Of Counsel and Freelance Lawyers: Montage’s Ethics Article Published in ABA’s Law Practice Today

The ABA’s “Law Practice Today” July 2017 issue features “Stay Ethical While Growing Your Firm” by Montage Legal Group co-founders Laurie Rowen and Erin Giglia.  The article discusses how firms and freelance lawyers can manage their relationships based on applicable ethics rules, and also discusses the Of Counsel title.

Montage Legal Group’s founders are frequent commentators on freelance attorney and contract attorney ethics.  In May 2017, Laurie and Erin spoke for the OCBA on “Ethics of Growing Your Practice: Use of Contract Attorneys, Referrals and Associations.” In June 2017, Erin was quoted in, “Where Should Firms Draw Line on Contract Lawyers,” by Miriam Rozen, The American Lawyer (June 9, 2017), discussing freelance attorney rates and fees.  Various publications frequently reference their article, “Ethics of Contract Lawyering” (Part 1 and Part 2), Law.com-The Recorder (April, 2013).

If you have questions regarding the ethics of freelance lawyering, please contact Erin and Laurie at info@montagelegal.com.  An excerpt from the article is below.

Of Counsel, Freelance and Other Lawyer Relationships: Stay Ethical While Growing Your Firm (Law Practice Today, July 14th, 2017)

Most lawyers start law firms with the same goal in mind – to earn a living practicing law.  With luck, small firm lawyers will generate enough work to learn that a fine line separates being too busy and not busy enough.   Once a firm has crossed into “too busy,” it has several options for immediate help: (1) bring in an outside lawyer to become “of counsel” to the firm; (2) hire a contract/freelance attorney periodically on an hourly or flat fee basis; or (3) refer matters to lawyers outside the firm, possibly in exchange for a referral fee.  Each of these arrangements is permissible, but different ethical rules apply to each situation.  In this article, we discuss applicable ABA and California ethical rules, pitfalls to avoid, and best practices.

  1. Of Counsel Relationships

Law firms often form relationships with outside attorneys to assist with legal projects when a firm is too busy or needs additional expertise. Outside attorneys may help with single projects or multiple matters, and may develop a continuous relationship with a firm.  Firms often select the title “of counsel” to define a relationship with an outside attorney in an effort to appease their clients or make their firm appear to have additional resources, but firms should be aware of the requirements and ethical implications of an “of counsel” title before making the designation. A firm should not call a temporary or contract attorney “of counsel” unless the relationship meets the applicable definition.

  1. Definition of “Of Counsel”

American Bar Association Formal Opinion 90-357 defines the term “of counsel” as a “close, personal, continuous, and regular relationship” between the law firm and an “of counsel” lawyer, and states that it is a relationship which is neither that of a partner nor an associate of a firm.  The ABA is clear that the relationship cannot involve “only occasional collaborative efforts among otherwise unrelated lawyers or firms.”  The California Supreme Court adopted the ABA’s definition, and further states that “the essence of the relationship between a firm and an attorney ‘of counsel’ to the firm is the closeness of the ‘counsel’ they share on client matters.” People ex rel. Department of Corrections v. Speedee Oil Change Systems, Inc., 20 Cal.4th 1135 (1999).

The ABA and California rules allow an attorney to hold one or more “of counsel” designations while maintaining a separate source of work, so long as the firms involved appropriately monitor and clear conflicts and adhere to all applicable ethical rules.  Specifically, State Bar Of California Standing Committee On Professional Responsibility And Conduct Formal Opinion (COPRAC) 1993-129 states that “the number of ‘of counsel” relationships in which a member or law firm may serve is limited not by any strict numerical standard … in theory, law firm ‘O’ may serve as ‘of counsel’ to law firms ‘A’, ‘B’ and ‘C.’”

The ABA and California rules are clear that holding multiple “of counsel” positions simultaneously is permissible.  As discussed below, however, the number of firms with which a lawyer can have an “of counsel” relationship may be limited from a practical standpoint due to conflict of interest rules.

  1. Of Counsel Lawyers Have Automatic, De Facto, Imputed Conflicts of Interest

Any attorney or law firm contemplating an “of counsel” relationship also must understand the conflict-of-interest rules that an “of counsel” designation creates in their respective state.  California Rule of Professional Conduct 3-310 governs attorney conflicts regardless of whether a lawyer is a partner, associate, of counsel or a temporary contract attorney, and prohibits an attorney from accepting or continuing client representation if an actual or potential conflict affects the member’s representation.

Pursuant to ABA rules and California rules, law firm conflicts are automatically deemed imputed to an “of counsel” lawyer, and vice versa.   Under this single de facto analysis, current and former clients of every firm lawyer and the “of counsel” lawyer become relevant to all the lawyers’ respective ethical obligations and potential disqualifications.  See Speedee Oil, 20 Cal.4th 1135 (1999) (stating that for purposes of conflicts of interest and disqualification, an “of counsel” attorney and the principal firm must be considered “a single, de facto firm” so that if one of them is precluded from a representation because of a conflict of interest, the other is presumptively precluded from the representation as well.)  See also COPRAC 1993-129.

An “of counsel” title can exponentially increase conflicts, and can preclude “of counsel” attorneys from representing clients adverse to the firm in their outside practices without providing written disclosure to and/or receiving informed written consent from clients pursuant to CRPC 3-310.  A lawyer who purports to be “of counsel” to multiple law firms at the same time has imputed conflicts with each and every firm, even if that lawyer is working on only one matter.  Firms can be conflicted out of matters simply by designating a contract lawyer as “of counsel.”

