ACEDS-Streamline Litigation March 2015 Webcast

1. Freelance Lawyers
The industry's best kept secret.
Christopher Kozlowski

2. About Me
 Co-founder and partner of Streamline Litigation,
which I started while I was still in law school at
Villanova University School of Law.
 Interned for the Honorable Paul P. Panepinto
 Complex civil litigation cases including personal
injury and medical malpractice.
 Spent legal career working as a general
practitioner overseeing cases ranging from
commercial litigation, real estate, and
foreclosure defense.

3. Overview
 Freelance Lawyer Industry
 Benefits
 Outsourcing Discovery
 Benefits and Issues
 India’s Outsource Industry
 Issues
 Best Practices
 Ethics
 Issues and Solutions
 ABA Opinion
 Confidentiality, Client Disclosures, Conflict of
Interest, and Attorney Client Privilege

4.  Legal Outsourcing: involves subcontracting legal work traditionally done by
in-house counsel or law firms to third-party service providers.
 These services are typically concentrated on the processing of discovery but have
now expanded to virtually every service provided by law firms.
 Freelancer: a person who is self-employed and is not necessarily committed
to a particular employer long-term.

5. Freelance Lawyer Industry – Freelancer Benefits
 Work Load Control
 Autonomy
 Work life balance
 Tax Benefits
 New Connections and Diversification
 Income Control
 National Exposure

6. Freelance Lawyer Industry – Hiring Attorney Benefits
 Benefit: Cost
 Compare the national average hourly rate for an attorney or paralegal with that of a
freelance attorney.
 National Average:
 Associate Attorney: $292/hr*
 Paralegal: 118/hr**
 Freelance Rate:
 Anywhere from $35-$120/hr
*NALA, The Association of Legal Assistants and Paralegals, 2013 National Utilization and
Compensation Survey Report, Section 3 Billing Rates. (2013).
**Laffey Matrix, Civil Division of the United States Attorney's Office for the District of Columbia.
(2014).

7. Freelance Lawyer Industry – Hiring Attorney Benefits
 Benefit: Time Allocation
 When the hiring attorney outsources areas outside their concentration, it greatly
enhances the allocation of time to areas in which you are most proficient while
the client receives the benefit of work as good or better than you could have
delivered.
 By outsourcing work you may not be proficient in to another attorney, you are
able to accept other cases that may prove more profitable.
 In addition, as noted in ABA Opinion 00-420, an attorney is able to add a surcharge to
the fee paid to the freelance lawyer when billing the client for legal services, as long as
the total sum charged is reasonable.
 Attorneys often have scheduling conflicts and the use of a freelance attorney at
such times can be a solution to the problem without having to consider adding
the cost of an associate to the firm.

8. Freelance Lawyer Industry – Hiring Attorney Benefits
 Benefit: Work Quality
 ABA rules allow an attorney to take on a client even though the attorney
does not practice that area of law, as long as the attorney gains
competence.
 Utilizing a freelance attorney allows the hiring attorney to use a work
product that is superior to their own.

9. Where to Find Freelance Attorneys
 There is a choice of on shore and off shore legal outsourcing. U.S. based
freelance firms vary in the delivery and fee structure.
 Some examples would be (e.g. Montage, Freelance Law, Streamline Litigation)

10. Where to Find Discovery Freelancers
 Any trusted site that assists with meeting freelancers (e.g. eLance)

11. Outsourcing E-Discovery
 Traditionally done by large companies who specialize in document review
(e.g. Huron, Pangea3) or by law firms that handle it in-house.
 Alternative: Utilizing freelance attorneys to complete discovery tasks
 Limited quantity of ESI Discovery processing can also be processed and reviewed
by qualified and experience freelance document review attorneys.
 Regardless of the firm or attorney chosen to process and/or provide document
review services to identify relevancy, privilege, and issue spotting, the Electronic
Discovery Resource Model should always be employed and utilized.

