Ethical Issues in Legal Outsourcing

For the purposes of this article is to evaluate the American Bar Association ("ABA") Standing Committee on Ethics and Professional Responsibility Formal Opinion 08-451: 451 Obligations When Outsourcing lawyers legal and nonlegal support services, published August 5, 2008 , and the one that tells us about the global outsourcing of legal process from the perspective of an American lawyer. Formal Opinion 08-451 touches fundamental ethical questions of lawyer or law firm has when outsourcing legal work and not legal. The opinion serves as a guideline for ethical practice, and ethical commitment and management of a legal process outsourcing (LPO) provider. The opinion refers to the Model Rules of Professional Conduct, as amended by the ABA House of Delegates in February 2008.

A lawyer is allowed to outsource the legal work and non-legal, even if he / she must be ethically responsible for their work. Outsourcing is generally accepted even if the lawyer retained in a matter is still responsible for his / her client for any work in support of his / her representation of the client. The opinion states that the rule of the model 5.1 and 5.3 apply to outsourcing relationships, which means that lawyers act in a supervisory capacity must take reasonable steps to ensure that ethical rules are respected by lawyers and subordinate / or non-lawyer assistants. Lawyers are responsible for monitoring violations of the rules of professional conduct by employees if there is knowledge or ratification of misconduct, or if there is knowledge of the misconduct, when he could still be avoided or mitigated, but no corrective actions taken. Supervising or managing lawyers will of course always responsible for violations of ethical duties if order the wrong conduct in the first place.

In relevant part the Model Rule 1.6, the lawyer must inform the supervising outsourcing to his / her client, if the activities involve the disclosure of confidential information, and obtain informed consent of his / her client, or may not have to get informed consent from the client, if disclosure of confidential information is impliedly authorized in order to carry out the representation. It seems that the most safe and ethical to outsource the job would be to obtain informed consent of the customer. Although there are issues that concern: if the work to be performed is confidential, and if there is implied permission to relate some information in the normal course of representation, it is best to inform, educate, and finally get the client written informed consent, when the use of an LPO provider that will be the hiring of foreign workers for the benefit of the customer. Confidentiality agreements must be in place with your supplier LPO and conflict of interest should be checked prior to a commitment on a specific issue.

Under Rule 1.5 of the model, the lawyer must not charge his / her client an unreasonable cost or the cost unreasonable for the work outsourced. This means that the cost of outsourcing can be passed to the customer, but can not be a reasonable cost. It 'possible that the lawyer or law firm may charge a premium for working in outsourcing, but the charge should be reasonable. Eventually, this extra cost would be closely related to the management and supervision of LPO relationship, project management fees if you want. If the lawyer or law firm passes the cost to their client as a disbursement pure, no mark-up is allowed.

E 'key, and it should be obvious to any lawyer practicing, that under the model rule 5.5, a lawyer must avoid assisting others in the unauthorized practice of law. The opinion goes on to note that most lawyers outsource "other lawyers or nonlawyers as independent contractors, either directly or through intermediaries, either temporarily or continuously, to provide various support services, legal and nonlegal," and speaks of the various types of work outsourced, including "the commitment of a group of foreign lawyers to draft patent applications, or to develop strategies and prepare legal documents for litigation movement in the United States." The opinion implicitly states that outsourcing to an equivalent job in LPO for the complexity of preparing patent applications, the development of legal strategies, or preparation of movement documents for use in the United States, lawyers are not helping others in their non- authorized by law. However, to assist others in the unauthorized practice of law is not a clearly defined action, which means that a lawyer should be very careful in deciding what tasks to delegate or outsource and must supervise the work properly. The appropriate level of control depends on several factors including the complexity of the work to be performed, the skills of workers, worker training, and other factors.

The opinion recognizes the existence of a global economy and the fact that lawyers can save on costs, and can sometimes pass this savings on the client when the work is done in outsourcing at a rate much lower than it would have been conducted at national or regional level. The opinion, in reference to small law firms managing large discovery-intensive litigation, said:

Outsourcing, however, allow the undertaking to represent a client in a matter as efficiently and effectively, engaging lawyers to conduct further review and analyze documents or depositions, together with a temporary staff of legal assistants to provide infrastructure support.

The most important factor when a lawyer provides representation is that he / she makes competent representation to their clients with "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The opinion goes on to say that some lawyers can do all the work himself / herself, some things may delegate to a staff, or some may outsource certain types of work. The lawyers may be equally competent in their representation of a client even if they differ in that they use legal support services, and representation for their clients. The two main challenges in this regard for a lawyer who outsources are 1) are delegated tasks that individuals are able to play, and 2) that can control the project adequately and appropriately. One of the main factors for obtaining services LPO LPO is that staff has sufficient expertise and appropriate training to provide the services in question and that the supervising attorney should provide a reasonable amount of supervision on the project.

What constitutes reasonable control will depend on several factors. A lawyer or law of outsourcing work should consider doing reference checks and background checks on the LPO. Leading lawyers in a scenario must be interviewed direct outsourcing, LPO, and should be questioned about hiring practices with regard to the quality and character of their employees. The greater the complexity and sensitivity of the work to be performed, the most comprehensive survey of LPO safety and professionalism should be, which may include visiting foreign operations in some cases. When engaging lawyers educated foreigners, foreign legal training system must be evaluated and compared the American legal education, and foreign policy of the system of regulation of the profession should be evaluated for fundamental ethical principles. This comparative assessment will not reject or accept a foreign country for outsourcing services, but aims to provide a lawyer with the idea of ​​how much control should apply to work done by a particular group of foreign workers.

The opinion also raises the question of how likely the client information is confidential seizure in judicial or administrative proceedings in a foreign country. At this point it seems that confidential or sensitive information must be stored inside the United States with very limited access by workers who are abroad. It does not seem practical to rely on any foreign judicial system in relation to the protection of confidential information, so take that out of the equation, sensitive information must be stored and accessed within and from the United States. Any LPO that has unlimited access to this information overseas will be a huge headache for the legal professionals in the United States from a practical point of view. For this same reason, it seems a very delicate situation when trying to deal with a completely foreign-based LPO, so delicate that it's probably not worth the headaches and administrative ethics.

The ABA opinion provides a reference guide for outsourcing and the important ethical considerations involved. Hard-line rules of engagement are not provided, meaning that an attorney or law firm commit an LPO provider should be careful and reasonable in its dealings and should make the report is acceptable with some precautions, and monitoring contracts. Above all, "the laws, rules of court, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling." Before taking an LPO provider, be sure to check out the local rules. Currently, there seems to be all the rules state that the activity bar in outsourcing involving foreign workers, but always check the underlying ethical duties and obligations in your state ....