The class action that has been consolidated in New Orleans is scheduled to be heard in September 2010.  This isn’t good news for either homeowners or construction companies as that date merely marks the beginning of what is going to be a long road.

As of now, there are over one hundred thousand lawsuits consolidated into the one Federal class action complaint.  Florida by itself has filed over thirty five thousand, with more inevitably to come.  It will be the largest construction defect suit in American history and will inevitably take months if not years to process.

This is too long for many.  Homeowners are stuck with houses they can’t live in, rent out or sell.  Construction companies are being held liable for defective work that their own insurers are trying to wriggle out of by citing a combination of the “pollution exclusion” or the “total pollution exclusion”, whichever they can to avoid paying out.

Homeowner Mark Peat had this reaction.

“2010 is too long.  The house stinks, the electrics keep failing, my wife is sick and I simply don’t have the cash to rent somewhere else.  We are going to have to live with family and friends.  The suit is only going to concern itself with the financial cost of this thing, not the emotional one.  Neither of us sleep well at night worrying about stuff, even the dog prefers to sleep outside now, instead of with us.  I poured my life savings into this place, and it’s worth nothing now.  Nobody would buy it for anything near its real value.”

This sentiment is echoed elsewhere in Florida as anger is directed towards insurers.  James Flested, a Tampa resident had this to say about his insurers.

“Our home insurance is a big waste of money.  The whole premise of it is to act as a safety blanket to protect us against something that happens to us that isn’t our fault.  Yet every time you try and make a claim, they state some exclusion or other to avoid paying out.  I don’t want to get rich off them, I just want what I thought I was paying for.”

Construction companies are no better off either.  Ian Hodge, director of a large contractor in the Tampa area also has similar feelings towards his insurer, and the supplier of the drywall.

“This is a sick situation we’re in right now.  The insurer has weaseled out of paying out, again.  I paid my premiums with [deleted] for years thinking they would be there when I needed them.  Should have known that corporate America would let me down again, as usual.  I don’t blame the suppliers, they didn’t know they were supplying poisonous material, but they should have better quality checking at their factories.  I have no choice but to file a lawsuit against them.  I can’t afford to repair the places we worked on out of profit because we don’t have any.  These last couple of years have been hard enough as it is, we’re barely treading water.”

The folks at the The Tax & Regulate Cannabis 2010 here in Oaksterdam California have gathered the 650,000 signatures necessary to put the legalization of marijuana on the November 2010 ballot! This major victory means  Californians will be the first in the nation to decide whether they believe marijuana should be legal…taxed and regulated for all adults over 21.

Richard Lee, the president of Oaksterdam University, owner of the famous Coffeeshop Blue Sky, and major financial supporter of the initiative told Stuff Stoners Like, “California voters believe that our laws criminalizing marijuana have failed! 56% of Californian’s support legalization and the time for reform is now.”

Kenneth Vercammen, Attorney at Law 

In this Issue

1 Recent Cases:  Patel v. New Jersey Motor Vehicle Commission

2. Congratulations South Brunswick Varsity Soccer Middlesex County Champions. 

3. Join us for community and non profit events:

1 Recent Cases:  Patel v. New Jersey Motor Vehicle Commission

2. Congratulations South Brunswick Varsity Soccer Middlesex County Champions. 

     First county championship in School history. The Vikings captured their first GMC boys soccer county tournament title with a 1-0 victory over North Brunswick. Chase Adams scored the games only goal 10 minutes into the second half off an assist from Bishoy Garis. Nick Goswami made two outstanding saves in the first half and Mike Heyer and the back line held off the Raider attack in the second half.

         In the Semi-Finals, South Brunswick defeated Woodbridge. The Vikings used a big second half to earn a trip to the GMC county finals for the third time in school history. After being down 1-0 at the half, the Vikings exploded for four goals in the second half. Midway through the second half, Bishoy Garis headed home a Patrick Harkness corner kick. After Woodbridge scored to regain the lead 2 minutes later, the Vikings responded 1 minute later on goal by Patrick Harkness. With less than 10 minutes left, Mike Heyer scored the game winner heading in a Patrick Harkness flick. Brendan Vercammen iced the game with a rocket that found the upper 90 with 3 minutes to play.