While ethically there is no limit on the number “of counsel” positions a lawyer may hold, from a practical standpoint, all the firms in effect become one firm for the purposes of conflicts of interest.  For this reason, unless the title “of counsel” is necessary because the lawyer is truly a member of the law firm, the best practice is to avoid using the title.  Without an “of counsel” title, firms can take precautions to limit their temporary lawyer’s access to confidential client information, and can prevent an outside attorney from being “deemed associated” to the firm for conflict purposes.  See ABA Formal Opinion No. 88-356 (stating that firm conflicts are imputed to the temporary attorney only if the temporary attorney is “deemed associated” with the firm such that knowledge of and access to the firm’s clients’ confidential information is presumed.)

As long as an attorney complies with the “of counsel” relationship requirements, the association with an established law firm can prove beneficial. But such benefits do not come freely, and before accepting the “of counsel” designation, attorneys must carefully consider the added burden of disclosure and consent requirements, and potential conflict disqualifications.

  1. Freelance Attorney Relationships

Firms often rely on freelance lawyers, also known as temporary or contract lawyers, to assist with legal projects during periods of increased work such as trial preparation, to add specific expertise, to creatively lower fees to firm clients, or to cover for vacation and maternity leave.  While many ethical rules apply the law firm/freelance lawyer relationship, the most commonly misunderstood rules involve (1) Aiding and Abetting the Unauthorized Practice of Law; (2) Fees to Client/Upcharging; and (3) the Duty to Disclose.

  1. Aiding And Abetting The Unauthorized Practice Of Law

No person may practice law unless the person is an active member of the State Bar of California.  See Cal. Bus. Prof. Code § 6125; Birbower, Montalbano, Condon & Frank, PC v. Superior Court, 17 Cal.4th 119, 128 (1998).  Rule of Professional Conduct 1-300(A) states, “A member shall not aid any person or entity in the unauthorized practice of law.”

While the California State Bar Act does not define the “practice of law,” courts have discussed its meaning, which is not as stringent a requirement as it initially appears.  “The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state or created a continuing relationship with the California client that included legal duties and obligations.” California ethical rules permit law firms to contract with out-of-state attorneys to handle many legal projects, including drafting legal pleadings, research and writing, as long as the law firm remains ultimately responsible for the final work product.  Birbower, (1998) 17 Cal.4th 119, 129.

Winterrowd v. Am. Gen’l Annuity Ins., 556 F.3d 815 (9th Cir. 2009) is instructive on this issue.  In Winterrowd, a lawyer barred in Oregon but not in California assisted a California lawyer litigating a case before the United States District Court for the Central District of California.  The Oregon attorney did not “appear” before the court, did not sign any pleadings, and had little contact with opposing counsel or clients, and the California attorney supervised the Oregon attorney. The court held that there was no ethical violation under these circumstances. See Orange County Bar Association Formal Opinion 2014-1 (concluding that “the mere act of Out-of-State Lawyer’s ghostwriting a document for California Counsel of Record is not likely to constitute the unauthorized practice of law in California.”); San Diego County Bar Association Ethics Opinion 2007-1 (“the attorney does not aid in the unauthorized practice of law where he retains supervisory control over and responsibility for those tasks constituting the practice of law.”)

Simply engaging an out-of-state contract lawyer to ghost-write generally does not violate ethical rules, so long as an attorney licensed by the state retains full control over the representation and exercises independent judgment in reviewing the non-licensed attorney’s work.

  1. Upcharging/Fees Charged to Client

When a law firm uses a freelance attorney for a legal project, the firm can elect to bill the client in several different ways: (1) absorb the cost; (2) pass the cost to the client at the same rate the firm paid the freelance attorney; (3) mark up the cost and pass the marked up cost to the client; or (4) pass a flat fee cost to the client.  Each of these fee arrangements are permissible in California, assuming the fee passed to the client is not otherwise unconscionable pursuant to Rule of Professional Responsibility 4-200, and the attorney satisfies the California Business and Profession Code sections 6147-6148; 6068(m) requirements regarding fee arrangements.

California case law is clear that that the amount a law firm pays to a freelance attorney is irrelevant to whether a fee is unconscionable, and nothing in Rule 4-200 suggests that the attorney’s profit margin is relevant to determine unconscionability.   Shaffer v. Superior Court, 33 Cal. App. 4th 993 (1995); Bushman v. State Bar (1974) 11 Cal. 3d 558, 564 (1974) (a fee which “shocks the conscience” is unconscionable); see also ABA Formal Ethics Opinion 2000-420 (“When costs associated with legal services of a contract lawyer are billed to the client as fees for legal services, the amount that may be charged for such services is governed by the requirement of ABA Model Rule 1.5 that a lawyer’s fee shall be reasonable. A surcharge to the costs may be added by the billing lawyer if the total charge represents a reasonable fee for services provided to the client.”); but see Texas Opinion No. 577 (ruling that in Texas, law firms may not mark-up fees of temporary lawyers).

Adding a surcharge to a freelance attorney’s rate is ethically permissible in CA and most states that follow ABA rules. If the firm chooses to add a surcharge to the freelance attorney rate, however, it likely constitutes a “significant development” sufficient to trigger client disclosure rules.

  1. Duty to Disclose

Law firms often resist using freelance lawyers under the mistaken belief that they always have to notify their clients if they are using a freelance attorney.  California rules are clear that no duty to disclose applies unless the work by the outside lawyer constitutes a “significant development” in the representation. Under Rule of Professional Responsibility 3-500, “A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”

  1. When is Disclosure Required?

What constitutes a “significant development” for disclosure purposes depends on the individual case and circumstances. COPRAC Opinion 1994-138 enumerates examples of relevant factors to determine whether a firm is required to disclose the freelance attorney relationship, including: (i) whether responsibility for overseeing the client’s matter is being changed; (ii) whether the new attorney will be performing a significant portion or aspect of the work; or (iii) whether staffing of the matter has been changed from what was specifically represented to or agreed with the client.  See San Diego County Bar Association Formal Opinion 2007-1 (discussing COPRAC 2004-165, and stating that in addition to the three factors listed in COPRAC 1994-138, whether use of a temporary lawyer constitutes a “significant development” also depends on whether the client had a “reasonable expectation under the circumstances” that a contract lawyer would be used to provide the service.)

