New York lawyers seeking freelance work solely from other lawyers can set up websites with their last name and the word “esquire” that don’t have to comply with attorney advertising rules, a recent state bar association opinion said.
But even if a freelancer doesn’t intend to set up a law firm, under state professional ethics rules, “the proposed [Surname] Esquire is a law firm governed by the same ethical provisions as any other law firm,” the New York State Bar Association’s Committee on Professional Ethics said on March 10.
The past decades have seen a rise in freelance, or contract attorney work, as law firms outsourced certain kinds of work such asdocument review in an effort to save money.
A New York lawyer submitted the website name question to the bar’s professional ethics committee, also asking whether it was necessary to have a separate bank account and what other ethical restrictions applied to that situation.
The use of a last name in a firm name isn’t barred by the state’s otherwise broad ban on the use of trade names the committee said, noting such surname use is “in fact customary,” as long as it’s not misleading as to who is in the firm. And even though “esquire” doesn’t legally designate someone as a lawyer, it’s accepted in the U.S. that someone using the title is identifying himself or herself as a lawyer, it said.
Although advertising rules don’t apply to this situation, the ethics rule regarding “Identification of Practice and Specialty” applies to a lawyer or law firm’s public identification even when the advertising rules do not apply, it said.
This rule permits a lawyer or law firm to “publicly identify” areas of law in which he or she practices and permits a lawyer to state that “the practice of the lawyer or law firm is limited to one or more areas of law.” But whatever the areas of law the lawyer’s practice is limited to, the lawyer should also note that the practice is limited in nature due to the contract attorney or freelance status, it said.
With regard to trust account regulations, the opinion said that contract and per diem lawyers typically work on an hourly or flat fee basis and are paid directly by the hiring lawyer or law firm for services rendered.
“To us, such payments are the functional equivalent of a distribution made to a partner or a salary paid to an associate, in-house counsel, government lawyer, and the like – that is, the money belongs solely to the lawyer, who presumably deposits the funds into a personal bank account in the lawyer’s own name without need to worry about the regulations,” it said.
However, the record-keeping requirements, including keeping records of deposits and withdrawals for seven years after the events, do apply to any bank account linked to the lawyer’s practice of law, the opinion said.
Other ethical duties that apply to freelancers include those of competence; diligence; communication; conflicts; and confidentiality, the opinion added.
The opinion is is N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1184, 3/10/20.¸