Boys team was also the GMC Red Division champs 2008, 07, 06

Championship Varsity members were:

Andrew Atalla

Jayson Boynton

Frank Capraro

Kelsey Choice

Kwadwo Darkwa-Anto    [Junior]

Taylor Denno

Jeff Dunleavy

Brian Foley

Zach Frazier

Bishoy Garis

Patrick Harkness

Michael Heyer

Michael Kitching

Jared Kling

Dan Michael

Gabriel Nunez

Anthony Parel

Carlos Roman

Tyler Smith

Shaun Sterner

Brendan Vercammen

Drew Weinstein

Tyler Armstrong

Nick Goswami

Winning Team photo from Home News Tribune:

http://www.mycentraljersey.com/apps/pbcs.dll/gallery?Site=CN&Date=20091029&Category=SPORTS0501&ArtNo=910290809&Ref=PH&Params=Itemnr=49

3. Join us for community and non profit events:

12/3/2009 Colonia Oak Ridge School “ Juvenile Law in NJ and Juvenile Delinquents in Court” Ken V’s last lecture of 2009

4. New YouTube Videos [Not fancy, intended to provide up to date information]

Watch all 100 Videos  at http://www.youtube.com/user/kvercammen

In my first post on the legal issues, I discussed the public's expectation that their social networking information is private. Here, I will move on to the challenges presented by the lack of legislative or judicial law pertaining to use of social networking information in civil and criminal proceedings. (See Social Networking - Legal and Ethical Issues for Lawyers and Investigators).

There are two primary sources of legal authority to rely on in analyzing the protection of social networking information. The first is the 4th Amendment rights against unreasonable searched and seizures, premised on the doctrine of a person's reasonable expectation of privacy.  The second arises from the Electronic Communications Discovery Act of 1986.  ECPA was enacted to extend government restrictions on wire taps from telephone calls to include the transmission of electronic data (email), although the restrictions were never extended to stored electronic data that had not yet been read by the recipient.  The standard to obtain a warrant under the 4th amendment is probable cause, but under ECPA, the standard is much lower. Originally, the prosecutor need only state that the information sought was "relevant" to a civil or criminal matter without stating any facts to support that claim. Later, the standard was raised to require at least a minimal factual basis for relevance, but is still substantially lower than probable cause.

The protections afforded by ECPA were weakened by the U.S. Patriot Act.  Among other things, the Act increased the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records, eased restrictions on foreign intelligence gathering within the United States and the expanded use of National Security Letters which allows the FBI to search telephone, e-mail, and financial records without a court order. Prosecutors and attorneys have primarily relied on ECPA standards to seek social networking information because of the lower standard to show cause.

At this point, two distinctions should be made. First, it is easier to obtain a warrant to search social networking sites in a criminal investigation than it is to obtain a subpoena in a civil case due to the greater importance of prosecuting crimes over seeking civil remedies.  That being said, even in criminal cases, only the prosecution can obtain a warrant. And while the prosecution has the duty to turn over any evidence they obtain to the defense attorney, if they believe they will find exculpatory evidence, it was asserted at the conference that they will simply then not seek to obtain the evidence.

Second, as I discussed previously, there is a difference between "transactional information" and "content."  While transactional information generally only requires a subpoena, "content" requires obtaining a warrant, since content carries a higher expectation of privacy. However, as we have seen, the 4th amendment right that protects against searches where there is a reasonable expectation of privacy does not necessarily apply in the electronic information landscape.

