Attorney Fee Awards:

Billing for an outside lawyer's legal research

After you read this page, you probably will always bill the services of an outside legal research attorney, with a surcharge, as legal services (and not as an expense).

If you want to save time and money for the client, by using an outside legal research service, you may have decided to outsource heavy legal research projects. (It is cheaper to do so, and the product is often superior when full time researchers or brief writers do the job for you.) Even with a surcharge by you to make a profit on the outsourcing, outsourcing substantial legal research projects may often be the most cost-effective method to benefit the client.

But can you charge the client how much the research is worth, rather than how much you paid the outside researcher for doing it? John Stone, a senior attorney at the National Legal Research Group. NLRG, in his The Ethics of Attorneys - Adding a Surcharge to their Fees for the Use of Outside Attorneys, says the answer depends on whether those outside attorney services are billed as an expense or a disbursement, or as legal services.

A PDF copy of the whitepaper is here, and our nutshell summary follows below.

The Ethics of Attorneys - Adding a Surcharge to their Fees for the Use of Outside Attorneys, has the following summaries to answer the question: "can you charge the client how much the research is worth, rather than how much you paid the outside researcher for doing it?"

• "The prevailing majority view, followed by the American Bar Association ("ABA"), is that whether a lawyer using the services of an outside attorney may bill the client for those services more than the lawyer paid to the outside attorney depends on whether those services are billed as an expense or a disbursement, or as legal services. . . . "
• "If the services of an outside attorney are billed as an expense or a disbursement, no surcharge (sometimes also called a "premium" or "markup") is permitted, unless the client has agreed to such a surcharge."
• On the other hand, if (1) you as the hiring attorney have either (A) supervised the outside attorney or (B) adopted the work of the outside attorney as your own, and (2) the services of the outside attorney are billed as legal services -- not as an expense, a surcharge may be added to the cost of such services so long as the fee as a whole is reasonable.

The legal theory is that you as an attorney have added value by your input in supervising and reviewing the work of the outside attorney, much as you could bill your own time for reviewing the work of a junior attorney inside your own firm.

Stone's whitepaper says the following about disclosure:

• "It is also the prevailing view, followed by the ABA, that when a surcharge is used, the hiring attorney is not ethically obliged to disclose to the client that a surcharge has been used if the hiring attorney has either supervised the outside attorney or adopted the work of the outside attorney as his/her own. This is so although an attorney has a more general obligation to disclose to a client the basis or rate for a legal fee.
• "Under a distinctly minority view, any surcharge should be disclosed to the client in all cases."