(Updated May 12, 2022)
This is the fourth post in our series on the “Ethics of Freelancing” series. The previous posts in the series were on: "The Duty of Confidentiality"; "Avoiding Conflicts of Interest"; and "Marking-Up Freelance Lawyers' Fees". This post examines when a lawyer might have an ethical duty or obligation to engage the services of a freelance lawyer.
Rule 3.1-2 of Ontario’s Rule of Professional Conduct (and similarly the Rules of Professional Conduct in other provinces), requires that: “A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer.”
Rule 3.1-1 sets out a list of skills and attributes of a “competent lawyer” including:
A lawyer’s ability to competently handle files may diminish when overextended with excessive legal work – putting the lawyer at risk of breaching the Rules of Professional Conduct. Busy law firms or sole practitioners can mitigate against potential ethical pitfalls by outsourcing to a qualified freelance lawyer if they become overextended with legal work and become unable to meet their client demands in a timely, effective, and cost-effective manner.
See the Ontario Superior Court of Justice decision Aganeh et al. v. Falconer et al., 2022 ONSC 2037, where the Court recognized the availability of freelance lawyers to assist solo and small firms, and arguably indicating that not having capacity to do the work is no longer a valid reason for seeking an adjournment.
In this case the Court denied a solo practitioner's request for an adjournment made the day before a hearing, where the lawyer argued his practice was affected by COVID (and other endeavors such as taking care of a homeless man) and he did not have the capacity to prepare for the hearing, despite agreeing to a timetable and hearing date seven months in advance:
"Although I am not unsympathetic to the challenges of sole practitioners, I note that there are now a wide variety of contracting services available that are designed specifically to provide lawyers for short term assignments to assist sole practitioners or small firms with these challenges. . .
. . . There are serious delays in the civil litigation system. Those delays are only exacerbated if parties do not adhere to court ordered timetables or do not make timely requests to amend those timetables.
Case timetables are court orders like any other and are meant to be adhered to. [The lawyer] had ample time since [seven months prior], to either seek short term help, agree to a new timetable or seek a case conference to amend the timetable."
If proper procedures are followed, outsourcing work to a qualified freelance lawyer is one way to ensure that a hiring lawyer or hiring law firm is meeting its ethical obligations to its clients.
By engaging the services of a freelance lawyer, the hiring lawyer increases efficiency and productivity while also reducing costs. This improves the overall quality of representation that the hiring lawyer provides to their clients!