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Bargain Shopping for Legal Services

The sheer number of lawyers in Allegheny County could be a problem for new attorneys seeking work, but may also be a blessing for area businesses.

There are more lawyers per capita here than in any other area of the nation except Washington D.C. (Business Times, May 26). Because of this oversupply, there are many lawyers who are out of work, or who will work inexpensively.

New companies are forming as a result, offering alternatives to high-priced law firms that charge an hourly rate- alternatives such as flat fee or contingency arrangements and temporary services.

Legal Network Ltd., a North Hills based company, keeps a registry of about 750 lawyers and paralegals who work on a contract basis only- at much cheaper rates than lawyers at the bigger firms.

Many of these lawyers either can’t find work or are looking for full-time positions. They’re used as temporary workers, performing many “back office” functions, such as document review. These are tasks that require a lawyer, but not necessarily an expensive one.

For example, a senior attorney at one of the large firms could cost $200 an hour; Legal Network will provide a lawyer with the same experience for $77 an hour.

“This is tactical use of contract attorneys,” said Bradley Franc, a lawyer and co- owner of Legal Network.

Just because these lawyers are part time doesn’t mean their skills are lacking, Mr. Franc said. About one third of Legal Network’s lawyers are offered full time jobs by the law firms for which they do temp work. About 15 percent of them made law review in school, a prestigious position on a legal journal reserved for the best students. About a quarter of the lawyers are right out of law school and couldn’t find full- time positions, Mr. Franc said. They work at Legal Network to gain experience.

The bottom line, from the client’s perspective, is saving money, especially when a company needs an army of lawyers working on a case or deal.

Mr. Franc cited the example of a company that required a long term discovery. The business racked up 3,443 hours of billable time. By using contract lawyers at a rate of $32 an hour, instead of law firm lawyers at a rate of $150 an hour, the company was able to save over $400,000 in one year, said Mr. Franc.

David Charnock, the business manager for Rothman Gordon Foreman & Groudine, a Downtown law firm, said his firm uses Legal Network when there is an immediate need for one or two experienced attorneys, but not a need for full time staff.

“We can get specific people with a specific need, ” Mr. Charnock said. “When you look at the hourly rate they are charging, it isn’t at all that exorbitant.”

Although the lower rates are nice, there are some lawyers who will work on a contingency fee basis, which means they don’t charge a fee unless they win the case. Such arrangements are more rare among business oriented law firms than they are among personal injury firms.

Downtown firm Silkov and Love works on a contingency basis, a risky proposition for a firm of only five lawyers. “We take on a clients case as an investment,” said partner Jay Silverblatt. “But we won’t take a case that is a loser.”

Mr. Silverblatt, who has been trying corporate cases on a contingency basis for 17 years, said his firm’s success with the billing strategy has been high; the cases he picks seldom lose. But he said most companies don’t bite on that pitch, he said, because the corporate mentality is to use a big firm and pay on an hourly basis.

“I always scratch my head and wonder why,” Mr. Silverblatt said. Of course, alternative billing practices aren’t solely the domain of small and non traditional law operations.

For instance, the Pittsburgh office of LeBoeuf, Lamb, Green & McRae, a New York City based law firm, handles all of Alcoa’s litigation on a flat fee basis. Alcoa pays a fixed retainer (regardless of outcomes), and LeBeouf, Lamb handles all the company’s litigation. While not the norm these days, flat fees and contingencies are neither particularly new or surprising. They date back to the beginnings of American legal practice/

However, Pre-Paid Legal Services, an Oklahoma-based company, is trying something more radical in it’s approach to billing. The company, which recently opened an office in Monroeville, is taking a page from the health care book in its approach to billing small companies.

Call it managed law. For companies with 20 or fewer employees and gross profits of less that $2 million annually, Pre-Paid can eliminate many nickel and dime legal expenses with a premium-like fee.

For $69 a month, Pre-Paid will author 10 collection letters monthly, review three contracts of up to 15 pages each monthly, and provide 60 hours of trial defense services yearly, among other services.

To Allan Feitl, owner of Oakworks Furniture in Ross Park Mall, using Pre-Paid meant he could drop his lawyer.

“I was apprehensive at first,” he said. “But what we are basically getting is a lot more use of an attorney for a much lower price.”