It should be noted that in California, if a firm chooses to add a surcharge to a freelance attorney rate, i.e. pay a freelance attorney $150 but charges its client $250, this likely constitutes a “significant development,” regardless of the type of work the contract attorney intends to perform. LA County Bar Association Formal Opinion 518; OCBA Formal Opinion 2014-1.

  1. Scope and Manner of Disclosure

If disclosure is required, California ethics opinions suggest that disclosures should be in writing in a fee agreement at the outset of the case, or as soon use of the contract attorney is anticipated. See OCBA Formal Opinion 2014-1 (stating “where the lawyer reasonably expects, at the outset of the case, that he will use the services of a contract lawyer to perform significant functions, he also should include such a disclosure in a written fee agreement.”)

While there is no formal opinion or rule that discusses specifically what information a firm must disclose to a client about involving an outside contract attorney, In re Wright, 290, B.R. 145, 151-52 (C.D. Cal. Bkrtcy. 2003) may be instructive.  The Wright Court suggests that, in the bankruptcy context, a lawyer seeking fees for work performed by a contract lawyer must demonstrate that his client consented to the arrangement with the contract lawyer. In re Wright, 290 B.R. at 156.  The lawyer who hired the contract lawyer also must “demonstrate that the client agreed to the use and billing rate of [the] contract attorney if the firm contemplated [his or her] use at the time that the firm was employed.” Id. at 156.

As the OCBA Ethics Committee concluded, “there is nothing inherently unethical with a client or lawyer hiring another lawyer – often a contract lawyer – to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement. Only when the client or lawyer seeks to recover his attorneys’ fees must the contract lawyer’s role be disclosed to the court. If, however, the involvement of the contract lawyer constitutes a significant development, then his involvement must be disclosed to the client.” OCBA Opinion 2014-1; see also ABA Formal Opinion 88-356 (stating that assuming there is no division of fees, and that the law office does not charge the outside lawyer’s compensation to the client as a disbursement, the law office has no obligation to reveal to the client the compensation arrangement with the outside lawyer whether that attorney is paid by salary or on an hourly basis.)

  1. Financial Arrangements Between Lawyers – Referral Relationships

Small law firms frequently have clients who request assistance beyond a firm’s expertise.  If the firm can ensure competent representation, the firm may choose to handle these matters internally, or with help from an “of counsel,” or a freelance attorney.  There are situations, however, when a firm may best serve the client’s needs, and avoid possible ethics violations, by referring the matter to a different law firm.  Referral relationships have many benefits including cross-referral possibilities, but referrals among lawyers also involve certain ethical considerations.

  1. Referrals Between Lawyers

Referrals between California lawyers are governed by Rules of Professional Conduct 2-200 and 1-400. Attorney advertising and solicitation rules under Rule 1-400 apply to the referral situation because California allows attorneys to pay other attorneys referral fees. Attorneys must comply with Rule 1-400’s advertising and solicitation rules when making referrals the same way every attorney must comply when making statements about themselves.

Rule 1-400 states that an attorney may not make statements to a potential client that are untrue, confusing, or misleading, including when making a referral to an outside firm. Attorneys may not use intimidation, harassment, or coercion, and also may not make any guarantees or predictions when making a referral.

  1. Referral Fees

Lawyers receiving referrals from other California lawyers are ethically permitted to pay the referring lawyer a percentage of the fees collected in exchange for the referral.  Under Rule 2-200, sharing a client fee among lawyers not in the same firm is ethically permissible if the client consents to the arrangement after a full, written disclosure of the terms of the division.  The fee-division may not increase the total fees charged to the client, and the overall fee may not be unconscionable.

While it may be tempting to create a financial incentive to non-lawyers (including lawyers admitted to practice law outside California) to encourage referrals, Rule 1-320 prohibits sharing legal fees with a non-lawyer.  Rule 1-320 extends beyond a simple percentage referral fee, and further prohibits California lawyers from giving non-lawyers gifts or other compensation in exchange for referrals, or as a reward for making a recommendation resulting in employment of the member’s law firm.

As of March 2017, the California Supreme Court is reviewing proposed Rule 1.5.1, which will replace Rule 2-200 if approved. Rule 1.5.1 requires that the lawyers dividing a legal fee have a written agreement between them.  Rule 1.5.1 also requires that the written client disclosure include the (1) fact of division, (2) identity of lawyers or law firms who are dividing the fee, (3) terms of division.  The client must also consent in writing at the time of the agreement to divide the fee, or as soon as possible after the agreement.

While law firms have options when considering accepting matters beyond their current capacity, they must be mindful of the ethical rules that apply to the relationships they form with lawyers outside their law firms.  Law firms may decide to retain matters internally with help from a contract/freelance attorney on a project basis, or consistently work with an attorney who will act as “of counsel” to their firm, so long as the attorneys involved properly clear conflicts of interest, and adhere to the duties of disclosure.  Law firms may also ethically refer matters to other law firms.  Relationships among lawyers of different firms can benefit lawyers and clients alike, both financially as well as in the quality of representation.

