Citing legal outsourcing as a “salutary trend in a global economy,” the American Bar Association (ABA) has given its blessing to lawyers who outsource their legal work outside of the U.S., as long as they adhere to ethics rules. This latest trend in the legal profession has proven quite cost-effective in reducing client costs. However, there are significant attorney ethical responsibilities that accompany outsourcing, so the ABA’s Standing Committee on Ethics and Professional Responsibility has issued Ethics Opinion 08-451, which specifies the ethical obligations of lawyers and law firms who opt to outsource legal work.
The ABA reports that many lawyers in the U.S. are already outsourcing their work, using lawyers or non-lawyers as independent contractors. They are “hiring them directly or through intermediaries, on a temporary or ongoing basis.” But the ABA warns that, like all lawyers, “outsourcing lawyers are subject to an obligation to render competent legal services, and lawyers supervising other lawyers or non-lawyers in performing legal services are responsible for assuring that the individuals they supervise comply with ethics rules governing lawyers.”
“This is an important opinion,” declares Paul Raschke, Immediate Past Chair of MSBA’s Ethics Committee, “particularly with regard to its emphasis on a lawyer’s supervisory responsibilities when outsourcing work to ensure the preservation of client confidences. While much of the opinion recites settled principles, the discussion regarding the need for ‘informed consent is new,’” he advises, “and Maryland lawyers need to pay close attention to this requirement.”
Outsourcing reduces client costs. The Opinion allows outsourcing lawyers to pass along fees to the client, including a reasonable allocation of associated overhead expenses, but “no markup is permitted.” This fee arrangement benefits smaller law firms in particular because it enables them to provide the intensive labor associated with litigation without the cost of additional staff.
Outsourcing lawyers face numerous challenges in assuring competence and overseeing the work of others, notes the ABA, especially when they are separated “by thousands of miles and substantial time differences.” Thus, it recommends that “outsourcing lawyers conduct reference checks and background investigations of lawyer or non-lawyer service providers and any intermediaries.”
The Opinion goes on to suggest other measures to outsourcing lawyers, such as assessing educational background, security systems and even the premises of the service provider. It also delves into the acquisition of client consent before engaging outside assistance and informed consent. The ABA strongly recommends written confidentiality agreements to avert the risk of a service provider breaching confidentiality.
Finally, the ABA Ethics Committee “acknowledges it lacks authority to express an opinion about whether any particular service provider is engaging in unauthorized practice of law, but cautions that if the service provider is found to be not authorized to practice law, and the outsourcing lawyer facilitated that violation, the outsourcing lawyer will have violated ethical rules.”
“The practice of outsourcing indeed gives rise to a number of interesting ethical issues,” states Courtland “Skip” K. Townsend, Chair of MSBA’s Ethics Committee, “and our Committee looks forward to reviewing and discussing the Opinion and related issues.” The full ABA Ethics Opinion may be found at http://www.abanet.org/cpr/pubs/ethicopinions.html.