Can a California lawyer hire an out-of-state legal research and brief-writing company to draft a brief, and what does the lawyer have to do to comply with the ethics rules?

Plain-English summary

A California attorney filed a notice of appeal in a civil case and charged an hourly rate. The attorney then received a solicitation from an out-of-state legal research and brief-writing company that employed both lawyers (none licensed in California) and non-lawyers, offering to draft the opening brief for a comparatively low hourly fee, to deliver a ready-to-file brief for the California attorney to sign, and to refund all of its fees if the appeal was unsuccessful. The attorney decided to hire the company but had not decided whether to pass the charge through to the client or treat it as an internal cost. The committee addressed two questions: whether the arrangement is ethically permissible, and, if so, what the attorney must do. The opinion does not apply to criminal cases or to court-appointed matters.

The committee concluded the arrangement may be permissible with limitations, provided the attorney at all times retains and exercises independent professional judgment. On the financial-arrangement rules, the committee found that purchasing the company's services at an hourly rate does not form a partnership with a non-lawyer (former Rule 1-310), does not divide a legal fee (former Rule 2-200), and does not share legal fees with a non-lawyer (former Rule 1-320). It reasoned the work is indistinguishable from other services an attorney might buy, such as hourly paralegal assistance, research-clerk assistance, or computer research, so even passing the cost to the client does not violate Rule 2-200. On unauthorized practice, the committee read Business and Professions Code section 6125 and former Rule 1-120 to mean that an attorney who contracts for services that assist in representing the client does not aid a section 6125 violation, so long as the attorney remains ultimately responsible for the final work product.

On competence and independent judgment, the committee applied former Rule 3-110 and concluded that because the arrangement is not "associating with or professionally consulting another lawyer," it cannot be the basis of the attorney's competence; the attorney must review the work, independently verify that it is accurate, relevant, and complete, and revise the brief before filing. Citing Beck v. Wecht, Dynamic Concepts Inc. v. Truck Insurance Exchange, and Crane v. State Bar, the committee concluded the attorney must remain ultimately responsible and cannot delegate to the company any authority over legal strategy, questions of judgment, or the final content of the product. It identified that a contract term delegating a non-delegable decision-making function, or a refund guarantee conditioned on accepting the work "as is" or obtaining the company's approval of changes, could put the attorney in a position that violates the duty to exercise independent professional judgment, and that the attorney should ensure no contractual provision gives the company control over the final work product.

On the duty to inform the client, the committee applied former Rule 3-500 and Business and Professions Code section 6068(m) and COPRAC Formal Opinion 2004-165, concluding that the relationship with the company may be a "significant development" the client must be told about, with disclosure made in the written retainer where possible. It identified that filing an appellate brief will, in most instances, be a significant development. On charging the client, the committee identified the attorney's options (pay the company without passing the cost on, pass the cost through, mark up the cost, or charge a flat fee), the disclosure duties under Business and Professions Code sections 6147 and 6148, and the rule that the attorney must accurately disclose the basis on which any cost is passed on, including disclosing any mark-up. On the unconscionable-fee question, the committee applied former Rule 4-200 and, citing Shaffer v. Superior Court, concluded that the amount the attorney pays the company is not determinative; what matters is the fee the client paid, measured by the Rule 4-200 factors. On confidentiality, it applied Business and Professions Code section 6068(e) and its own Opinions 374 and 423 to conclude that confidential information may be disclosed to outside contractors only if they agree to keep client confidences and secrets inviolate, and the attorney must ensure that protection during and after the relationship. On conflicts, it concluded the attorney should satisfy himself that no conflicts exist under former Rule 3-310 and may be held responsible for conflicts created by hiring the company. Finally, the committee concluded that any refund the company pays the attorney should be passed through to the client if the client was separately charged for the service.

Currency note

This opinion was issued in 2006 and interprets the former California Rules of Professional Conduct (including Rules 3-110, 3-500, 4-200, 1-320, 2-200, 3-310, 1-400, and 5-200) and several Business and Professions Code sections. California adopted a new, renumbered set of Rules of Professional Conduct effective November 1, 2018. Verify the current rules before relying on the rule citations here.

In practice

The opinion holds that, under the former California rules as they stood in 2006, an attorney charging hourly in a civil case could outsource legal research and brief-writing to an out-of-state company, provided the attorney reviewed and independently verified the work and remained ultimately responsible for the final product filed with the court. Per the opinion, the attorney could not delegate legal strategy, judgment, or the final content of the work product to the company, had to protect client confidences by requiring the company to keep them inviolate, had to check for conflicts, and could not charge the client an unconscionable fee. The opinion holds that, where the arrangement was a significant development, the attorney had to disclose it to the client, disclose the basis of any cost passed on (including any mark-up), and pass through to the client any refund the company paid if the client was separately charged for the service.

