Ethics Opinion 284
Advising and Billing Clients for Temporary Lawyers
澳门赌场官网是否必须向委托人披露使用临时澳门赌场官网处理委托人事务的情况，取决于工作的性质, the reasonable expectations of the client, and the nature of the relationship between the employing lawyer and the “temporary” lawyer. 雇佣澳门赌场官网一般不需要向委托人透露临时澳门赌场官网向澳门赌场官网或澳门赌场官网事务所支付的费用, 澳门赌场官网可以按双方都同意的合理费率向委托人收取临时澳门赌场官网工作的费用. Agency fees or other fees associated with the hiring of a temporary lawyer may not be billed to the client at greater than the amount actually disbursed or at a specifically agreed to markup.
Applicable Rules
- Rule 1.2 (Scope of Representation)
- Rule 1.4 (Communication)
- Rule 1.5 (Fees)
- Rule 7.1 (Communications Concerning a Lawyer’s Services)
- Rule 7.5 (Firm Names and Letterheads)
Inquiry
Ethics opinions from the American Bar Association1 and from various state jurisdictions,2 together with recent articles in legal periodicals,3 indicate that changes in the legal workforce and legal marketplace have increased demand by lawyers and clients for “temporary” lawyers to assist in legal representations on a short-term basis. As this phenomenon has become more common, 有必要将传统的伦理考虑应用于一种可能不容易符合传统模式的实践形式. Because we believe that there has been some confusion among lawyers and clients as to the ethical questions relating to: (1) requiring disclosure to the client of the use of temporary lawyers, and (2) billing the client at a markup for the temporary lawyer’s work, we seek to clarify application of the Rules in the District of Columbia to these issues.
Discussion
对这一主题的文献回顾表明，澳门赌场官网事务所和“临时”澳门赌场官网之间存在各种各样的雇佣安排. In essence, a temporary lawyer is one who is not a partner and who is employed by a practitioner or a law firm to work on either a specific project or matter or for a fixed or otherwise limited period of time. If the relationship is expected to last indefinitely, regardless of whether it actually does, the employment does not fall within the category that we discuss in this opinion. Nor does this category include part-time lawyers, 受雇时间可能少于全职，但专为一家澳门赌场官网事务所工作，且受雇期限不确定的. The temporary lawyer may work for one law firm at a time or for several law firms simultaneously. The temporary lawyer may be hired directly or through an employment agency for a fee, and may be paid directly by the law firm or by the agency.
Temporary lawyering offers benefits to clients as well as to the lawyers who use them. Yet, temporary lawyering also poses a number of complex ethical issues, including those relating to competence, independence, undivided loyalty, conflicts of interest and confidentiality. As noted, in 1988, the American Bar Association issued a formal opinion, 88-356 (Dec. 16, 1988), which addressed a number of these issues. Its analysis of the conflicts, undivided loyalty, 关于临时澳门赌场官网的保密问题已经得到了一致的认可并且很有说服力. In essence, 临时澳门赌场官网与其他澳门赌场官网一样，有同样的道德义务，有能力处理所提交的事项, to exercise independent professional judgment, to devote undivided loyalty to the client, and to preserve the client’s confidences and secrets. 临时澳门赌场官网及其雇佣澳门赌场官网均有义务确保符合适当的标准和要求.
However, 法院或道德委员会在随后的决定中并未统一遵循美国澳门赌场官网协会对客户信息披露问题的解决方案. The ABA opinion concluded that the use of a temporary lawyer had to be disclosed to a client only if the temporary lawyer is not working under the close supervision of a regular lawyer at the firm. This conclusion has been rejected by the Supreme Court of Kentucky and bar associations in Illinois, New York, and Ohio.4 These authorities have concluded that under the ethical rules in those jurisdictions a lawyer should invariably disclose to a client the proposed use of a temporary lawyer on the client’s behalf and receive consent from the client.
In this opinion, we address the question of whether a lawyer must disclose to the client the proposed use of a temporary lawyer on a client’s matter and the billing obligations of the lawyer for the temporary lawyer’s work and any related agency fees.
我们的纪律规则并没有明确规定与临时澳门赌场官网有关的信息披露和计费行为. Rather, there are a number of rules that, when considered in concert, in our judgment, lead to a middle ground between the ethical opinions (such as Illinois, New York and Ohio) that require an lawyer to disclose to the client any time that the lawyer proposes to use a temporary lawyer on the client’s matter and the ABA opinion which limits disclosure only to the situations where the employing lawyer is not closely supervising the work of the temporary lawyer. In our view, Rules 1.2(a) and 1.4 dictate that the temporary status of a lawyer working on a client’s behalf should be disclosed to the client whenever that status may reasonably be likely to be material to some aspect of the representation of the client.