About the Authors

Laurie Rowen and Erin Giglia are the co-founders and owners of Montage Legal Group,  a network of freelance lawyers who work on a project basis for law firms that need help with overflow and specialty areas of law.  Follow them on Twitter @montagelegal.

Prior to founding Montage, Erin and Laurie both practiced litigation at Snell & Wilmer LLP in Orange County, California.  Laurie and Erin have been featured in Forbes.com and the ABA Journal, and have received numerous honors in connection with their work with Montage, including receiving OC Metro Magazine’s 2011 “Top 40 under 40” young professionals, the National Association of Women Business Owners-OC’s 2012 Entrepreneur to Watch, and the Enterprising Women’s Magazine’s 2014 Enterprising Women of the Year Award.  Laurie and Erin have published many articles on contract lawyering, including the “Ethics of Contract Lawyering” (Part 1 and Part 2), in Law.com-The Recorder (April, 2013).  To contact Laurie and Erin with questions on freelance attorney ethics, please email info@montagelegal.com


Someone’s Posted Negative Comments About Your Firm. Now What?

By Les Altenberg

question-mark2You work hard for your clients, spending countless hours trying to represent them in the best way you know how.  Most of the time  … in fact, the vast majority of the time, your clients are extremely appreciative of your efforts. Some give you repeat business or send you referrals or post an online comment attesting to your legal proficiency.

But then, there are those times when someone determines, rightly or wrongfully that your efforts are not enough, that your turnaround time is too slow, that you made a mistake, etc. go online to a blog, or a legal directory, to Linkedin, etc. to review, complain, criticize, and perhaps, even insult. Now when a potential client does an online search, up pops less than flattering content about you, your work or your law practice.

What should you do?

But before we address that, let me advise as to what you should not do… and that is, to let your emotions get the best of you. Social media and all the good and the bad that go with it are all part of the business landscape now. Hence, it is the wise professional who understands this and approaches negative comments with the cool, detached demeanor with which he or she would address any other challenge.

This means first taking the time to analyze the validity of the complaint.  If it is legitimate, the best thing you can do is publicly acknowledge the criticism and offer a way of making good on your mistake. Oftentimes, the best relationships are borne out of a problem or misunderstanding. By recognizing your part in the matter, those reading the posts will bear witness to the fact that you are trying to do the right thing – and are doing so in a rationale, calm and “grown-up” manner. In private, you may also wish to communicate with the individual who wrote the comment and offer to make amends.  You never know. You may just be surprised to see a follow up comment that is more “glowing.”

If the complaint is not legitimate, the process is not all dissimilar. While you do not necessarily need to concur with the post or the review, you should still convey your interest in resolving the matter. This is not the time to get defensive, but rather an opportunity to show that the interests of your clients are paramount to you. Again, the goal here is to offset the negative by communicating empathy.

A well-crafted response that takes the edge off the negativity is the right way to approach such matters. This is true even if the other party has resorted to nasty comments and name-calling. That being said however, it is generally not a good idea to engage in an extended “back-and-forth” online exchange with the other party.  Get across what you want to get across and then let it go. Otherwise it may take on a life of its own and blow up into an increasingly difficult problem.

Once you have determined the legitimacy of the complaint, addressed it publicly (and perhaps also in private), there remains another, albeit ongoing task to perform. In order to drown out the negative comment, it is always a good idea to generate positive content. Ask clients you know are satisfied with your work to post comments online. The more, the better.  The rationale for this is simple. If you want you and your firm to be optimized online, you want it to be for good reasons. And few efforts are better for search engine optimization than content that is relevant and recent.

In addressing negative online ratings, evaluations or comments, it is really no different than addressing them elsewhere. Take an honest look at yourself, acknowledge (where appropriate) your role in the problem, convey understanding  and empathy, and offer to make good. Then drop it.

One other thing…As with everything else, when dealing with these kinds of situations, common sense almost always applies.

Les Altenberg

Les Altenberg is President of A.L.T/ Legal Professionals Marketing Group                          ( www.legalprofessionalsmarketing.com ), a full-service marketing firm dedicated to the business development efforts of law firms and those who serve the legal industry. He can be reached at 856-810-0400 or via email at laltenberg@legalprofessionalsmarketing.com

Why Serve? Attaching Value to Community Engagement

By Diane Bucka

Legal professionals are often in the position of trying to apply concrete value to quantify things that seem intangible. Intellectual property? Intangible assets? Pain and suffering? “Reasonable” expectations? Nailing specific, black and white figures in any of these arenas can make your eyes cross.

The same is true for connecting the dots on tangential or “soft” activities associated with business development, particularly around community engagement. Many legal pros are deeply invested in the notion of giving back, whether that takes the form of pro bono work or assisting nonprofits in their chosen cause or specialty.

So what is the tangible, measurable value in these activities?

FreelanceLaw.com Co-Owner Laurie Rowen, in addition to practicing law and serving as Co-Founder/Owner of freelance attorney network Montage Legal Group, also serves on the advisory board of Women Helping Women/Men2Work (WHW). WHW’s mission is to help its clients achieve long term economic self-sufficiency through employment success. When asked how she attaches value to her role there, Laurie doesn’t hesitate. “There is no question that my values align with WHW’s mission, and any contribution I can make to help them accomplish their goals is rewarding in its own right. But in the course of my work with them, I naturally connect with other like-minded professionals. I think it’s vital to develop those relationships, whether it’s to build a network to share expertise, or for referrals .”

Idealist.org outlines some of the ways volunteering enhances personal and professional development. This article addresses the question many of us shy away from: Will I seem self-centered if I ask “what’s in it for me?” It’s ok to acknowledge that doing good and enjoying yourself while meeting your own personal and professional goals can certainly happen at the same time.

