of interest is defined under Rules 1.1-1:

“Conflict of Interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.

Each province has a similarly worded rule, as does the Federation of Law Societies of Canada’s Model Code of Professional Conduct.

All our freelance lawyers who take on legal work are called to the Bar in at least one province in Canada and licensed with the law society or regulator of that province. This means that they all must abide by any applicable Rules or Code of Professional Conduct.

To abide by the Rules, a freelance lawyer cannot work on projects for different firms where the end-clients could be deemed to be adverse in interest to each other. Likewise, a freelance lawyer cannot assist one firm in a matter substantially related to (or the same as) a previous matter formerly handled for a different firm where the former and current client have materially adverse interest to each other.

The Law Society of Ontario provides best practices when hiring a “Contract Lawyer (or Paralegal)” to act as a locum for lawyers who take extended leaves from their solo practice.[1] While this is a different situation than freelancing (locums or contract lawyers “step into the shoes” of the hiring lawyer and work directly for and represent the end-client; freelance lawyers work remotely, only under the supervision of the outsourcing lawyer, and with likely no end-client contact), the LSO provides the following indirect guidance:

The same rules apply to the Contract Lawyer or Paralegal and to the contracting firm/lawyer/paralegal. The Contract Lawyer or Paralegal must set up a system to check for conflicts prior to working on the contracting firm/lawyer/paralegal's files. A Contract Lawyer or Paralegal needs to keep a list of clients to whom he or she has provided legal services during all Contract Lawyer or Paralegal projects. The Contract Lawyer or Paralegal must ensure that no conflict exists between his or her present clients and those to whom the Contract Lawyer or Paralegal provided legal services during all past Contract Lawyer or Paralegal arrangements or in his or her separate practice, if one exists.[2]

Therefore, to avoid the potential for conflicts, freelance lawyers maintain a list of current and former lawyer/law firm clients and the name of the end-clients those firms are assisting. Before commencing any project, a freelance lawyer will complete a “conflicts check”, just like any other lawyer taking on work.

What can Outsourcing Lawyers do to Avoid Potential Conflicts When They Hire Freelance Lawyers?
In the United States, the American Bar Association has provided helpful assistance for best practices for outsourcing legal work to freelance lawyers, including information on avoiding conflicts of interest. According to “ABA Formal Opinion 88-356 – Temporary Lawyers”, the analysis of whether conflicts are imputed as between a freelance lawyer and a hiring firm turns on whether the freelance lawyer is deemed to be “associated” with the hiring firm. The most important factor to determine “association” is whether the freelance lawyer has access to information related to the representation of firm clients other than the client on whose matters the freelance lawyer is working.
 
Courts in Canada have also confirmed the presumption of imputed knowledge between partners and associates at the same firm[3] and where lawyers work in “association” but hold themselves out to the public as a law firm (without taking the required steps to inform the public that the lawyers have separate practices, take proactive steps to avoid conflicts, etc.).[4] Neither of these situations apply where the freelance lawyer is brought on only to work on one particular aspect of a file, under the supervision of the lawyer, works remotely, does not have access to the other files at the firm, does not appear on the firm’s website or letterhead, etc.

Best Practices
Best practices dictate that freelance lawyers should only have access to the file or files they are assisting with or only the documents necessary for completion of the agreed upon projects. The freelance lawyer should not have access to any other files belonging to the outsourcing law firm. By limiting access to only the documents needed for the task at hand, the freelance lawyer is denied access to files that could create an association or potential for conflicts. Fortunately, technology is available for file sharing or remote access to only specific files or documents.

Freelance lawyers should also have a freelance lawyer agreement in place outlining the specific duration of the project and scope of work and clarifying that the freelance lawyer is an independent contractor and not practicing in association with the firm.

What about Flex Legal? Does it check for conflicts?
Flex Legal is not a law firm and is not retained on any of the projects, nor is anyone who manages Flex. While Flex works closely with lawyers or law firms who hire our freelance lawyers to ensure quality control and satisfaction with the work produced, Flex does not have access to any of the confidential documents, information, or work products. This eliminates the potential for conflicts of interest to arise.

Hope this helps clarify any questions you may have about conflicts of interest and freelance lawyering. If not, please feel free to contact us!
 
[1] See “Tips for Hiring a Contract Lawyer”, Law Society of Ontario website: https://lso.ca/getdoc/ab5868f6-8b2b-424f-b4d0-42d7063b004b/tips-for-hiring-a-contract-lawyer-or-paralegal
[2] See https://lso.ca/getdoc/d528d5ae-10c1-4f2c-8650-5b32c8c91417/ethical-issues-and-practice-management
[3] MacDonald Estate v. Martin, [1990] 3 SCR at 1235.
[4] Jajj v 100337 Canada Ltd 2013 ONSC 5743, Performance Diversified Fund v Flation GP Group, 2016 ONSC 1133 (DIv Ct).