So the question remains: what body of law applies, and how does a law intended to regulate telephone and email interception apply to the acquisition of social networking information? The world of online interaction and social membership sites creates a new environment which old legal doctrines,even those directed at email, do not address. This is true not only of the legal standards required to obtain the information, but also of the unauthorized conduct to do so (to be discussed further in Part 3). For example, computers forensics provides a method to obtain information that was intentionally deleted from a hard drive. Web analytics and other tools aggregate data across many networks that is easily accessible. And then, when all else fails, there are always deceptive practices. The truth is we reveal personal information to an almost endless audience when we participate online through the digital footprint we leave. Neither legislative or judicial decisions have addressed the standards required to obtain admissible evidence in these environments.

As an example of how legal opinions are emerging, there is an excellent discussion of a recent trial court decision in a podcast entitled The Fourth Amendment and Email. Here, the judge ruled that no one can have a reasonable expectation that their emails are private due to the digital footprint they create.  Rulings like this must, and will, continue and go up on appeal to begin to create judicial precedent on these issues.

As this is being written, the House Judiciary Committee is considering HR3845, which would amend the Patriot Act. For an up-to-date review of that process, visit the Electronic Frontier Foundation website, or follow them on Twitter @eff. Lawyers and governmental agencies across the country are using social networks as a source of information on a daily basis, as a matter of course. Given that the legal parameters of such use are something akin in justice in the Wild West, this area of law needs to be defined and regulated. Now.

I recently attended the day-long conference entitled Social Networking: Friends or Foes? (now on MP3) hosted by the Samuelson Law, Technology & Public Policy Clinic, the Berkeley Center for Law & Technology, the Berkeley Center for Criminal Justice and the UC Berkeley School of Law. The discussion focused on the legal and ethical issues facing lawyers and investigators using social networking contents in legal matters. (For a concise summary of the conference, see Social Networking - Legal and Ethical Issues for Lawyers and Investigators). Unlike other conferences, more questions were raised than could be answered. This was no reflection on the presenters. It reflected  the fact that legal issues involving privacy and the gathering and use of social networking content as evidence are evolving much more quickly than legal answers can be found.

Four significant themes emerged from the conference:

1.  The public has little understanding  of the risk involved in giving personal information to membership networking sites (i.e.,. Facebook, MySpace, etc.) and in posting content on the site;

2.  Existing law does not adequately address the legal implications of the methods used to gather, and/or the use of, evidence from social networking sites;

3.  There are no specific ethical guidelines for lawyers to follow in participating in, or gathering evidence from, social network sites; and

4.  The evolution of third-party applications used in conjunction with social network sites is changing the landscape on a continuous basis.

I hope to address each of these themes in a series of post that may or may not be consecutive.  For the moment, let's take a look at the first issue: what is the public's expectation that the content of their site is protected from scrutiny by the public at large? Does the public have an understanding that information provided to the site for membership is protected?

First, it is doubtful the public gives serious consideration to the privacy of  personal information provided to sign up for the site (called transactional information). In fact, I'd bet the thought never even crosses their minds. They're busy thinking about posting cool photos and taking fun quizzes.  The idea that the information they just punched into those little boxes is now permanently stored on giant servers, and that the company that owns those servers may be required to give out the information in response to a subpoena or warrant is just not on their radar.

What is the public's expectation that the contents of their membership site is private to all but their friends? Probably pretty high. After all, sites provide "privacy settings" that enable you to block unwanted visitors, among other things. Users have what I call the "appearance of control" over what is disseminated to the public.

And that's all it really is: an appearance of control. The fact is that both transactional information and content can be obtained through either legal or deceptive methods and you will never know it until someone decides they want to talk to you. In person. Legally, information can be obtained by either warrant or subpoena, depending on the nature of the matter (civil or criminal) matter and information (transactional or content). But more insidious is that  there are many deceptive practices used by both public and private investigative sectors, which include, but certainly not limited to, creation of a fake social profile and attempts to "friend" either the subject of the investigation or a witness to activities giving rise to the investigation. (Whether any evidence obtained through deceptive practices is admissable is another conversation.)

