The secondment of lawyers within a law firm, and between a law firm and a client organisation, is common in many jurisdictions today. So common, in fact, that many clients expect their law firms to second lawyers to them regularly, often on a cost-free basis. This column examines secondments and the legal issues that they raise, particularly in the areas of liability, confidentiality and conflicts of interest.

First, let’s consider the derivation of the term “secondment” in English. The English term “secondment” was first used in the 19th century to describe the situation where a military officer was transferred on a temporary basis from the officer’s normal position to another position within the army. The term itself is derived from the French expression en second, which means “in the second rank”. Subsequently, the term came to be applied to a broad range of situations in which an employee was transferred on a temporary basis to another position, either within the same organisation or in a different organisation. Thus, the term can describe both “internal” secondments and “external” secondments.

By contrast, the Chinese word that is used for this purpose, diaopai (调派), means generally “to send” or “to assign” a person to a specific position or job, and is not limited to an assignment that is on a temporary basis.

There are various benefits that a secondment offers. First, if it is an internal secondment within a law firm, it provides the seconded lawyer with an opportunity to experience practice in another area, or in another jurisdiction. Second, if it is an external secondment to a client organisation, it provides an opportunity for the seconded lawyer to gain experience in a commercial environment, even though it is usually in a legal role in the in-house legal department. It also allows both the seconded lawyer and the seconding law firm to gain a better understanding of the client organisation, and to strengthen relationships at both the individual and institutional levels. And from the client organisation’s perspective, it provides an opportunity to obtain additional resources and expertise.

Where internal secondments are arranged, there is not much paperwork that needs to be completed as the arrangement takes place within the law firm. However, in situations involving an external secondment to a client organisation, the law firm and the client organisation normally enter into a detailed secondment agreement, which sets out the relevant provisions concerning the secondment. These provisions usually include the following:

  • The duration of the secondment. Most secondments last for between six months and one year, although short-term secondments of less than six months are becoming increasingly common as clients request temporary additional resources for specific projects;
  • The employment status of the seconded lawyer. The secondment agreement usually provides that during the secondment, the seconded lawyer will continue to be an employee of the seconding law firm, which will continue to be responsible for the payment of salary and other employment benefits. In most cases, a client organisation would not want to employ the seconded lawyer as this would impose various duties and responsibilities on it;
  • The cost of the secondment. If the client organisation pays for the secondment, this will usually take the form of a fee payable to the law firm to cover the employment cost of the lawyer, plus a margin on top of that;
  • The scope of work. As noted above, a seconded lawyer is usually seconded to the legal department of the client organisation. The secondment agreement usually provides that the seconded lawyer will be expected to give advice and undertake work within their specific areas of expertise, and that if there is a need for additional expertise that cannot be provided by the seconded lawyer, the client organisation will instruct the law firm to provide the additional expertise at the agreed charge-out rates;
  • Responsibility for supervision. In common law jurisdictions, the client organisation normally takes on the responsibility for supervision as the law firm is not able to supervise the day-to-day work of the seconded lawyer. In civil law jurisdictions, on the other hand, the seconded lawyer needs to operate as an independent professional that is not under the supervision or control of the client (see the discussion below in relation to liability);
  • Professional indemnity insurance. It is common for seconded lawyers to continue to be covered by the law firm’s professional indemnity insurance policy while they are on secondment to the client organisation;
  • Non-solicitation. The client organisation usually agrees that it will not offer employment to the seconded lawyer during the secondment, or for a period of time following the end of the secondment, without the prior consent of the law firm; and
  • Other provisions. These include provisions concerning the payment of travel and other expenses by the client organisation and permission for the seconded lawyer to take holiday leave during the secondment, and also to participate in training and other activities at the law firm.

There are three issues that are important when a lawyer is seconded to a client organisation. The discussion below considers how these issues are treated in different jurisdictions.

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葛安德 Andrew Godwin
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.