Note: This article provides an overview only for informational purposes and does not constitute legal advice. 

Photo by Andrew Pons on Unsplash

Ever wonder what it is like to be a freelance lawyer (a lawyer who assists other lawyers, law firms, and in-house legal departments with their overflow legal work)? Our Flex lawyer Amy Grubb has written this informative blog post to give you a glimpse into a day in the life of a freelance lawyer: 
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As with most legal positions, no day as a freelance lawyer is ever quite the same. Here is a snapshot of a random day in my life as a part-time freelance lawyer.
 
5:30 am: I am not one of those people who presses the snooze button for another 45 minutes of shut eye. My alarm goes off and I am up. I figure part of this is because I never know when one of my kids is going to wake up so I might as well get going before chaos breaks out. I get dressed, check my emails and finalize and send out a freelance agreement to a new client. Believe it or not, there is no coffee for me. Ever. It’s just not my thing.
 
6:45 am: My little people are now rolling out of bed. This means it’s time to get breakfast ready (omelettes), get the kids dressed, make lunches and help my son fill loot bags for his upcoming birthday party.
 
8:40 am: I walk the kids to school. This is one of my favourite times of the day (especially now that the weather is warm). On this particular walk we discuss fossils and how they are made.
 
9:15 am: Gym. This is my “me time”. No work, no kids, no distractions. I then head home to shower and get to work (I have a virtual office and tend to work primarily from home).
 
10:30 am: I tackle a new file today: drafting a GDPR compliant privacy policy as well as researching best practices from a GDPR perspective for a company that processes a large amount of data. During this time, I put my phone and all other temptations and distractions away. I put my head down and focus on the task at hand.
 
Noon: I pick up my youngest from preschool. Now this is my favourite part of my day. She lights up when she sees me and gives me the biggest hug. Ahhhhhhhh, lucky me. We walk back home where I give her a snack and then she is off to bed for her afternoon nap. I then prepare lunch (shrimp and leftover veggie salad) and sit down with my husband (who also works from home) for a quick lunch.
 
1:00 pm: I continue on with the GDPR research outlined above. I also take care of some administrative tasks: confirm details of a conference call taking place later today, RSVP to a breakfast networking event and confirm client instructions on a file.
 
3:00 pm: My daughter is up and ready to go. We hang out for a bit before heading out to pick up the big kids from school.
 
3:20 pm: School run.
 
4:10 pm: Hang out with the kids. Today we are reading books and talking about what they did at school that day. Apparently my son was involved in an “epic” game of dodgeball. He tells me about every play in detail.
 
4:30 pm: My husband takes over with the kids while I jump on a conference call. It is a group call with a law firm that is planning to offer legal services to its clients through independent contractors, such as myself. I really think it is a great time to be an entrepreneurial minded lawyer. There is so much possibility and freedom to work in a non-traditional way than ever before.
 
5:45 pm: After the call, dinner is literally being put on the table. Yay for me! Hubby has made tacos with guacamole. Our dinner conversation with the kids revolves around birthday party plans, different types of cows and whether brown cows actually produce chocolate milk (some of us are still undecided on that one) as well as a vote on what food you like best among ice cream, pizza or smoothies (that’s a tough one for me but I think depending on where it is from I would have to go with pizza. It would have to be pizza from Windsor because it is the best).
 
6:15 pm: Tidy up the path of destruction that has been left behind by the kids. One of my kids was stuck with laundry for a chore this week so I showed him how to fold the clothes and put them away.  I am pretty sure he pretended that it was too difficult so I ended up doing most of it. In the meantime, my husband helps the other with his homework and the youngest with making sure she didn’t stick her fingers in any electrical outlets.
 
7:00 pm: Bedtime for the kids.
 
7:15 pm: Grocery store run.
 
8:00 pm: One of my clients has reached out with a merchant contract that needs to be reviewed from a Canadian perspective. I send her a quote for my services and continue drafting the privacy policy I was working on earlier in the day.
 
9:30 pm: I can’t lie. I record the Bachelorette weekly and am a die hard fan. No shame. Time to sit back and enjoy!
 
11:00 pm: Off to get some shut eye (with visions of fossils, brown cows and loot bags dancing in my head).
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Thanks Amy for this informative (and entertaining) post! This is a great example of how freelance lawyers can provide quality legal work and excellent client service to sole practitioner, law firm, and in-house legal department clients, while still being engaged in other aspects of life. A number of our freelance lawyers do not have children, but have other responsibilities that require a flexible legal practice. Freelancing gives them this flexibility.

We also provide flexibility to you - our lawyer and law firm clients. We eliminate the need for you to hire a full-time associate or counsel (only hire us when you need us), save on overhead (we work remotely), and can give you more flexibility in your legal practice (off-load the work you don't want to do and keep the work you do!) If you are looking for a freelance lawyer to assist with your overflow legal work, please do not hesitate to reach out and find out how we can help you. 