12. Electronic Discovery Resource Model
www.americanbar.org/publications

13. Outsourcing E-Discovery Processing and Review
Understanding the EDRM Model
 Identification: Locating potential sources of ESI & determining its scope, breadth & depth. Custodian interviews
and identifying all the relevant locations of ESI.
 Preservation: Ensuring that ESI is protected against inappropriate alteration or destruction. Drafting an effective
litigation hold and crafting follow up protocols to ensure compliance.
 Collection: Gathering ESI for further use in the e-discovery process (processing, review, etc.).
 Processing: Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review &
analysis. FRCP Rule 26 governs this issue.
 Review: Evaluating ESI for relevance & privilege. Advances in technology and acceptance by U.S. District Courts of
predictive coding technology and artificial intelligence have cut down on attorney review time previously needed.
 Analysis: Evaluating ESI for content & context, including key patterns, topics, people & discussion.
 Production: Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms. FRCP 16
requires the parties meet and confer regarding discovery production as to the form or forms in which the ESI
should be produced. If the parties are unable to reach agreement, then responding party must produce ESI in
either the format it is ordinarily maintained “native” or in a reasonable usable form.
 Presentation: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-
native forms, to elicit further information, validate existing facts or positions, or persuade an audience.

14. India’s Outsource Industry
 Approximately 100 legal outsourcing firms that employ approximately 600 to 800
Indian attorneys.
 Indian services generate $80 million a year, and expects that the figures will reach
$4 billion by 2015.
Manhattan Work at Mumbai Prices: Inside India’s Hottest Legal Outsourcing Firm, Arin Greenwood
 The top 200 [U.S.-based] law firms spend more than $20 billion a year for back-
office work.
Tommy Fernandez, Low Costs Make the Case for Outsourcing Legal Work, CR.AzNs N.Y. Bus.,Sept. 13, 2004, at
21.
 Approximately 3.3 millions job and $136 billion in wages will be allocated to
countries such as India by 2015.
*Forrester Research

15. India’s Outsource Industry
 Tasks that have been traditionally outsourced:
 Phone answering services, transcription, accounting, or customer service.
 Legal task that are now outsourced are:
 Document review
 Document drafting.

16. India’s Outsource Industry
 Problem: Generally, the individual who is performing the legal work in India
does not have to be an attorney.
 As legalsupportglobal.com puts it, “the legal process outsourcing work
performed in India by Legal Support Global is supervised by Harvard Law
School trained attorneys who understand the American legal system.”
 Many times Indian companies hire an attorney from the US to supervise their
staff of local Indian attorneys.

17. India’s Outsource Industry
 Problem: Security
 Considerations:
 Secure Servers
 Do small to mid-size outsource companies have safeguards in place to prevent a leak of
confidential information?
 Indian Law
 “The International Intellectual Property Alliance's criticizes Indian enforcement as lax and
uneven. According to the IIPA, India lacks an effective mechanism for “national enforcement
coordination” and instead relies on individual states for law enforcement. This policy has
resulted in fragmentation and cross-jurisdictional difficulties. Even if crimes are
prosecuted, Indian courts face massive backlogs.”
 Example: The Bank of New York Mellon fell victim in 2008 to a data breach involving
the theft of tapes containing personal information of around 12 million customers,
while under the responsibility of an outsourcer.

18. Outsourcing to Freelancers – Best Practices
 Suggestions by the ABA
 Prepare a detailed Request for Proposal (RFP) prior to contracting any
provider.
 “First-timers” implementation process
 Security and privacy measures
 Financial stability
 Technical capabilities and infrastructure
 Procedures in place to keep apprised of technological developments and any related
case law updates
 Customer references
 Personnel qualifications (i.e. , educational background and on-the-job training)

19. Outsourcing to Freelancers– Best Practices
 Management qualifications and resumes;
 Staffing policy and procedures (i.e. , who will staff the project, whether
the team will be dedicated to specific projects);
 Quality control measures and standards (i.e. what the service level
measures are for each specific project);
 Employee training procedures and policies;
 Transparency of the various protocols and Procedures;
 Costs; and,
 Information about the facilities and the location of where the work will be
conducted (including, if possible, site visits, whether the site is in a
special economic zone and whether backup locations are ready and
available).

