D.C. Bar Legal Ethics Committee, Opinion No. 284, Advising and Billing Clients for Temporary Lawyers, 126 Wash. Law Rep. 1877 (Oct. 6, 1998)

In this Opinion, the Legal Ethics Committee cleared up confusion as to ethical questions relating to (1) requiring disclosure to the client of the use of temporary lawyers, and (2) billing the client at a markup for the temporary lawyer’s work.

A "temporary lawyer" is one who is not a partner and who is employed by a practitioner or a law firm to work on either a specific project or matter or for a fixed or otherwise limited period of time. If the relationship is expected to last indefinitely, regardless of whether it actually does, the employment does not fall within this category. Nor does this category include part-time lawyers.

The Committee concluded that Rules 1.2(a) and 1.4 dictate that the temporary status of a lawyer working on a client’s behalf should be disclosed to the client whenever that status may reasonably be likely to be material to some aspect of the representation of the client.

On the other hand, the Committee concluded that the ethical rules do not require that the client be advised of the temporary lawyer’s cost to the lawyer or the law firm:

The lawyer may bill the legal services provided by a temporary lawyer at any reasonable rate mutually agreed to by the lawyer and by the client, provided any disbursements associated with hiring a temporary lawyer (such as agency fees, if they are to be billed to the client) are billed at the amount of the disbursement or at an agreed upon markup.

The Committee gave some examples of when use of a temporary attorney may well be material to the representation. One example is that if the client’s matter is expected to last for a long time, but the temporary lawyer’s involvement is to be for a shorter time, the client is entitled to know that fact. "The client may not wish to employ and educate a lawyer to work on his case who will not reasonably be expected to be able to finish out her responsibilities regarding the case."

Another example is where the temporary lawyer is currently or has in the past worked for the adverse party’s law firm. The client may well want and expect to be told about that.

A third example is where the client is relying on the expertise of the employing lawyer, and the temporary lawyer will have important responsibilities and will not be closely supervised. A duty to disclose then clearly exists.

On the other hand, the temporary status of a lawyer is irrelevant if the lawyer is employed to write a singe memorandum on a specific legal subject, or is doing work that does not require the substantial exercise of judgment (such as digesting depositions).

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