Entrepreneur of the Year, Managed Services, 2001

In 1992, Karl Schieneman earned MBA and JD degrees from Carnegie Mellon University and the University of Pittsburgh School of Law; graduating cum allude and Law Review. A tight legal market led to his first job with the Big Five accounting firm PriceWaterhouse. Wanting to practice law, he gambled on his own skills and accepted a time-limited position in 1994 as a contract attorney with the firm of Marcus & Shapira. Karl’s extraordinary capacity for productive work (he was the top-billing associate at the firm) earned him a permanent position. With his personal experience as his inspiration, Karl used his entrepreneurial instincts to recognize an untapped market opportunity. He locate two partners and they formed Legal Network in 1995 to provide contract attorneys to the Pittsburgh legal community. In 1998, he gambled on himself again, leaving his secure position to shepherd Legal Network full time, stabilizing management and devoting his energies to increasing the contract attorney market and Legal Network’s share. Karl has taken the long view, steering clear of short-term gains for the company that would hurt the overall market in the long term, and he has developed a well-earned reputation as a fair player in an often-cutthroat business.

In 2000, Legal Network again doubled in size, continuing its track record of strong growth. Karl has maintained a high profile and promoted the business concept at every opportunity. During 2000 Karl has: (1) made presentations to the Pennsylvania Bar Association, Allegheny County Bar Association and co-presented with national legal consultants Altman Weil on law firm trends; (2) authored relevant articles for the Pennsylvania Bar News and Lawyers Journal; (3) garnered national attention as the first in the country to survey corporations and law firm associates and partners on skyrocketing associate salaries; and (4) been featured in a front page story in the Pittsburgh Business Times analyzing increasing lawyer salaries. In 2000, Legal Network became the only attorney placement agency to receive the endorsement of the Allegheny Bar Association.

Legal Network’s primary business is to quickly locate and supply appropriately qualified attorneys and legal support staff for short- and long-term placements to the region’s law firms and corporations. The company has started with one staff person and now has four. With a democratic, flat hierarchy, the business cross-trains staffers to allow for optimum response to peak demand in a fast-paced environment. As the company has generated a larger overall market through advertising, articles, direct mail and an internal e-mail network linking 680 of its 2000 attorneys, its product lines have expanded, personnel has been added and responsibilities refocused.

Legal Network’s mission statement focuses on ethical conduct and fair treatment of Legal Network’s employees, clients and shareholders.

Billing Clients For A Contract Attorney’s Time

Contract Attorney use has been estimated in early 1998 to be a $500 Million industry growing 30% annually. “More Law Firms Hiring From the Temporary Pool”, NY Times, Feb. 24, 1998. This growth was corroborated locally by a recent survey of Pennsylvania law firms showing 77% of Pennsylvania’s law firms are using contract attorneys and their numbers are growing. “Managing Partner Survey”, PaLaw 1997. Based on these statistics, if you are an attorney or client of law firms, you have probably already encountered the billing or payment issue surrounding the use of contract attorneys. In addition, if you are a client, you might not even be aware that you have used contract attorneys if the law firm has not told you. Is nondisclosure of contract attorney use legal or appropriate? This article will attempt to answer these two issues.

The majority of guidance governing the use of contract attorneys is found in the American Bar Association’s (“ABA”) Formal Opinions which support law firms profiting from their use of contract attorneys even without client disclosure. As this article will explain, there are also business reasons why this is the correct decision even though it might initially come as a surprise to some attorneys and clients.

ABA Formal Opinion 88-356 (the “ABA Opinion”) provides general guidance on contract attorney use. It advises that law firms need not disclose the use of contract attorneys to the client “where the temporary lawyer is working under the direct supervision of a lawyer associated with the firm”. ABA Opinion, Page 10. The ABA Opinion goes on to add that “the fee paid by the client to the firm ordinarily would include the total paid the [contract] lawyer and the agency, and also may include charges for overhead and profit.” Therefore, it is permissible under the ABA Opinion for clients to pay a law firm for a contract attorney’s services without being informed that a contract attorney is being used. Further support for this position is gained from ABA Formal Opinion 93-379, Billing for Professional Fees, Disbursements and Other Expenses Pgs 9-10, which states:

In the absence of an agreement to the contrary, it is impermissible for a lawyer to create an additional source of profit for the law firm beyond that which is contained in the provision of professional services themselves. The lawyer’s stock in trade is the sale of legal services, not photocopying paper, tuna fish sandwiches, computer time or messenger services.