20. Outsourcing E-Discovery - Responsibilities of the
Hiring Attorney
 Discovery Spoliation and the importance of legal hold effectiveness
 Vetting the document review team
 Ensure ESI is secured and backed up. Secure cloud based services are typically
recommended.
 Utilizing the appropriate software tools based on the scope and nature of the
e-discovery project

21. Outsourcing E-Discovery.
Responsibilities of the Hiring Attorney
 Pricing model comparison
 Using on shore (U.S. based) versus off shore service providers
 The pro’s and cons
 Defining the scope of the review process.
 Issue spotting, privilege log, etc.
 Develop and enforce strict protocol for review process

22. Ethics
 Ethics rules set forth by the ABA generally do not apply to freelance attorneys
performing document preparation or discovery tasks.
 The American Bar Association issued Formal Opinion 08-451 in 2008 regarding lawyer's
obligations when using legal outsourcing services.
 Along with an attorney having to provide competent services, he or she is responsible for the
competence of all attorneys working under him or her.
 There have been several state and local bar association opinions on the topic, as well as
numerous law review and bar journal articles.
 The opinions overwhelmingly conclude that an attorney may ethically outsource legal work;
however, the opinions emphasize the need for an attorney to address ethical obligations
including, but not limited to: (1) adequate supervision of all work that can be deemed the
practice of law; (2) avoidance of conflicts of interest; and (3) preservation of client confidences
and sensitive information. ABA
 Danger: Unauthorized Practice of Law (UPL)

23. Ethics – Adequate Supervision
 Rule: Attorneys are required to adequately supervise the work of
subordinate attorneys and non-attorneys.
 Context: a supervising attorney must oversee anything that can be deemed
the practice of law to ensure that competent work has been performed.
 Difficulty: Physical Separation between the freelance attorney and
supervising attorney.
 How to Comply: Establish practices and procedures; Communicate regularly

24. Ethics – Conflicts of Interest
 Rule: An attorney cannot represent a party if a conflict of interest exists
between the prospective client and past or current clients.
 Context: Potential conflicts can arise through the use of outside service
providers and the contract attorneys that work for the outsourcing vendor.
 How to Comply: You should investigate.
 Note: There are no ABA requirements that a supervising attorney check conflicts,
especially if there is no confidential information disclosed.

25. Ethics – Confidentiality
 Rule: An attorney must make reasonable efforts to prevent the inadvertent
or unauthorized disclosure of, or unauthorized access to, information
relating to the representation of a client.
 Context: A hiring attorney must ensure that all client confidences and
secrets are adequately protected.
 How to Comply: Do not reveal confidential information without client’s
consent.
 Freelance/outsource attorney should sign a confidentiality agreement.

26. Thank You
 Should you have any further questions or comments please feel free to
email me at c.kozlowski@streamlinelitigation.com.
 This webinar was brought to you be the Association of Certified E-Discovery
Specialists and sponsored by Streamline Litigation.
 Streamline Litigation provides litigation support services to law firms,
insurance companies, and in-house counsel. Learn more about our services
at www.streamlinelitigation.com.

27. Cites
 Legal Outsourcing: Farming Out Work Without Reaping Ethical Problems, Gifford, C.
(2013).
 Attorney Who Billed for 29-Hour Day Did the Work, His Lawyer Says, Neil, M. (2013).
 Legal Process Outsourcing: A Guide to Important Considerations, Risk Mitigations
and Achieving Success, Prasad, A. & Mago, A. (2008).
 Preservation Guide, edrm.net (2010).
 Outsourcing Series, Part 1: When Does Outsourcing Make Sense?, Bordin, K. (2010).
 The Cost of In-House Law Firm Staff vs. Outsourcing, Chern, K. (2010).