Not sure where to start? There are many online directories – typically regionalized – like VolunteerMatch.com that can direct you to organizations and allow you to determine the nature of the assistance you wish to offer. For those here in Orange County, CA, OneOC is a great resource.

What are some ways that your community engagement has proven its value? Do you have a story to share about how giving back has paid off in spades? Please share your thoughts and inspirations as a comment below.

Logo Diane Bucka

Diane Bucka is a member of FreelanceLaw.com, and a freelance writer, content marketing specialist and paralegal who assists law firms and business owners with effective communication and business development solutions. Visit her site or reach her at diane@dianebucka.com. 

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How to Find “The One”

By Kris L. Canaday, ACP

If you’re thinking about obtaining support from a freelance paralegal (or any service provider for that matter) but are unsure of how to find someone who is a good fit for your practice or legal department, here are a few things to consider.  (Be prepared for a few surprises.)

Define positive and negative attributes of a successful freelance paralegal partnership

Before setting off to find a freelance paralegal, you have some homework.  Yes, homework.  First, be honest with yourself.  Sit down and really think about what you’re looking for in working with a freelance paralegal.  What is important to you and your practice?  What are your goals in working with a freelance paralegal?  What do you want to get out of the relationship?  What do you need?  What are you looking to achieve with a freelance paralegal?  What would make such a partnership beneficial?  Successful?

Also consider what you don’t want.  What would make such a relationship a negative, rather than positive, experience?  What would make it unsuccessful in your mind?  What, specifically, do you not want to happen?  Write down both the positives and negatives as this will form the basis for a successful partnership.  If you’re not clear yourself on what you want, need, or are looking for, both you and your freelance paralegal will be searching in the dark with no clear understanding of your goals or intent and you will likely be frustrated with the experience.

Finding a good fit

Okay, now that you know what you want and don’t want from a partnership with a freelance paralegal, you need to do your research.  (Yes, more homework.  No, it’s not law school all over again.)   You need to find a freelance paralegal who has the same ideas and goals as you.  Start with a list of questions and concerns you would like to discuss with a potential freelance paralegal.  If your top concern is security and confidentiality, you want to inquire into the freelance paralegal’s practices and procedures on this topic.  (If it’s not your top concern, it should be and you should still inquire.)  If you’re concerned about lack of control and oversight, ask what the freelance paralegal does to ensure this doesn’t happen.  Similarly, if you have a particular task you would like to delegate and just don’t know how it could be done, ask.  You’ll probably be surprised at the number of suggestions provided by the freelance paralegal.

So, is it a good fit?  How relaxed and comfortable you are with the responses will tell you if you’re on the right track.

This is also the time to convey the positive and negative attributes you identified above.  You need to discuss your goals and aspirations with the freelance paralegal so s/he has a clear understanding of what you’re seeking.  You also need to let the freelance paralegal know what you don’t want to happen; what would make the experience less than positive for you.  This will let the freelance paralegal know what’s important to you and sets the stage for a productive relationship.  If anything you’ve discussed conflicts with the freelance paralegal’s practice, s/he should let you know it may not be the best fit.

By the way, these should be real, live interactive conversations – either in person, via phone, or video conference.  DO NOT attempt to establish a relationship or ease your concerns with an email.  Back and forth email communications do not give you the opportunity to establish a relationship and become familiar and comfortable with someone as does real-life interaction.  Besides, more often than not, at least one of you will not communicate in a way that addresses everything that needs to be communicated.  It can be difficult for a freelance paralegal to know if all the attorney’s concerns are fully articulated and addressed in an email.  Similarly, as working with a freelance paralegal may be a new experience, practices and procedures in this setting are likely unfamiliar or misunderstood; what may be standard practice for a freelance paralegal may be unfamiliar to an attorney.  It’s much easier to identify unvoiced/unrealized concerns in personal communications and expand on information as necessary.  Even with the most articulate email communications, assumptions are still made.

Communicate, Communicate, Communicate

This final tip relates to both sections above and may come as the biggest surprise: Communication is the key to success; lack thereof almost always results in failure.  If you think about it, most disputes arise as a result of miscommunication or lack of communication altogether.  If you’re not a good communicator, working with a freelance paralegal may not be the most practical solution.  There are other ways to get additional support.  But, if a freelance paralegal is the best solution for your particular situation, now is the time to work on improving communication.  It may take a little more effort to find someone who is a good fit for you, but it can certainly be done.  First and foremost, be honest with that person and let him or her know you will need both understanding and help with communicating.  And, be open to suggestions; if you are, your freelance paralegal should be able to easily develop a plan for successful communication.


When you set out to find the right freelance paralegal for you, make sure you know what you want and don’t want from the partnership.  Also, make sure you inquire as to the freelance paralegal’s practices, policies, and procedures to make sure they align with your own models.  Ask for clarification and don’t hold back questions or concerns.  It all ties in to the importance of communication; if you have a hard time communicating at this stage, you may find it even more difficult down the line as you become more comfortable with the partnership and your communication becomes more lax.  You should build enough of a relationship to feel you can be honest with your freelance paralegal and not expect him or her to “read between the lines.”  Begin establishing this relationship from the beginning with real-life communications either in-person, via phone, or web conference. If you follow these guidelines, you’ll be well on your way to finding “The One.”

Kris L. Canaday


Advanced Certified Paralegal, and founder of Integrative Legal Support, Kris L. Canaday provides trademark, corporate, and litigation support to law firms and legal departments across the country.  She’s also the author of Paralegal Support 101, a knowledgebase for attorneys on the paralegal profession and paralegal support services.  She can be reached at 888-454-5782 or Kris@IntegrativeLegal.com.