In her guest post entitled Friend or Foe: UC Berkeley Investigates the Legal Landscape of Social Networking, Aspen Baker states:

There were a lot of big questions around what defines “content.”  Is “content” what you write on your wall or post on your friends page, or is it also “transactional,” the information collected about your use of the social network: what did you search for? What pages did you visit? Most of the panelists thought everything should be deemed content and should therefore be considered, and protected, as private communications.

It was also noted that social context is incredibly important to our ideas of privacy and that privacy has a lot to do with expectations.  We may not expect what we post on a friend’s wall to be private, but we probably expect that sending a private message will.  However, according to Paul Ohm, Professor of Law at the University of Colorado Law School, email services such as Gmail are changing our expectations of privacy, as we find tailored advertisements in our internet browsers.  If we are comfortable with getting advertisements for running shoes after emailing a friend about our trail run, what legal implication does this have for future expectations of privacy?

As I mentioned, these questions were raised and discussed, but any conclusions were really a matter of opinion. There simply are no legal guidelines on these cutting-edge issues.

Mark Howitson, Deputy General Counsel to Facebook, stated that Facebook tries to educate the public in its terms of use and disclaimers regarding the risks of privacy invasion when posting content on their site.  Interestingly, Facebook takes the position that by using their site, the public assumes the risk. But  others on the panel, and many in the audience, disagreed. On some intangible level it seems unreasonable to assume the public even considers these matters, or has any expectation that law enforcement agencies might be digging around in profiles on membership sites. In her blog,  Aspen Baker calls this the "buyer beware" argument and states that: ". . .we, the users, not only need to beware of the consequences of our participation, but most importantly, we need to be consumer advocates who fight for our own protections and demand legal, and wide-ranging respect for our privacy online."

This is clearly only the beginning of what will be a very long discussion in and out of courts of law, as it raises many fourth amendment concerns (to be discussed in Part II of this series). As participants in social networking and media, however, we need to begin expressing our views and creating a knowledge base that can not only benefit consumers, but also effect public policy and legal challenges to our privacy. Please voice your concerns here, to your friends and wherever the issue is discussed.

Last March, I left my in-house position in the real estate development department of an international retail chain with nothing on the horizon.  I didn't care. I was completely burnt out, and thrilled to learn I didn't even need to leave my house to apply for unemployment (apparently, they are no more excited to see us than we are to see them, so they let us apply online). I couldn't muster enthusiasm for going on job interviews, which was a good thing since there were no jobs to interview for. In my spare time, I started playing on Twitter (which is the subject of a whole other post) and was subjected to my children's ridicule for it.

One day I was standing in a checkout line, and ran into an attorney (we'll call him Brad) with whom I had co-tried a case several years ago. We both had reason to complain. His practice had dwindled to the point where he had to let go of both his associates, but found himself working constantly because he had no one else to rely on at deadline time. Now he had agreed to coach his son's little league team, but had no idea how he was going to fit it in. I told him my tale of woe, and together we fumbled through our purchases feeling very sorry for ourselves, indeed.

About 10 days later, I got a panicked call from Brad at around 3 pm. He had just finished throwing together a responsive pleading, but had to run off to practice. He wanted to know if I would be interested in editing and finalizing it for his signature the next morning. Having shepparded two sons through little league myself, I couldn't say no. So he emailed me the document, I fixed it up all nice and pretty, and returned it to him ready to go. Right there and then, the light bulb went on for both of us: he could delegate projects to me on an as-needed basis and I could start earning money in the comfort of my own home, as they say. He could be the proud coach of his son's team without stressing or needing to cancel practices and know that his work would not suffer. And me? I had the beginnings of a whole new era in my professional life.

As I busily worked to put together my business model (using Twitter, by the way) Brad referred his buddy (we'll call him Mark), a partner in mid-sized business firm in San Jose. One of Mark's clients, whose profits were declining, had warned that unless Mark could alter their billable hour arrangement and bring down legal costs, he would need to pull his account and go elsewhere. When Mark analyzed his client's billings, he realized there was no way he could offer the same services for the flat fee arrangement the client had requested. But Brad had told him about his arrangement with me, and that I charged substantially less than market hourly rate. Mark calculated that if he hired me to do the work for this client, which would free him and associates to work on higher-paying accounts, he could retain the client, still make some profit and save face. The deal was on.

