Must a firm tell a client it is using a temporary lawyer, and how can it bill for that lawyer's time and any agency fee?
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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 284 (adopted September 1998) addressed two recurring questions about temporary lawyers (those hired for a specific project or limited period, not part-time lawyers expected to stay indefinitely): when a firm must disclose the use of a temporary lawyer, and how the firm may bill for the work and any placement-agency fee. The committee agreed with ABA Formal Opinion 88-356 that a temporary lawyer has the same duties of competence, independent judgment, undivided loyalty, and confidentiality as any other lawyer.
On disclosure, the committee charted a middle course between jurisdictions requiring disclosure in every case and the ABA's narrower view tied to supervision. Reading Rules 1.2(a) and 1.4 (keeping the client informed and consulting on means), Rule 7.5(c) (not misleading the client about the firm's organization), and Rule 1.5(e) (disclosure required when fees are divided), the committee concluded that a firm must advise the client and obtain consent whenever the temporary status is reasonably likely to be material to the representation or the client's reasonable expectations. Examples include where the temp will not be able to finish a long matter, where the client cares whether the temp has worked for an adversary's firm, or where the temp will do substantial unsupervised work; where the temp merely writes a discrete memo, the status may be immaterial.
On billing, the committee held that fees for a temporary lawyer's services are, like a regular associate's, a matter of reasonable agreement between lawyer and client under Rule 1.5(a); the firm need not disclose the temp's salary or the firm's markup, absent an actual division of fees that triggers Rule 1.5(e). Placement-agency fees, by contrast, are disbursements: under Rules 7.1 and 8.4 they may be billed to the client only at the actual amount or a specifically disclosed and agreed markup, and the agency payment may not be based on the legal fees the client pays, because Rule 5.4(a) bars fee-splitting with nonlawyers.
Currency note
This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Must a firm tell the client it is using a temporary lawyer?
A: The opinion concluded the firm must disclose the temporary status and obtain consent whenever that status is reasonably likely to be material to the representation or the client's reasonable expectations, such as substantial unsupervised work or a temp who cannot finish the matter.
Q: Must the firm reveal what it pays the temporary lawyer?
A: The opinion concluded no. As with a regular associate, the firm need not disclose the temp's salary or the firm's markup, unless there is an actual division of fees triggering Rule 1.5(e).
Q: How may the firm bill the temporary lawyer's time?
A: The opinion held the firm may bill the work at any reasonable rate agreed with the client under Rule 1.5(a), the same standard that applies to other lawyers' time.
Q: How may the firm bill a placement-agency fee?
A: The opinion concluded agency fees are disbursements that may be billed only at the actual amount or a specifically agreed markup, and the agency payment may not be based on the legal fees, because Rule 5.4(a) bars fee-splitting with nonlawyers.
Background and rules framework
The opinion interpreted D.C. Rule 1.2(a) and Rule 1.4 (informing and consulting the client), Rule 7.5(c) (not misleading the client about the firm's organization), Rule 1.5(a) and (e) (reasonable fees and division of fees), Rule 7.1 and Rule 8.4 (no false or misleading statements about services or billing), and Rule 5.4(a) (no fee-splitting with nonlawyers). It adopted the analysis of ABA Formal Opinion 88-356 on the duties owed by and through temporary lawyers.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.2(a), 1.4 / Model Rules 1.2(a), 1.4 (informing and consulting the client)
- D.C. RPC 1.5(a), (e) / Model Rule 1.5 (reasonable fees; division of fees)
- D.C. RPC 7.5(c), 7.1, 8.4, 5.4(a) / Model Rules 7.5, 7.1, 8.4, 5.4 (organization; billing; fee-splitting)
Other opinions cited:
- D.C. Ethics Op. 185 (1987)
- ABA Formal Op. 88-356 (1988); Oliver v. Board of Governors, Ky. Bar Ass'n, 779 S.W.2d 212 (Ky. 1989)
See also
- DC Ethics Op. 291: Temp Lawyer Non-Compete Limits
- DC Ethics Op. 304: Outsourcing Firm HR Functions
- ABA Formal Op. 506: Nonlawyer Assistants & Intake
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-284
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