Kris is also a member of Freelancelaw.com.  See http://www.freelancelaw.com.

The Managing Partner’s Nightmare: Leaving Money on The Table

By Les Altenberg

In our over 20 years of marketing law firms, one of the most often expressed concerns by managing partners is a fear that they are leaving money on the table.  By this, they are usually referring to the fact that clients are associating the firm and/or individual attorneys with specific areas of focus, rather than as a resource for resolving any of a number of legal matters.  This is typically seen in the client who contracts with a law practice for one legal matter and then walks down the street to contract with another regarding a different legal concern.

Part of this may stem from compensation arrangements that do not reward internal cross-promotion and part may simply be a function of internal politics, territoriality and a philosophy that “I’m not doing well unless you’re doing worse.”

So how does the growth-inclined law practice avoid the dreaded “’shoulda’s’ ‘woulda’s’ and coulda’s?’”

The answer lies first in creating a culture in which the firm moves from a practice area orientation to a problem-solving one. Such an orientation often requires re-educating personnel that the firm’s major focus really is on just helping people. Administrative and human resource matters should be approached with that mindset and compensation should, in large part, be based on each attorney’s capacity to do just that. That means rewarding individuals not just for the work they bring in or the work that they do, but also for the work, internal or external, that they can bring to another member of the firm’s staff. Further, in some cases, an interdisciplinary team approach to client problem-solving should be considered. And processes should be put into place that allow firm attorneys to regularly be made aware of the legal matters in which their brethren are involved.

Second, law firms must do a better job of educating both prospects and clients as to the full range of their legal services. This means developing the kinds of materials – both online and off, which easily convey the many ways in which the firm can be of service. Specific areas of the firm’s legal expertise that are buried deep inside a firm brochure or web site do little in communicating how the firm can help an individual or business in more ways than they might have otherwise thought. Instead, law practices – particularly those with disparate areas of focus, should consider development of collateral materials that highlight its portfolio of services upfront. Ditto for the firm web site.  Often, it is not enough for such content to be placed under some “Practice Area” button. That’s because the individual looking for assistance on a family law matter may never even bother to see whether the firm can also help him on his pending bankruptcy. Ditto for the corporation seeking help with transactional matters, but not knowing (or bothering to find out) that the firm can also handle matters of litigation as well.

One way in which we have seen law firms address such issues is through the development and dissemination of e-newsletters. Here, what matters most is not the actual content (though it should still be well thought-out and well-written), but rather the subject line on the address and the title of the main article. Recipients may never actually even read the content, but even in rejecting it, will nonetheless still be exposed to other services the firm provides. The goal here is not to drum up business immediately (though its been known to happen), but to plant the seeds among the firm’s database for that day when the need for a particular service does arise.

Finally, in an age where everyone is (or should be) self-publishing, it is easy to communicate the individual skill sets of specific attorneys. What is mandated however, is ensuring that the manner in which such messages are disseminated, show a consistent regard for the firm at large. This means incorporating the firm’s logo, tag line, contact information (and possibly even practice areas) into personal  online communications. Ultimately, it is the sum of all communications that serves as the face (and even the essence) of the organization.

Les C. Altenberg, Principal of A.L.T. Legal Professionals Marketing Group


Les Altenberg is a principal at A.L.T. Legal Professionals marketing Group (www.legalprofessionalsmarketing.com)  and brings over 25 years of experience to the challenges of marketing law firms.  Initially working at some of the nation’s largest and most prestigious marketing firms (Young & Rubicam, McCann-Erickson, Foote Cone Belding), Les founded A.L.T. Legal Professionals Marketing Group as a means for providing law firms and those who serve the legal profession with strategic insight and resources to which they might otherwise not have access.

He is the author of numerous legal marketing articles that have appeared in such publications as The National Law Journal, Law Practice, Texas Bar Journal and the Legal Intelligencer, among others. An avid lecturer, Les is a member of the Legal Marketing Association (LMA), a former member of the Advisory Board to the Paralegal Program at Burlington County College in New Jersey and has served as an instructor in the LMA distance learning series.

He can be reached at 856-810-0400 or via email at laltenberg@legalprofessionalsmarketing.com.

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Communication – The Key to Working Successfully with Freelance Legal Professionals

By Kris Canaday,

If you think about it, what’s the underlying cause of most disputes?  What’s a leading cause of failed relationships – both business and personal?

Ineffective communication.  Period.

Case-in-point: How many of us have had an argument or disagreement with a significant other where, when you reconcile your differences, you each realize that the other misunderstood what you were trying to say or did not have the same key information you did to be able to draw the same conclusion?

Why can mediation, arbitration, and collaborative law be so effective?  Because they bring in neutral third parties, who are not blinded by emotion, to 1) extract all that has not been communicated before, 2) help minimize emotions, and 3) present the information in a way that the receiving party understands.  Even with individuals who communicate information well, when the receiver is communicating at a different level or from a different perception, misunderstandings are bound to occur.

Sound like a hopeless situation?  Well, no.  To start, if there were no disputes, the legal profession would be significantly smaller than it is, so consider it job security.  As legal professionals, it’s our job to effectively identify pertinent facts, apply them to law, and communicate that information to help resolve our clients’ disputes.  Does that mean every legal professional is an incredible communicator across every type of situation?  No.  We’re all human.  We all strive to communicate well and avoid disputes, but at some point and at some level we fail to effectively communicate with or fully understand communications from others.

How is this relevant to working with a freelance legal professional?  Quite simple, really.  Simply realizing that communication is key to working successfully with a legal freelancer puts you on the track to success.  Realizing that problems may be the result of ineffective communication also has you well on your way.  Why?  To resolve a problem, you must first recognize it and identify its cause.