The changes in law practice economics require creative approaches if you want to keep your practice thriving. We all know that big law is faltering, associates are being laid off and law clerks aren't getting those offers anytime soon. Every sector of our industry is being forced to think far outside the box to continue to serve our clients. Freelance lawyers are playing a big part in enabling solo practitioners and law firms of all sizes to stay in the game.

In my previous post, Why Outsource Legal Research and Writing Projects to Freelance Lawyers?, I discussed the theory behind the emergence of freelance law practices. But as Amanda Mineer states, ". . .despite their growing numbers, many freelance contract lawyers must fight the perception that 'they are just between jobs or don’t have it in them to be a ‘real’ lawyer.'” (See: Lawyer for Hire: Freelance Contractors Change the Marketplace by Hannah Hayes.) In fact, the opposite is true: freelance lawyers offer services that enable law practices to grow and change with our current social and economic climate.

Nor are we foreign lawyers who crank out work in the impersonal and unsecure environment envisioned by many attorneys when considering outsourcing contract work. We are attorneys right here in your country, state, or town, with fully-functioning law offices who provide specialized services that solve other attorneys' logistical or financial dilemmas.

Do you have similar, or related, dilemmas arisen for you that require a creative solution? Freelance attorneys are here to help. Take advantage of this new and exciting way to create and continue successful law practices! Click here to find the cure!

By now we all know that the mortgage lending free-for-all, encouraged by our friends in regulatory capacities, has brought both national and international financial markets to a grinding halt. I'm not being sanctimonious here: I was a real estate investor during those times, and on more than one occasion told my lender I couldn't believe they would lend me more money. That has since come back to haunt me, but we won't go there.

To go back to basics for a second, a mortgage is a loan secured by real estate, and requires a note and deed of trust (or other legal instrument) that gives the lender the right to take back the property through judicial or non-judicial foreclosure if the mortgagor fails to pay on the note. Both the note and the deed of trust, or other security instrument, must be recorded in the county in which the real estate is located to insure chain of title to the property.  The public record makes clear who owns the property, and who has beneficial interest (i.e., who can foreclose). The key to the current MERS emerging crisis is the act of recordation, or lack thereof.

So the mortgage free-for-all propelled itself by the creation of mortgage-backed securities, which were securities that derive their value from their claim on the cash flow from pooled mortgages.  They were most often sold as bonds, but the financial industry's innovation created a variety of instruments that derive their value from mortgage pools. These securities were bought and sold on an open market. However, it soon became virtually impossible to update the recordation for every transfer, or assignment, of the note and deed of trust as these securities continuously changed hands.

To solve this problem, the banking industry created the Mortgage electronic Registration Systems, Inc. (MERS), a privately held company that controls a confidential electronic registry designed to track  mortgages and the changes in servicing rights and ownership of mortgage loans. MERS was essentially intended to act as mortgagee of record for lenders,  investors and their loan servicers in the county land records. In The Problem with Assignments of Mortgages, Larry Rothenberg states that "MERS acts as nominee for the lender. When a mortgage is executed or assigned to MERS as nominee for the lender and the mortgage is registered on the MERS system, the burdensome process of executing assignments from the seller to the buyer of the mortgage upon each sale of a loan, became unnecessary."  Or so they thought.

As always, all was well until it wasn't, and enter the law of unintended consequences. As MERS began attempting to enforce its foreclosure rights under the deed of trust, the question arose: who owns the note? Actually, MERS, where is your name on the note or deed or trust?  Well, nowhere, Your Honor. Or, better yet: MERS, where is the original note? Well, we don't really know, Your Honor. . .Sir.

