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May 2006
Practice Management Strategies Part 14 The Hazards of Using ”Of Counsel” and Temporary Lawyers
“Of Counsel” Lawyers
Recognize the potential vicarious liability issues involving the use of of counsel lawyers If you list lawyers as of counsels on your law firm letterhead, it is important to be aware that the possibility exists that you may be vicariously liable for acts of the of counsels attorney, even if those acts do not relate to activities conducted under the auspices of your law firm. Also, the of counsels lawyer may be held to be vicariously liable for the law firm’s misconduct.
While the outcome of a given situation will necessarily depend to a large degree on the particular facts, it is helpful to beware of the vicarious liability potential.
Beware of conflicts of interest which may arise by bringing on of counsels lawyers If you re considering associating your firm with one or more of counsel lawyers or a corresponding firm, before consummating the relationship is worthwhile to consider and check into whether such an association could possibly involve a conflict in the sense that your law firm and the of counsel lawyer may be representing clients who have interests adverse to one another.
Temporary Lawyers
Be aware that the use of temporary lawyers, paralegals, and support staff creates an extra-hazardous professional liability exposure The use of temporary lawyers and other staff is perceived to create a high degree of professional liability exposure. Generally speaking, the law firm will usually be vicariously liable from a professional liability standpoint for the action of any of its temporary lawyers or employees. Important reasons for the heightened exposure include the following:
! Even if purportedly screened by the search firm or employment agency, the temporary lawyer’s abilities, performance level, and dependability are largely unknown
! The temporary lawyer is unfamiliar with your firm’s standards, goals, values and culture
! The temporary lawyer is unfamiliar with your systems procedures, record keeping and documentation standards
! The temporary lawyer has no stake in the outcome
Recognize that the use of temporary lawyers often creates a potential conflict of interest nightmare– When using temporary lawyers, it can be very difficult to track where they have previously worked, or which clients they have worked on behalf of.
There are cases of temporary lawyers working for one firm on one side of the case, and next week moving over to work for the opposing party’s law firm. Some temporary lawyers work for as many as four or more different law firms at the same time.
Paralegals who work on a temporary basis may bring a host of potential hidden conflicts with them, and paralegals are often not scrutinized closely as far as their backgrounds and past involvements. Even if the lawyer search firm purports to do a background check and keep track of where temporary lawyers have worked, the potential of past, present or future conflicts is omnipresent due to the constant movement of many temporary lawyers.
Make sure you have effective supervision and oversight of temporary lawyers It is critical to make sure the temporary lawyer’s performance and work product are acceptable, and meet your firm’s standards.
Be sure to address confidentiality issues with temporary lawyers All temporary lawyers and staff members should be given a primer on confidentiality rules overall, and also how they apply to the particular case on which, or the client for whom the temporary lawyer is working. #
Disclaimer: Perspectives is published as a service to lawyers. While the information contained herein is believed to be reliable, readers are advised to consult their own legal and insurance counsel for assistance in applying it to their unique situations.
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