You may be used to working, and thus communicating, face-to-face with clients and colleagues.  The people you work with see you in action and thereby learn your preferences and ways of communicating.  When you work with a service provider, such as an accountant, printer, or freelance paralegal, it’s important to articulate your preferences, goals, and expectations to ensure the end-product is satisfactory, especially when establishing the work relationship.

For example, if work products ABC and XYZ are equivalent, but you envisioned ABC and did not communicate that information, you’re going to be dissatisfied if you receive XYZ.  There are many ways to accomplish the same work product and every attorney has his or her own preference in reaching that result.  Successfully communicating those ideals will afford the desired result.

When you’re working with a freelance legal professional, especially in the beginning or anytime you have something out of the norm, communication is key to successful collaboration, exemplar work-product, and a long and prosperous business relationship.


Originally published May 30, 2011, at Paralegal Support 101 under the title “Communication – The key to working successfully with a freelance paralegal (or anyone for that matter).”  Updated and reprinted with permission.

Kris Canaday (Integrative Legal Support)


Advanced Certified Paralegal, and founder of Integrative Legal Support, Kris L. Canaday provides trademark, corporate, and litigation support to law firms and legal departments across the country.  She’s also the author of Paralegal Support 101, a knowledgebase for attorneys on the paralegal profession and paralegal support services.  She can be reached at 888-454-5782 or Kris@IntegrativeLegal.com.

Kris is also a member of Freelancelaw.com.  See http://www.freelancelaw.com.

Freelancing, Editing and More – Upcoming Presentations

Are you looking to launch a freelance business or get started as a freelance writer?  FreelanceLaw.com member Ruth E. Thaler-Carter, who provides editing and proofreading to law firms and a PR firm serving the legal profession, has a number of presentations coming up.  Join Ruth and learn how to launch a freelance business, work with freelancers, edit and proofread, and more.

Upcoming Presentations:

  • “Editing on Your Own: Launching a Freelance Business,” American Copy Editors Society (ACES), Saturday, March 28, Pittsburgh, PA (http://www.copydesk.org/aces2015/)
  • “The Employer’s Side of Freelancing—Finding and Working with the Tech Comm Contractors You Need,” Society for Technical Communication (STC)-Rochester, 3–4 p.m., Monday, March 30, Rochester, NY “Going It on Your Own—Launching Your Tech Comm Business” (half-day workshop), STC-Rochester, 12:30–3:30 p.m., Tuesday, March 31, Rochester, NY (stc-rochester.org/spectrum)
  • “Getting Started as a Freelancer,” “Websites for Freelancers,” “Basics of Editing and Proofreading,” webinars for the EFA, 7–9 p.m., April 9, 21 and 28 (http://www.the-efa.org/eve/catalog.php)
  • Benefiting from the RWN’s Newspaper Column,” Rochester Women’s Network, 6 p.m., April 29, Roc City Wellness, 1598 Penfield Road, Rochester, NY
  • “Getting Started as a Freelance Writer,” “Websites for Freelancers,” “Basics of Editing and Proofreading,” classes for Writers and Books, 7–9 p.m., May 5, 12 and 20; “Back to Basics: Overcoming Your Fear of Grammar,” 1–3 p.m., Saturday, May 9, Rochester, NY (www.wab.org)
  • “Websites that Work for Editors,” Editing Goes Global conference of the Editors Association of Canada (EAC), 1:15 p.m., June 14, Toronto, Ontario, Canada (http://www.editors.ca/node/2772)
  • “Managing and Promoting Your Business,” noon, Monday, September 14, Technology Farm Associates, Geneseo, NY

For more information about these presentations or to hire Ruth Thaler-Carter for a project, visit http://www.writerruth.com.

Ruth E. Thaler-Carter

Ruth E. Thaler-Carter (www.writerruth.com) is an award-winning freelance writer, editor, proofreader, desktop publisher and speaker whose motto is “I can write about anything!”® She provides editing and proofreading services to two law firms and a public relations firm serving the legal profession and industry, among many other projects and clients. She also hosts an annual conference for freelancers (www.communication-central.com).

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2 Sides of Attorneys’ Online Presence: Being Found and Being Vetted

By Diane Bucka

Remember the big controversies over whether to take out a Yellow Pages ad for your law firm? There were legal ethics concerns, cost/benefit challenges, and general trepidation about whether even to “go there” at all. The days of questioning whether to market your law firm are long-gone; having an online presence and deploying basic business development tools are now baseline expectations for any practice.

But what should your attorney website accomplish?  There are really two purposes of existing online:  being discovered by potential clients, and presenting a viable summary of your unique strengths to help you rise above the crowd.

Ever-Elusive SEO:  Why Search Results Matter and What Really Contributes to Them:

Potential clients seeking legal services look for them the way they look for most professional services:  they ask people they trust for referrals or consult everyone’s good buddy Google. A 2014 FindLaw survey showed that searching online is the highest-ranking method to find a lawyer, beating out asking a friend or contacting local bar associations or other ads.  Arriving at or near the top of a local search for legal services depends on careful presentation of your website content along with consistent, rigorous engagement on social channels.  Participating in social media, legal forums and the like aligns your messaging with the boost provided by their broader reach.  It’s a commitment – initial set-up of profiles on social media, directory listings and ongoing posting – but one you can maintain in about 15 to 20 minutes per day if done right.  (Or, of course, you can outsource these tasks to a qualified professional.)

Try a google search for yourself to see what happens (using subject-matter keywords, not your name); notice how many of the results below the sponsored listings are from directories or social media.  If you don’t appear near the top of the organic search results, take a look at those who do with a careful eye toward what those websites say relative to intuitive search terms used.  While refined search engine algorithms no longer reward forced keyword placement or “jamming,” there’s no denying the importance of appropriate contextual inclusion of relevant search terms.