By implication, the use of contract attorneys is providing legal services, and therefore it is appropriate for a law firm to profit from their use.

Allowing a law firm to fully profit from the use of a contract attorney also draws support from a California appellate court in a 1995 case of first impression. Shaffer v. Superior Court, 39 Cal. Rptr. 506 (1995). In this case, the law firm of Gibson, Dunn & Crutcher was sued for legal malpractice for inter alia unconscionable legal fees. The plaintiff sought to determine the rate paid to a contract attorney who had worked in spare offices and the firm’s library and had billed the plaintiff for1800 hours at rates ranging from $215 to $250 an hour. The California Court of Appeals held the profit margin realized by Gibson, Dunn & Crutcher was undiscoverable and would open a “veritable pandora’s box of questions and problems” if it was. Id. at 512-13. The court held the appropriate test is to look to whether the fees paid were worth what the defendant paid as measured in the legal marketplace. Id. at 513.

Even with the permissibility for law firms to make a profit using contract attorneys, does this make sense in all instances? The answer is clearly no. In many instances the client should be informed and the law firm would benefit from increased good will by sharing cost savings to the client. As the Shaffer case illustrates, an uninformed client might be upset if they find out contract attorneys were used and they were billed at the regular associate’s rate. However, in other instances, a law firm unable to bill a contract attorney profitably might elect not to use a contract attorney and inefficiently staff the project with available (or unavailable) internal resources. So what are the solutions?

In major litigation, it often makes sense to bill the client the costs of the use of contract attorneys as a disbursement. Law firms will still profit from the supervision of contract attorneys, and the large fees that occur in complex litigation. However, the opportunity to pass savings to a client which generally reach $100 an hour/$4,000 a week can create substantial good will. In a six-month project, one contract attorney provided at cost will save a client on average over a hundred thousand dollars and teams of attorneys can create hundreds of thousands of dollars in savings. Furthermore, this type of manual intensive work is generally not well received by associates at law firms who often attempt to seek out more interesting projects to work on. This can make staffing the project with a law firm’s attorneys a complicated calculation of how many pieces of several associates available time, which is constantly changing, will it take to complete the project? Therefore, the law firm and client both benefit by having experienced attorneys completely focussed on completing the document review task within set deadlines.

However, some projects require law firms to encounter overhead costs such as secretarial, office space, supplies and additional malpractice insurance expense from using contract attorneys. Law firms should be aware of these additional hidden costs and be entitled to recover them. Therefore in many cases some sort of cost plus an overhead mark-up is preferable for the law firm as opposed to simply passing the full cost through to the client.

Contract attorneys are also used for more specialized projects to fill in for maternity leaves, disabilities, sudden upsurges in workload, or to add a specialized skill to a project which would ordinarily require a law firm’s attorney to get up to speed in. In these situations, not allowing the law firm to fully profit from using a contract attorney creates the incentive to make do with the firm’s current resources. This can slow down the speed in which work is handled and ultimately reduce the quality of the work product. Both of these results are clearly not in a client’s best interest.

As a band aid solution, the law firm could attempt to hire a full-time attorney for a short term need. However, when the peak period ends, there are now extra attorneys at the firm trying to find projects to bill their time on. This can have bad consequences for the firm, clients and the individual attorneys.

Allowing law firms to staff up with appropriately skilled contract attorneys and make a profit, enables law firms to efficiently staff for peak periods or specialized projects with attorneys of appropriate skill and with available time to competently handle a project. Ultimately this is in both a client’s and law firm’s best interest.

This article has highlighted the broad discretion afforded to law firms in determining how to bill their clients for the use of contract attorneys. However, despite this legal discretion, law firms and their clients should realize there is no one correct answer to this business issue. There is nothing wrong with law firms using contract attorneys and clients do benefit from their services even when they do not realize cost savings. However, in some instances it might make sense for the law firm to pass on some of the cost savings to the client.

By Karl Schieneman, Esq., Managing Director and shareholder ofLegal Network Ltd., a Pittsburgh based provider of contract attorneys and paralegals.