On the other hand, 我们的规则并不要求告知客户临时澳门赌场官网对澳门赌场官网或澳门赌场官网事务所的费用. 澳门赌场官网可以对临时澳门赌场官网提供的法律服务按澳门赌场官网与委托人共同商定的合理费率收费, provided any disbursements associated with hiring a temporary lawyer (such as agency fees, if they are to be billed to the client) are billed at the amount of the disbursement or an agreed upon markup.
- Disclosing the Use of “Temporaries”
There are a number of rules that bear on the issue. Rule 1.第4条规定澳门赌场官网在任何情况下都必须让委托人合理了解情况，以便委托人就代理事宜作出决定. Similarly, Rule 1.2(a) provides that “a lawyer . . . 应就实现[代理目标]的方法与客户进行协商.” Rule 7.5(c) provides that a lawyer may not mislead the client as to the lawyer’s practice “organization.” Finally, Rule 1.5(e)(2) provides that where a lawyer divides the client’s fee with any outside lawyer, including a temporary lawyer, disclosure to the client is required. Thus, 如果需要进行费用分配(而不是由澳门赌场官网事务所向临时雇员支付工资或按时间支付费用), the rule mandates that “the client [be] advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged.” The rule also requires that the client consent to the arrangement. See also Rule 1.5, Comment [14].
Read together, these provisions illustrate the requirements that lawyers actively advise clients of critical matters, including important staffing issues, and that they not mislead clients as to the associations in which they practice, 包括他们自己或他们的事务所与事务所以外的澳门赌场官网之间的关系，这些澳门赌场官网被雇佣来处理某一特定问题. 这些规则确立了客户有合理的权利期望其将被告知对代理而言重要的任何事项.
通常，被指派为客户工作的澳门赌场官网的临时身份很可能对代理很重要. For example, if the client’s matter is expected to last for a considerable period of time but the temporary lawyer’s involvement is to be limited to a shorter period because her employment is scheduled to end, then the client is entitled to know that fact. The client may not wish to employ and educate a lawyer to work on his case who will not reasonably be expected to be able to finish out her responsibilities regarding the case. Similarly, a client whose adversaries in unrelated matters have retained a particular law firm may well want and expect to know whether a temporary lawyer is currently or has in the recent past worked for that law firm. Finally, when the client is relying on the expertise and talents of the employing lawyer (or partners and associates of the lawyer or the reputation of the law firm) and the temporary lawyer will have important responsibilities and will not be closely supervised by such lawyers, 然后明确聘请澳门赌场官网有义务向委托人披露临时澳门赌场官网的身份，并获得临时澳门赌场官网工作的同意. Indeed, 我们同意美国澳门赌场官网协会的意见，即临时澳门赌场官网的工作将不受聘用澳门赌场官网或澳门赌场官网事务所的密切监督, 通常应告知委托人临时澳门赌场官网拟扮演的角色及其作为临时澳门赌场官网的身份. Exceptions would include when the temporary lawyer’s work does not require the substantial exercise of judgment, such as the digesting of deposition transcripts.
On the other hand, there are situations in which the temporary status of the lawyer will be irrelevant to the client’s interests. For instance, if a temporary lawyer is employed to write a single memorandum on a specific legal subject in the case without any expectation that the temporary lawyer would continue to be involved in the client’s matter, then it is irrelevant that the employment of the temporary lawyer is limited in time where that time is as long or longer than the assignment for the client is expected to last.
在其他情况下，可能需要将澳门赌场官网的临时身份告知委托人. For example, the client may have stated or manifested a desire that it have available to it a regular cadre of lawyers who will develop expertise and be available to work on a series of expected matters. 这样的客户不太可能希望雇用和教育一个不太可能为客户的未来事务工作的澳门赌场官网. In such a circumstance, the temporary status of a lawyer would be material to the client and the employing lawyer would have a duty to disclose at the outset of the temporary lawyer’s assignment to the project.
In short, in our view, the combination of rules that we have cited mandates that a lawyer should advise and obtain consent from the client whenever the proposed use of a temporary lawyer to perform work on the client’s matter appears reasonably likely to be material to the representation or to affect the client’s reasonable expectations.5
披露临时澳门赌场官网的角色并不一定意味着事务所与临时澳门赌场官网之间的财务安排必须披露. That is a wholly separate issue to which we now turn.
- Billing Clients for Temporary Lawyers
The billing for services of a temporary lawyer raises the issue of whether the charge is more akin to seeking reimbursement for out-of-pocket disbursements or to charging for the time of a regular associate, whose salaries and benefits are not required to be, and are not generally, disclosed to the client. If the employing lawyer’s payments to a temporary lawyer are considered to be out-of-pocket disbursements, there would have to be disclosure to the client of the costs, which could not be marked up without the client’s consent. (See Op. No. 185).
