A contract attorney is a non-employee attorney who works for another lawyer. Often, that person does discrete projects or tasks on behalf of the lawyer who "owns" the case. Being a contract attorney is more flexible and more lucrative than being an employee of a firm. However, it lacks the security, reliability, and steady hours of a law firm position. So it's not for everyone. Having done contract work for years before starting my own firm, I have significant knowledge in this area. Here, I present tips and things to watch out for in contract arrangements.
Consider your qualifications
The ideal contract attorney is about a 7-year attorney who has significant experience in a broad range of subjects. The contractor is a hired gunslinger whose job it is to take care of things that a firm doesn't have the staff and/or capacity for. So be realistic in assessing your qualifications: do you have enough experience to do this, or should you look for a traditional job? I would recommend looking for a traditional job unless you have significant law and motion, deposition, and trial experience that will actually be useful to a hiring law firm. One good thing for 7+ year attorneys is that it's perfectly acceptable to be a contract attorney for several years and no one really looks at you funny. If anyone asks in the interview why you are doing contract work, just tell the truth: "I am doing contract work as a regular source of income while developing my future law practice." Contract attorney work is for entrepreneurial people who have a flexible mindset and can logically separate out their work engagements.
Define the role in the contract
You're a contract attorney. So write a contract that makes sense for both parties in terms of maximizing each other's value. This can be a simple two-page or even one-page contract, but be sure there is a mutual agreement on what you will be doing. For example: "Contractor will perform various types of legal work on behalf of Hirer in return for an hourly rate, including but not limited to writing motions, conducting trials as appropriate, and other work Hirer may assign." You would not believe how many people forget to explain in a contract what the contract attorney is actually doing.
Set expectations for hours and office visits
If the firm hiring you is close, this is not as big of a deal. But if the firm hiring you is 30 miles away, then it needs to be worth your while to go to the office. I would recommend putting in the contract that you can be called in to the office a maximum of 16-24 hours per week, with a minimum of five hours on any particular occasion. That way you're not driving 45 minutes each way only to be told to leave after 30 minutes. Also, this lets you be flexible on where you do the work, if that's your thing. Some people love working from home; others prefer an office. If the firm hiring you gives you an office, you should generally use it because firms hate having offices sit empty.
Indicate a range of compensation
In Silicon Valley, contract attorney rates have a lot of variability. Most quotes I get from experienced contractors are just under $100 per hour, but some are $125 or higher. Some people get creative and say they want 35% of the rate they are billed out at, which makes a lot of sense. There are also people who are completely unemployed or are just starting out who only want $50 per hour. As much as I want to help people out, the $50/hr. rate is usually from people who don't have any experience or prospects, so I can't do it. If I went back time to when I was an 8-year attorney sending out contract attorney applications, I would say $75-$100 per hour depending on the number of hours. The more hours, the higher the rate due to the limitation on my ability to seek other contract arrangements. Today, for the limited contract or consulting arrangements I handle, I charge at least $125/hr.
Ensure the business end makes sense
A contract attorney is not in the game to build his or her resume/c.v. The whole point of being a contract attorney is to capitalize on experience by making a higher hourly rate than would be possible as an employee, and to have a semi-regular income to cover the development of a law practice. So I would caution anyone who wants to "start out as a contract attorney." There are a few reasons for this, but the main one is that a 0-year attorney's work is simply not billable to the client, so it makes no sense for a firm to hire a 0-year contractor.
Avoid supervising other people's associates
You are taking on serious, significant obligations if you start supervising a firm's associates. You have to read the firm's professional liability policy carefully to see what the exclusions are. If you are nominally supervised by a partner in the firm but you actually don't consult that person for anything except the most big picture decisions, then you are not likely covered by the firm's professional liability policy. Although you may be entitled to some form of equitable indemnity, it is always better to have contractual indemnity. Thus, your contract with the firm should provide that in the event you supervise the firm's associates in any fashion, the firm will defend, indemnify, and hold you harmless from any consequences. Because your own professional liability policy will definitely exclude work done even nominally under another attorney's supervision.
Have and comply with a professional liability policy
Your own professional liability policy is a big benefit from a perceptual standpoint, if nothing else. Although there will be no coverage for work done under the hiring firm's supervision, it's a nice marketing point to be able to say "yes, I do have malpractice insurance with a seven-figure limit." Some firms will request a copy of your policy for their records or for their own insurer's records.
Push back on questionable decisions
You're a contract attorney, not an employee. Although you're risking the firm ending the relationship if you do this, my recommendation is to resist questionable legal and ethical decisions by either recommending a different course of action or declining to work on that particular case. Declining to work on a particular case is effective because then the hiring firm has to find other staff to handle it. And if the hiring firm's other attorneys also resist working on the matter, then that is a big red flag to the firm that they should get out or take a different course of action.
Always produce top quality, billable work
For the same reason that you are not in the contract attorney game to build your c.v., a hiring firm is not hiring you as a contractor out of the goodness of their hearts. They are hiring you because they can't justify bringing on a full-time employee to do the same work, for whatever reason. Plus they want to make more money. So you need to deliver. Your deliverable is billable work that doesn't need to be written down and that the firm can literally copy and paste into its bills. So make sure all the work is billable, and feel free to do "no charge" entries so the firm feels like it is getting extra value from you.
Do not let the hirer write off any of your time
If all of your work is billable and you were efficient, then the firm has absolutely no right to write down your time. This should also be spelled out in your contract in order to avoid disagreements. I have been in one situation before where a crazy lawyer wrote down my contract time by 40% and refused to pay the rest. He was thinking to himself that he, a maniac, could have done the work in 60% of the time. So that arrangement didn't last long.
Do not work for similar firms in the same geographic area
This one is obvious because similar firms are all litigating against each other and/or are in competition with each other for the same clients. If you conflict out a firm because you do undisclosed contract work for a firm in the same peer group, that will be the end of your contract relationship with both firms. To prevent that, be sure that you only work for one firm in a particular practice area in a particular geographic region. This is challenging, so personally I recommend looking for one firm in your home area, and one firm somewhat far away that has a different practice area. That way there is less of a chance that you will cause the firms to run into each other and drop you.
Last updated: July 6, 2018
© 2018 Andrew G. Watters