So this is where we are, and the courts are not excited.  So far, courts in Nevada, Arkansas, California, Alabama, Florida and now Kansas have ruled that MERS has no standing to bring foreclosure proceedings on the security instrument because it was not the beneficiary on the note.  In Landmark National Bank v Kesler, 2009 Kan.LEXIS 834 (Aug. 29, 2009), the Kansas Supreme Court saw MERS as simply a "straw man" in a mortgage transaction.  In The Problem with Assignments of Mortgages, Larry Rothenberg goes on to say:

The court [in Landmark] focused on the meaning of "nominee for the lender' as used in the mortgage. Because MERS had not lent the money tot he borrower and was not a party entitled to collect under the note or to receive the proceeds of a sheriff's sale, nor did it demonstrate  that it had a tangible interest in the mortgage, the Court found that MERS did not have an interest in the property that was impaired by the default judgment.

It is estimated that MERS serves as nominee of between 50 to 60 million loans. One of them could be yours. If you are facing the possibility of foreclosure, it would serve you well to have your mortgages documents reviewed by a real estate attorney to determine if you could challenge your foreclosure process based on the leanings of the courts so far.

Oh, and in case you think this whole thing borders on the absurd, try this: both Fannie Mae and Freddie Mac are among the shareholders of the MERS corportion. Fannie Mae and Freddie Mac were taken over by the FHA September 2008. The FHA is an agency of the U.S. Government. Absolutely no one knows the implications of that, and most likely we never will.

When I was first introduced to the concept and structure of a virtual law practice, also known as cloud computing, it was love at first sight.  I did my homework: researched and investigated the concerns and issues, and how they were being addressed in the evolution of SaaS (Software as a Service) platforms specifically designed for law firm use.  Now it was love at second sight.

Then I read Legal Implications of Cloud Computing - Part One (The Basics and Framing the Issues) and realized that the outcry of concerns against practicing law in the cloud is based on a tradition of equating cloud computing with overseas data storage. At this stage, nothing can be further from the truth.

I practice on a virtual platform, and this is how it works. When a client wants to contact me, they either call me (what a concept!) or email me by using my encrypted contact form. There are several email services that provide encrypted/secured email services.  I use Hushmail, and have found them easy, affordable and helpful.

My website includes a link called Client File Access. This link brings me to a program called Clio, an online legal practice management program using bank-grade 256-bit SSL encryption where data is stored in an enterprise-class, secured hosting environment. From then on, all communications are generated through Clio, which also stores all the information related to the case. My client receives their own username and password that gives them access to their own file, which includes all communications, documents, invoices and any other information related to their legal matter. The bottom line: you can practice law online with the same security as paying your bills.

Now, should you operate your online practice using unsecured web applications? No, although many attorneys have been doing so inadvertently for years (think about all those unsecured emails you been sending and receiving,  all those google docs that have gone back and forth). Moreover, in her article Lawyers Should Not be Wary of SaaS and Cloud Computing, Niki Black makes the argument that paper documents are far more prone to confidentiality violations than online documents.

For more information, read Infrastructure: In the Cloud, which includes a long list of SaaS Platform providers for law firms and a great discussion of the topic, and the product information at VLOTech.com. In additional, there are many articles published on the website of the American Bar Association related to this issue.

The key to this, as with any emerging industry practice, is to stay informed. The benefits of a virtual practice (and cost is not the least of them) are too important for the future of your law practice to be ignored or dismissed for lack of adequate research.

If in your search you come across information that raises new or contradictory information, please include it in a comment here so together we can address it. That's the power of this thing we call social networking!

I operate on what I call a need-to-know basis. If I don't need it, I don't know it. As a lawyer, that's how I felt about metadata - until I found out I needed to know it.

Too esoteric, you say? Read what happened to Tony Blair, and you'll change your mind.

Metadata is invisible data embedded in the content of any word document containing information about the information in the document.  The information metadata contains could be confidential.