All of the precedents in other jurisdictions and our analysis of the D.C. Rules convince us that the charges to be billed to the client for the services of a temporary lawyer are, like the services of a regular associate, a matter to be determined by mutual agreement between the lawyer and client. We find that fees generated by a temporary lawyer are, for purposes of the disciplinary rules, equivalent to fees generated by any other lawyer in a law firm working on the client’s matter. Accordingly, 对向客户收取临时澳门赌场官网时间费用的唯一纪律限制是“合理”.” See Rule 1.5(a).
No court decision or bar association opinion has suggested that the employing law firm must disclose to the client the salary it pays to the temporary lawyer or the markup the firm charges the client for the temporary lawyer’s time. It is, of course, usually the case that the law firm does not disclose to clients the compensation arrangements of partners, contract partners, of counsel, or regular associates. We see in the rules no reason for a distinction for the compensation paid to a temporary lawyer, unless there is an actual division of fees. As noted, when there is an actual division of fees, Rule 1.5(e) requires notice to the client and the client’s consent. In the absence of fee splitting, 唯一的要求是事务所对临时澳门赌场官网的时间收取的计费费率是合理的，并得到客户的同意. 事实上，临时澳门赌场官网与雇佣澳门赌场官网事务所对客户支付的临时澳门赌场官网服务费有约定的分配, we believe that the requirements of 1.5(e), including notice and the client’s consent, must be met. The payment of a salary to a temporary lawyer, of course, just like the payment of the salary of a regular employee would not be considered a division of fees.
Finally, in addition to the charges incurred by the law firm for work done by a temporary lawyer, 在某些情况下，公司可能会向“职业介绍所”或其他推荐公司付款，以寻找和雇用临时澳门赌场官网. As the ABA formal opinion concludes, these expenses are disbursements and are not salary for purposes of billing the client. In accordance with Rule 7.1’s requirements that a lawyer not make false or misleading statements about the lawyer’s services and Rule 8.4 prohibiting a lawyer from any misrepresentations, if these disbursements are billed to the client, 他们必须被限制在不超过实际支付金额或任何加价，是特别向客户披露和同意. See also Op. No. 185 (1987) (finding that under the Code of Prof. Conduct, 关于廉正和诚实的规定要求第三方服务的费用按成本价向客户收费). The payment to the agency may not be based on the amount of the fees paid by the client to the firm for the legal services rendered because no fee splitting is permitted with non-lawyers. See Rule 5.4(a).
Inquiry No. 97-3-15
Adopted: September 15, 1998
1. ABA Formal Opinion 88-356 (Dec. 16, 1988).
2. N.J. Sup. Ct. Advisory Comm. on Prof. Ethics Op. 632 (Oct. 12, 1984), Oliver v. Board of Governors, Ky. Bar Ass’n 779 S.W.2d 212, 216 (Ky. 1989); Ill. St. Bar Ass’n Advisory Op. on Prof. Conduct 92-97 (Jan. 22, 1993); Ohio Bd. of Comm’rs on Grievances and Discipl. Op. No. 90-23 (Dec. 14, 1990): Bar of City of New York Comm. on Prof. and Judicial Ethics Op. No. 1988-3 (Mar. 31, 1988), reaff’d, Ethics Op. 1989-2 (May 10, 1989).
3. Johnson, Law Firm Salaries and Billing Rates, Legal Times, Dec. 16, 1996, at 536; Adelman, Choosing Among Different Models to Charge Clients for Contract Lawyers Can Be Tricky Business, Legal Times, June 30, 1997, at 569; see also Turano and Dolido, When is a Law Firm an Employer and Responsible for its Contract Lawyers, Legal Times, July 15, 1996, at 11.
4. But see, e.g., Oliver v. Board of Governors, Ky. Bar Ass’n, 上注2(“我们不能接受美国澳门赌场官网协会的区分，并建议向客户披露公司的意图 . . . to use a temporary lawyer . . . in order to allow the client to make an intelligent decision whether or not to consent to such an arrangement.”). See also Ill. St. Bar Ass’n Advisory Op. on Prof. Conduct Op. 92-97 (Jan. 22, 1993); Ohio Bd. of Comm’rs on Grievances and Discipl. Op. No. 90-23 (Dec. 14, 1990) (requiring disclosure of temporary lawyers under Code of Prof. Conduct); Bar of City of New York Comm. on Prof. and Judicial Ethics, Op. No. 1988-3 (Mar. 31, 1988), reaff’d, Ethics Op. 1989-2 (May 10, 1989) (“The Committee continues to believe that the law firm has an ethical obligation in all cases . . . to make full disclosure in advance to the client of the temporary lawyer’s participation . . . and to obtain the client’s consent . . .”); but see N.J. Sup. Ct. Advisory Comm. on Prof. Ethics Op. No. 632 (Oct. 12, 1989) (agreeing with ABA that disclosure turns on level of supervision).
5. Because we recognize that there may be different considerations relating to temporary nonlawyers, employed to assist a lawyer, our analysis and this opinion is limited to temporary lawyers.
