| UK attorney and Director of Business Development at | | | | now. A client’s “reasonable expectations” |
| LawScribe, Inc. | | | | are not static, immovable, and unchanging over time. |
| I read with interest the recent San Diego Bar | | | | The legal industry now operates in a global |
| Association Opinion on outsourcing and offshoring. | | | | marketplace and clients are evermore sophisticated |
| Although it hasn’t attracted quite the press | | | | and accepting of the concept of globalization. A |
| attention, or comment within the various legal | | | | client’s reasonable expectations today will be |
| offshoring and outsourcing blogs as did the 2006 New | | | | vastly different tomorrow. Within a very short period |
| York State Bar Opinion, it clearly reinforces the same | | | | of time I believe that this argument will become |
| conclusion reached in the New York Opinion: | | | | redundant. Soon, a client’s only “reasonable |
| outsourcing legal services is permitted if certain | | | | expectation” will be that the quality and |
| safeguards are ensured. | | | | confidentiality of the work-product is maintained by |
| I have no intention of simply re-hashing the full text of | | | | whoever completes it, wherever he or she may be. In |
| the Opinion here in my blog – but refer you to the | | | | fact, I would go as far to say that we are not far from |
| following link for the Opinion in all its glory. | | | | the day when a client’s reasonable expectations |
| The Opinion considered a hypothetical case where a | | | | will be that work-product should be outsourced to the |
| California attorney was instructed to defend an | | | | most efficient and cost-effective provider! |
| intellectual property dispute. The attorney had limited | | | | The Opinion went on to consider, from a practical |
| experience in intellectual property litigation and | | | | standpoint, the checks and balances that an attorney |
| contracted with an offshore legal services company in | | | | should bring into play before contracting with an |
| India to provide legal research, correspondence, and | | | | offshore legal service provider. These points make for |
| other services in connection with the case. The fees | | | | some informative reading, although they are of course |
| charged by the legal offshore service company were | | | | really only basic common sense. |
| significantly lower than American lawyers would have | | | | The general duty of competence requires attorneys to |
| charged for the same work. None of the Indian | | | | evaluate the quality and reliability of the company |
| attorneys were licensed to practice in any US | | | | providing offshore/outsourced legal services. The |
| jurisdiction. The California attorney reviewed the work | | | | extent of that evaluation depends on the facts of |
| he received from the offshore company, signed all | | | | each case. This is where the Opinion provides a |
| court submissions, and performed all communications | | | | practical insight into what attorneys should be looking |
| with opposing counsel. | | | | at before blindly offshoring their legal work. The |
| The question was raised: “Does an attorney assist | | | | following is a non-exhaustive checklist you should |
| in the unauthorized practice of law, in violation of | | | | follow to ensure compliance with the duty of |
| California Rule of Professional Conduct 1-300, when he | | | | competence. |
| or she uses the services of an outsourcing firm to | | | | (a) Due diligence: Investigate pertinent background |
| perform research and drafting services on behalf of a | | | | information about the offshore legal service provider |
| client?” | | | | company; |
| The Opinion then goes on to provide an overkill of | | | | (b) Be aware of the qualifications of the individuals |
| analysis as to whether the work performed by the | | | | who will perform the work; |
| offshore legal service provider came within the | | | | (c) Obtain references of the company or individuals |
| definition of “the unauthorized practice of law”. I | | | | assigned to perform the work; |
| see no reason to delve into this any further other than | | | | (d) Always interview the company in advance; |
| to say that the unanimous conclusion was, “NO, the | | | | (e) Request a sample of the work product that is |
| service provided by the offshore provider did not fall | | | | comparable to your project; |
| within the ‘practice of law’ as defined by the | | | | (f) Communicate with the non-lawyer during the |
| Rules of Professional Conduct”. If the offshore | | | | assignment to ensure that the non-lawyer understands |
| company had been providing legal services directly to | | | | the assignment and is executing it to your |
| the client then it would have been engaged in the | | | | expectations; |
| unauthorized practice of law; but this was not the issue | | | | (g) Review ethical standards with the individuals who |
| presented by this particular example. Here, the | | | | will perform the work and incorporate the ethical |
| California attorney consistently exercised his own | | | | standards into the terms of the contract with the |
| professional judgment and never allowed the | | | | company. |
| work-product to reach the client without passing | | | | An additional duty of an attorney who outsources |
| through his own review. | | | | work is to “maintain inviolate the confidence, and at |
| It is clear from the New York and San Diego Opinions | | | | every peril to himself or herself, to preserve the |
| that an attorney does not aid in the unauthorized | | | | secrets, of his or her client.” See Business & |
| practice of law if he retains both supervisory control | | | | Professions Code section 6068(e). This is especially |
| and full responsibility for tasks that constitute the | | | | important as the legal and ethical standards applicable |
| “practice of law”. | | | | to foreign lawyers may differ from those applicable to |
| From a practical point of view, a much more valid | | | | domestic lawyers, particularly with respect to client |
| issue for debate is whether an attorney is ethically | | | | confidentiality, the attorney-client privilege, and conflicts |
| obligated to inform his or her client of an arrangement | | | | of interests. |
| with an outsourcing company. The Opinion indicates | | | | The Opinion comments on one unfortunate example |
| that the duty to inform the client is determined by the | | | | of a breach of confidentiality involving an outsourced |
| client's reasonable expectation as to who will perform | | | | project subcontracted to India. There, the |
| those services. | | | | subcontractor threatened to post confidential patient |
| If the work to be performed by the outside service is | | | | records on the Internet unless the UC San Francisco |
| within the client's "reasonable expectation under the | | | | Medical Center retrieved money owed to the |
| circumstances" that it will be performed by the | | | | subcontractor from a middleman. (David Lazarus, |
| attorney, the client must be informed when the service | | | | Looking Offshore: Outsourced UCSF notes highlight |
| is "outsourced". Conversely, if the work is not such that | | | | privacy risk. How one offshore worker sent tremor |
| it is within the client's reasonable expectation that it will | | | | through medical system, S.F. Chron., March 28, 2004.) |
| be performed by the attorney, the attorney is not | | | | Attorneys need to carry out their own research into |
| necessarily required to inform the client of the | | | | the confidentiality and security safeguards that the |
| arrangement. | | | | legal services offshoring company they are |
| Unfortunately this seems to be an overly simplistic and | | | | contemplating contracting with, has in place. See here |
| static view of the attorney/client relationship and the | | | | for details on how LawScribe deals with these crucial |
| ever changing world of legal support services. I concur | | | | concerns. |
| that the drafting of motions and pleadings on a | | | | The Opinion concludes that although permitted |
| particular case comes within the current definition of | | | | outsourcing in no way dilutes the attorney’s |
| what a client would have “reasonable | | | | professional responsibilities to his or her client. California |
| expectations” would be performed by their | | | | attorneys may satisfy their obligations to their clients in |
| instructed attorney. However, in the technologically | | | | contracting with offshore legal service providers, but |
| advanced world we now live in, I doubt that most | | | | only if they have sufficient knowledge to supervise the |
| clients would be surprised to learn that their | | | | outsourced work properly. It is crucial that they also |
| transcription, document coding, and other litigation | | | | make sure outsourcing does not compromise their |
| support services were being outsourced. If this is true, | | | | other duties to their clients. |
| then surely “reasonable expectation” that the | | | | The legal outsourcing phenomenon shows no signs of |
| work should be performed by the attorney becomes | | | | slowing down and I’m sure we can expect to |
| a moot point. | | | | receive more of the same from other State Bar |
| Also, the Opinion only really considers the here and the | | | | Associations over the coming months. |