Once You’ve Been Found:  Does Your Site Endorse You?

After all the effort required to get eyeballs onto your website, don’t squander the opportunity.  Whether  for referral sources validating your bona fides or potential clients seeking solutions to vexing issues, it’s vital, at a minimum, to verify that:

  • Content addresses the most frequently asked questions you hear from new clients;
  • The language is clear, not hyperbolic, and differentiates you from other practitioners in your field;
  • Tangible, relatable success stories are presented in the form of testimonials or case studies as social proof that strongly influences buying decisions.

Consider using video to humanize your messaging; many people relate to seeing and hearing someone more than reading.

The goal is to provide content that informs, but some is properly placed on your static (fixed) pages while some belongs on your blog (which, yes, you should have).  Limit static pages to what fits on the screen without too much scrolling required, typically under 100 words per page.

Above all, more than your alma mater, your publications, or awards…..remember to keep a constant and vigilant orientation toward the point-of-view of those perusing your website to compare and vet you.  Their issues and concerns are the reason they are looking, so be sure they find what they are seeking.

About Me | Diane Bucka | Freelance Copywriter

Diane Bucka is a freelance writer, content marketing specialist and paralegal who assists law firms and business owners with effective communication and business development solutions. Visit her site or reach her at diane@dianebucka.com. 

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Montage Legal Group Acquires FreelanceLaw

Montage.FreelanceLawAfter six years operating a successful nationwide freelance attorney network, Montage Legal Group has acquired FreelanceLaw.  FreelanceLaw will enhance Montage Legal’s current freelance attorney services by providing law firms with an online searchable database of non-attorney freelance professionals.  While Montage Legal will stay focused on sophisticated contract/freelance lawyer services, FreelanceLaw is now the solution for law firms looking for all other types of freelancers – from legal secretaries to virtual bookkeepers.

Freelance professionals who specialize in serving law firms can join FreelanceLaw, and grow their own businesses by accepting projects that fit their schedules.  Once a freelancer subscribes and creates a profile, law firms can hire them directly for one-time projects or long-term work.

Founded in 2006 by Melody Kramer, FreelanceLaw is designed to be a single resource for law firms seeking access to every type of freelancer needed to start, maintain, or grow a law practice, including virtual paralegals, legal secretaries, web developers, bookkeepers, court reporters, translators, and more.  With Montage Legal Group’s excellent reputation, I am confident that aligning FreelanceLaw with Montage will strongly benefit law firms and freelancers alike,” says Kramer, owner and founder of Legal Greenhouse.

Montage Legal Group, with 100 freelance attorneys hand-picked out of thousands of applicants, is well known for its emphasis on work/life balance for attorneys, especially during parenthood.  Montage Legal’s founders, Laurie Rowen and Erin Giglia, intend to expand their family-friendly philosophy to reach beyond the freelance attorney market.  FreelanceLaw will be a supportive space for non-attorney freelance professionals who specialize in assisting law firms to find the career balance they seek.

Rowen and Giglia have been assisting law firms since 2009 by connecting them with highly skilled freelance attorneys.  “Our law firm clients have asked whether we have paralegals or secretaries on our team.  Law firms are unique businesses that require specialized skills, and are so busy that they need the convenience of a single resource. We saw an opportunity to provide our clients with that resource through FreelanceLaw,” said Rowen.

To view this press release in its entirety, please see Montage Legal Group Acquires FreelanceLaw.

Rowen and Giglia will now be managing the Legal Outsourcing Journal blog associated with FreelanceLaw, as well as From BigLaw to FreelanceLaw associated with Montage Legal Group. To submit a post for either blog, please email info@montagelegal.com.

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Eight Tips for Conducting a Successful Deposition – From a Court Reporter’s Perspective

By Stephanie Leslie

Taking a “good” deposition can help you settle the case your client’s way. Expert litigators have been able to win cases based on the quality of the deposition reflected in the transcript. Below are 8 tips that can help you make this a reality.

  • ContextProviding spellings of proper names, technical terminology, attorney names, and a caption before a deposition begins can help us to create a cleaner transcript with faster turnaround time.


  • Special Circumstances – Giving us advance notice that the deposition will be “realtime,” expedited, requiring a rough, etc. can ensure that it runs as fast and efficiently as possible with a quick turnaround time.


  • Timeout – Short breaks every hour or two not only help us rest and stretch, but also help with our endurance throughout the day. A long day with very few breaks may actually impede the integrity of the transcript.


  • Fast Talkers – A 3-second pause in between the questions and answers can help immensely. They allow us to catch up and prevent us from having to interrupt and slow everyone down.


  • Arguers – Heated arguments are often unavoidable, but you should know that if you want what you’re saying on the record, you must try your best not to interrupt and talk over others. Otherwise, it is virtually impossible to get it down.


  • Mumblers – A mumbler is usually more difficult to take down than a fast talker, so please speak up clearly, and avoid covering your mouth with your hands.


  • “Exhibit A” –When assigning exhibit markers, please pause a moment so we can mark them. We can’t type and mark at the same time.


  • Video – Beware: Everything that can be heard on the video will be transcribed. We mean “everything.”

Stephenie Leslie

Steph's Head  Shot

Stephanie Leslie, CEO and co-founder of Regal Court Reporting, has over a decade of experience as a court reporter working in the legal services industry.

Stephanie is a certified shorthand reporter, CSR #12893, with a technical degree from South Coast College in Orange.  She also holds an associates degree from Florida College.

You can reach Stephanie at stephanie.leslie@regalcourtreporting.com