Many lawyers are aware that freelance lawyers can assist other lawyers and law firms with legal research, drafting, due diligence and other “behind the scenes” legal work. However, that is not all we do. Freelance lawyers can also assist with in-person court appearances, discoveries, cross-examinations, mediations, etc.

Often sole practitioners, or lawyers at smaller firms, do not have the luxury of asking the lawyer down the hall to step in for them should an emergency arise, or when they are double-booked. Flex Lawyers can be the lawyers you turn to, to act as your agent. Below are just some of the examples of how our Flex Lawyers have assisted other lawyers and law firms in the past:

• attended all-day discoveries where the client was a minor party and the lawyer wanted to keep costs down;
• assisted as second chair on an appeal where the sole practitioner did not represent the client at the trial and needed assistance getting up to speed quickly;
• attended case conferences;
• argued adjournment motions;
• argued motions for substituted service;
• appeared on consent matters;
• appearance to vary an order; etc.
• We also have experienced trial lawyers who are ready to assist!

Litigators love to be in court, we get it, we are litigators too. But sometimes it does not make sense for some lawyers to sit in court all day for a minor appearance. The costs are just too high and the time commitment can be significant. Hiring a Flex Lawyer to step in for you frees up your valuable time and you can pass those cost-savings on to you client.
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Contact us to learn more about our court appearance services in Toronto. 

While more and more law firms and in-house legal departments are using freelance lawyers for their overflow work, we are still often asked “What is a freelance lawyer” and “Why would I use one?” To help answer these questions, Flex Lawyer Heather Cross has written this helpful blog post “Seven Reasons to Hire a Freelance Lawyer”: 

1.  You need an associate, but not all of the time.
A freelance lawyer can act as your associate down the virtual hallway.  Freelance lawyers can be a sounding board, perform legal research, prepare documents or edit your documents, but you don’t have to provide them with an office, a regular salary or steady work.  They are just there when you need them.[1]

2.  You are not a bookworm (but we are).
You didn’t get into law to spend hours with your nose in a book or glued to a screen.  You want to be in court, meeting clients and being part of the community.  However, high-quality legal research and writing are an indispensable part of a successful legal practice. 

Believe it or not, there are lawyers out there (like us) who actually enjoy scouring Westlaw for that gem of a case or spending a quiet afternoon typing out a factum.  Hire them to help you out and you will be free to spend as much time out and about as you’d like.  

3.  You don’t know everything.
No one does.  The legal world is a complex one, full of niche specialties.  There is no way a lawyer can maintain a good understanding of every area of the law.  When you run into an area in which you lack experience, hiring a freelance lawyer with the requisite expertise can make you look like a pro.[2]

 4.  You want a competitive advantage.
You are juggling a million things, and chances are, whoever is acting for the other side is too.  But you have an ace up your sleeve—a freelance lawyer who has time and energy to devote solely to developing a winning case for you and your client.

 5.  You want a life.
Looming deadlines, demanding clients, family obligations, and that pesky human need for food, exercise and sleep make running a legal practice challenging.  Hiring a freelance lawyer can take some of the pressure off.  

Don’t have time to prepare those application materials because you are in court all next week on another matter?  No problem, hire a freelance lawyer to take care of it and you can focus on the case at hand. 

Who knows?  If you build a good relationship with a lawyer you trust, you could even go on vacation, knowing your work is in good hands while you are away.  Mexico, anyone?

6.  You want to grow your business.
 A freelance lawyer can help you grow your business by:

• taking care of many of the “behind the scenes” activities of your legal practice, making you more available for those things that attract business such as spending time with clients, serving on boards or giving lectures;
• assisting you in preparing articles for publication or papers for presentation at conferences;[3] or
• taking care of your content marketing by creating and updating your website content, producing high-quality blog entries that showcase your legal knowledge and successes and taking care of your social media content.

7.  Your clients can’t afford you.
If you have clients who struggle to cover your retainer, hiring a freelance lawyer can make your services more affordable and thus more attractive.  Because freelance lawyers have lower overhead, they tend to charge less than the average lawyer.  If you hire a freelance lawyer to take care of portions of your clients’ work and pass the savings on to your clients, they will find the process much more reasonable and be happy to pay your hourly rate to conduct the big trial or negotiation.  Offering an affordable legal solution can help you attract and keep clients who would otherwise be unable to afford your services. 

If you are interested in finding out more about freelance lawyers and their work, feel free to contact us at info@flexlegalnetwork.com or fill out our request for assistance form.
 
 
[1] If you are sole practitioner or in a small firm, having another person “on-call” can also makes potential clients feel more confident that you will be able to handle their matter.
 
[2] For example, if you need assistance with a criminal appeal, I am a great resource.  I have worked on criminal appeals to the Ontario Court of Appeal and the Supreme Court of Canada for the past five years.
 
[3] Or, what the heck, just hire them to write the whole article or paper.