Now, we all love one of the great conveniences of computing called redlining. We create a template of a specific document that can be used multiple times for different clients by changing the key elements that differ from client to client and case to case. But the basic format is there.

Typically, when the changes are  made by emailing the document back and forth between you and your client(s), we use the redlining function, that indispensable "track changes" feature that enables us to see what changes were made and who made them in the drafting process. Once everyone agrees to the contents of the document, it is finalized by accepting all changes to produce a clean copy. It's emailed and/or efiled, and we're all good. Maybe.

Remember those little red or blue or green lines showing the changes and identifying the person who made them? That's metadata. And guess what - it NEVER goes away by itself. This allows anyone with very rudimentary forensics skills to "mine" the document for confidential information. And not just between you and the existing client, but also any other client who had previously commented on the contents of the template in another case.

Legal opinions vary from state to state regarding the nature of a lawyer's duty to ensure their e-documents are clean. And certainly the lawyer who willfully mines the document for information would be facing a much fiercer state bar  panel than the one who inadvertently left metadata in the document. But who wants to get that far?

Fortunately, there is lots of help out there. Microsoft worked with the legal community to create Microsoft Word Legal User's Guide, covering many topics including confidentiality and metadata. You can download the entire guide for free. You can also directly access Confidentiality and MetaData in Word Documents, which includes many links to more information on how to protect your documents from confidentiality risks. Last, there is metadata cleanup software you can use the scrub those documents clean of confidential information. Although I cannot recommend one over the other, just search "metadata cleanup", and go shopping.

This one's right up there with "oops, I hit the reply all button." In an e-document world, our ethical responsibilities evolve and expand. LET'S HELP KEEP EACH OTHER INFORMED - if you find important information in reviewing the links I have provided, please add it to the comments section below, and I will be sure to spread the word.

A day in a lawyer’s life: you start out fresh, with that research project at the top of the list. Then the phone starts to ring: calls from clients you can’t ignore because they won’t put up with it anymore (it’s a new era, remember?). Calls from potential clients you don’t want to turn away. Then there’s my personal favorite: a surprise TRO that requires your appearance in court for the afternoon session. You return to the office at 3:00 pm, distracted, hungry and ready for a double expresso instead of lunch.

And there it is: that research you were going to do first thing. Time to put some quality legal analysis to work. Except at this point, you can’t even remember how to log into your research software.

Why do lawyers outsource research, writing and document drafting projects to freelance lawyers? Time, money and workflow management. Lawyers, particularly solos and small firms, wear many hats. When you are busy responding to immediate concerns, the hardest hat to put on is that of legal analyst and document drafter. It takes concentration, focus and quiet.

Hiring an associate is an option, but a costly one. As Lisa Solomon, in her book chapter  “Outsourcing Legal Research and Writing Projects”, published in Effectively Staffing Your Law Firm (Jennifer J. Rose, Ed; ABA, 2009), states:

“Another benefit of outsourcing legal research and writing on an as-needed basis is cost. Hiring an associate requires a significant investment in both time and money.  When you outsource legal research and writing projects, you pay only for the time it takes to complete the project, but when you hire an employee, you immediately add to your fixed expenses. . .Your practice may be busy enough to benefit from project-based outsourcing, but not busy enough to support another employee. Outsourcing is a wise use of your firm’s resources that can increase profitability.”

Ms. Solomon also notes that because the freelance attorney is free to concentrate on the project without interruption, it is often completed more quickly. Additionally, the ABA has issued a formal opinion that a lawyer is permitted to charge more than the cost of the outsourced work, so long as the charges are reasonable. All jurisdictions that have addressed the issue  are in accord with the ABA opinion, except Maryland and Texas.

And the best part: when you return to your office at 3:00 pm, you can actually take some time to eat a decent lunch rather than resort to your caffeine cocktail. Better for your health, your attitude and your dinner date!

Have questions or concerns regarding how to find a competent freelance lawyer, what types of projects to outsource, or other ethical issues? Please include them in your comments below and I will be happy to respond.