Common questions

Q: Can a California lawyer outsource brief-writing to an out-of-state research company?

A: Per the opinion, yes, in a civil case where the lawyer charges hourly, subject to limitations. The committee concluded the arrangement may be permissible provided the lawyer retains and exercises independent professional judgment and remains ultimately responsible for the final work product.

Q: Does using an outside company count as the unauthorized practice of law?

A: Per the opinion, no, so long as the attorney remains ultimately responsible for the final work product. The committee read Business and Professions Code section 6125 and former Rule 1-120 to allow contracting for services that assist the attorney's representation.

Q: Does the lawyer have to tell the client about the outsourcing?

A: Per the opinion, disclosure is required where the arrangement is a "significant development" under former Rule 3-500 and Business and Professions Code section 6068(m). The committee identified that filing an appellate brief will, in most cases, be a significant development.

Q: Can the lawyer mark up the company's cost and bill the client?

A: Per the opinion, the lawyer must accurately disclose the basis on which any cost is passed on, and if the lawyer marks up the company's services, the mark-up must be disclosed. Whether the resulting fee is unconscionable is judged by the former Rule 4-200 factors, not by what the lawyer paid the company.

Q: What happens to the company's refund if the appeal fails?

A: Per the opinion, any refund the company pays the attorney should be passed through to the client if the client was separately charged for the service. The committee also cautioned that a refund guarantee conditioned on accepting the work as written could compromise the attorney's independent professional judgment.

Background and rules framework

The opinion interprets a cluster of former California Rules of Professional Conduct and Business and Professions Code sections. On finances, former Rules 1-310 (partnership with a non-lawyer), 1-320 (sharing fees with a non-lawyer), and 2-200 (division of fees) correspond generally to Model Rules 5.4 and 1.5(e). On competence and supervision of non-lawyers, former Rule 3-110 corresponds to Model Rules 1.1 and 5.3; the opinion itself quotes ABA Model Rule 5.3. On unauthorized practice, Business and Professions Code sections 6125 and 6126 and former Rule 1-120 correspond generally to Model Rule 5.5. On client communication, former Rule 3-500 and Business and Professions Code section 6068(m) correspond to Model Rule 1.4. On confidentiality, Business and Professions Code section 6068(e) corresponds to Model Rule 1.6. On fees, former Rule 4-200 and Business and Professions Code sections 6147 and 6148 correspond to Model Rule 1.5.

Citations and references

Rules of Professional Conduct (former California):

• California Rules 1-310, 1-320, 2-200 (financial arrangements with non-lawyers) (Model Rules 5.4, 1.5(e))
• California Rule 3-110 (competence and supervision) (Model Rules 1.1, 5.3)
• California Rule 1-120 (assisting a violation) and Rule 3-500 (keeping the client informed) (Model Rules 5.5, 1.4)
• California Rule 4-200 (illegal or unconscionable fee) (Model Rule 1.5)
• California Rules 3-310 (conflicts), 5-200 (duties to the tribunal), and 1-400 (advertising and solicitation)

Statutes:

• California Business and Professions Code sections 6068, 6125, 6126, 6147, and 6148

Cases:

• Crawford v. State Bar, 54 Cal.2d 659 (1960), partnership and fee arrangements
• Farnham v. State Bar, 17 Cal.3d 605 (1976), the practice of law
• Bushman v. State Bar, 11 Cal.3d 558 (1974), unconscionable fee standard
• Jones v. State Bar, 49 Cal.3d 273 (1989), charging a fee without substantial services
• Crane v. State Bar, 30 Cal.3d 117 (1981), responsibility for employees' work product
• Shaffer v. Superior Court, 33 Cal.App.4th 993 (Cal. Ct. App. 1995), amount paid to a contract attorney not determinative of unconscionability

Other opinions cited:

• COPRAC Formal Opinions 1994-138 and 2004-165: contract and outside lawyers, disclosure, and division of fees
• LACBA Formal Opinions 374, 423, and 473: confidentiality with outside vendors and disclosure of additional attorneys

See also

• CA COPRAC Ethics Op. 2004-165: Outside Contract Appearance Lawyers
• LACBA Ethics Op. 473: Disclosing Additional Attorneys and Fee Division
• CA COPRAC Ethics Op. 2010-179: Confidentiality and Competence Using Technology
• TX Ethics Op. 705: Generative AI in the Practice of Law

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010585