In today’s legal marketplace, the use of contract attorneys is commonplace. Firms may prefer not to commit to a full-time hire until they believe the increase in work is of a more permanent nature. And some lawyers prefer working on a contract or temporary basis because they want more flexibility. Regardless of the reasons a firm and an attorney enter into a contract relationship, both must be careful about any conflicts of interest that may exist.
Georgia has addressed the issue of contract attorneys and conflicts in Formal Advisory Opinion 05-9. FAO 05-9 recognizes that all attorneys (including contract attorneys) are obligated to avoid conflicts of interest with respect to their clients. Because a contract attorney hired to represent clients or assist in representing clients necessarily enters into an attorney/client relationship with those particular clients, the normal conflicts rules apply to a contract attorney.
Generally, a contract attorney should not represent a client “if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation without obtaining the consent of the affected clients in accordance with the consent requirement of Rule 1.7.”
Because a contract attorney is likely to have been employed by many different firms over time, the opportunity for conflicts of interest is likely greater in the context of the employment of contract attorneys. Thus, contract attorneys and their hiring firms must take “great care in both record keeping and screening for conflicts.” FAO 05-9 states that the potential for conflict is “so high” that firms that employ contract attorneys “would be acting unethically if they did not carefully evaluate each proposed employment for actual conflicting interests and potentially conflicting interests.”
To avoid these potential conflicts, contract attorneys should keep a written record of all clients and matters worked on in order to evaluate possible conflicts of interest should they arise. Likewise, firms using contract attorneys should maintain a complete and accurate record of all matters on which each specific contract attorney works.
Imputed or vicarious disqualification is a particularly difficult issue in the context of contract attorneys. Because contract attorneys are on par with associates of a hiring firm, the normal rules governing imputed disqualification apply. So if any attorney is individually precluded from undertaking representation, then a firm with whom the attorney is associated is also precluded from undertaking that representation.