Articles
Ethical FAQ’s
Posted on Wednesday, October 1, 2008
Lawyers may want to delegate research, writing and trial preparation to an legal independent contractor, but are concerned about ethical issues. In fact, I had many of the same questions when I first began this work directly for attorneys in 2002. This article seeks to answer the most frequently asked questions. However, lawyers are encouraged to review the Massachusetts Rules of Professional Conduct for further information.
Do you ghostwrite for pro se litigants? No. I ghostwrite exclusively for attorneys.
Do you ghostwrite for lawyers outside of Massachusetts? No. I am licensed to practice only in Massachusetts, therefore I only work in Massachusetts cases. I handle mostly domestic relations cases, but am not a specialist in domestic relations. Any work product I produce is reviewed and signed by the hiring attorney in accordance with rules of procedure which require attorneys to sign pleadings.
How do you get paid? I bill the hiring attorney at an hourly rate for work performed. Often, the lawyer will bill the client for my work. I am an independent contractor, and thus not an associate or member of any firm or partnership, therefore fee sharing is governed by Mass. R. Prof. C. Rule 1.5(e), which requires that the client consent to my participation in the case, consent to the sharing of the fee, and the total fee charged must be reasonable.
Do you keep information confidential? Yes. Mass. R. Prof. C. Rule 1.6 governs confidential information. Because the client must be informed and consent to my participation in the case, lawyers will have an opportunity to obtain consent to disclose confidential information to me for the purposes of completing an assignment. The information I receive is also kept confidential.
Do you work with more than one attorney at a time? Yes, but not on opposite sides of the same case. Mass. R. Prof. C. Rules 1.7, 1.8, and 1.9 governs conflicts of interest. I do not ghostwrite for any attorney on any matter that is adverse to clients I have represented, or clients in cases on which I have been hired as an independent contract.
Does hiring you as a ghostwriter disqualify lawyers from representing a client you would be disqualified from representing directly? Mass. R. Prof. C. Rule 1.10 governs implied disqualifications. As explained above, I will decline an assignment that is adverse to a client, former client, or to a client on whose case I was involved. However, the hiring attorney may not be disqualified from taking a case I would be disqualified from taking so long as I am not involved in the case, do not have access to the client, witnesses, or any material information, and we do not discuss the case. As an independent contractor with an office separate and apart from any other attorney, the hiring attorney does not have access to any material protected information from any case on which I have worked. Likewise, hiring lawyers wisely limit my access to information pertaining only to the specific cases for which I am hired.
Pros and Cons of Outsourcing
Posted on Wednesday, October 1, 2008
Lawyers save time, resources and often reduce stress by outsourcing certain components their cases such as legal research and writing. Clients save money because the independent lawyer often costs less and may be more efficient in research and writing tasks than the hiring lawyer due to familiarity with legal software.
While this seems like a win-win situation, there are risks. I explored lots of articles relating the dangers of outsourcing legal work. The crux of these articles centered on concerns that the attorney doing the work may be inadequately supervised, unfamiliar with local rules and procedure and outside the bounds of ethical rules designed to protect the client. There is also a danger that the lawyer may disclose confidential client information. Most of these concerns were raised in the context of outsourcing legal process services to foreign countries, but are just as relevant when outsourcing to someone locally.
I limit my work to Massachusetts cases involving probate and family law matters, a field in which I have been practicing for over ten years. I am licensed to practice law in Massachusetts, subject to the Massachusetts Rules of Professional Conduct, and carry my own malpractice insurance. With regard to attorney supervision, I confirm that all work product is received and approved by the hiring lawyer responsible for the case.
