Using an Independent Contractor in Your Legal Practice

By Ellen Rappaport Tanowitz

Every business is cyclical, and law is no different. For me, personally, it is either feast or famine. This can leave a solo practitioner or a small firm in a bind. You don't want to hire an associate only to have him or her sit around when times are quiet. On the other hand, when business is hopping, it can sometimes be overwhelming to get all the work done. So what to do? You don't want to turn work away, since you never know when that famine is going to hit. One alternative might be to use independent contractors-both lawyers and paralegals-to help you when things get very busy at your firm. In the interest of full disclosure, I do independent contract work for a number of lawyers in the Boston area. It helps me keep my plate full, and I still learn things from the lawyers that I do work for.

What is an independent contractor? An independent contractor is an individual who works for you on a project-by-project basis for you as you need the help. For example, you recently left your big firm for a solo life and have a trial coming up. You need someone to help you with trial preparations. An independent contract lawyer could write your jury instructions or do findings of facts and rulings of law. Or you find that you have an opposition to a summary judgment and discovery responses due in two pretty large cases due in two weeks, and one of you best clients calls to inform you he's been named as a reach and apply defendant in a suit, the opposition is due in three days, and the hearing is in seven. What do you do? Dump something to the independent contractor to focus on the emergency.

How are they paid? Most independent contractors work on an hourly basis. Rates vary, but most of the time they charge approximately one-half of their "rack rate" or the rate they would charge if they were doing it directly for a client. Every state except Maryland lets lawyers mark up the hourly rate for independent contractor work, so its a win-win for everyone. The independent contractor gets to make a decent rate, and you get to make money off of the contractor. You don't have to pay the independent contractor when you don't have work for them, so you avoid having associates twiddling their thumbs. On the other hand, most contract lawyers require you to pay them even if the client stiffs you on the bill.

What about research, malpractice, and other practical issues? Every contract lawyer is different. I have my own clients in addition to the contract work, so I have always carried my own malpractice insurance. Sometimes a lawyer can add you on to their policy for little or no cost. As for research tools, some lawyers may already have computer-assisted legal research and can lend the contract lawyer a password. Also, make it clear what you will and will not be reimbursing the contract attorney for. Copies? Postage? The most important thing is to make it clear so that both you and the independent contractor understand the parameters.

Who decides to do this kind of work? There are many different types of lawyers who choose to do independent contracting work. Some are people who want to work part-time due to family or other commitments; some are other solos who are looking to boost business until they have enough clients of their own. Some are young attorneys hoping to gain experience.

An independent contractor can be great way to bridge the gap when you have a heavy workload without taking on the responsibility of paying another person in your office.