Legal Outsourcing to Offshore Jurisdictions - Part III
The outsourcing/offshoring trend in the legal profession is still relatively new, and I have not come across any comprehensive study as to its effect. However, concerns have been raised, as I noted yesterday.
The Law Society of England and Wales has raised concerns about secrecy and client confidentiality. What happens if important client documents and legal work product goes missing? One would think that even if a law firm outsources work, liability shall still remain with it.
In August 2006, likely in response to the growing number of American law firms outsourcing work, the Committee on Professional and Judicial Ethics of the Bar Association of New York City released its formal opinion on the outsourcing of substantive legal support work overseas. Such work includes legal research, drafting, due diligence reports, patent and trademark work, review of transactional and litigation documents, and drafting contracts, pleadings, or memoranda of law.
For the purposes of the formal opinion, a non-lawyer refers to a foreign lawyer not licensed to practice in New York (or other U.S. jurisdiction) or a lay person.
The formal opinion essentially states that a New York lawyer may ethically outsource legal support services overseas to a non-lawyer, if five conditions are met. I will discuss the first two conditions today.
The first condition is essentially about proper delegation. The New York lawyer must rigorously supervise the non-lawyer and ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client. Lawyers often delegate tasks to clerks and other support staff, law students and junior lawyers. However, the lawyer must always supervise the delegated work, review the work for accuracy and completeness, and bear complete professional responsibility for it.
The second condition relates to preserving confidentiality. The New York lawyer must preserve a client’s confidences and secrets when outsourcing. The NYC Bar Association concludes that a lawyer should secure a client’s informed consent in advance, if the outsourced assignment will require disclosure of client confidences or secrets.
More on the conditions tomorrow. Have a great day!
Bianca La Neve
The Law Society of England and Wales has raised concerns about secrecy and client confidentiality. What happens if important client documents and legal work product goes missing? One would think that even if a law firm outsources work, liability shall still remain with it.
In August 2006, likely in response to the growing number of American law firms outsourcing work, the Committee on Professional and Judicial Ethics of the Bar Association of New York City released its formal opinion on the outsourcing of substantive legal support work overseas. Such work includes legal research, drafting, due diligence reports, patent and trademark work, review of transactional and litigation documents, and drafting contracts, pleadings, or memoranda of law.
For the purposes of the formal opinion, a non-lawyer refers to a foreign lawyer not licensed to practice in New York (or other U.S. jurisdiction) or a lay person.
The formal opinion essentially states that a New York lawyer may ethically outsource legal support services overseas to a non-lawyer, if five conditions are met. I will discuss the first two conditions today.
The first condition is essentially about proper delegation. The New York lawyer must rigorously supervise the non-lawyer and ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client. Lawyers often delegate tasks to clerks and other support staff, law students and junior lawyers. However, the lawyer must always supervise the delegated work, review the work for accuracy and completeness, and bear complete professional responsibility for it.
The second condition relates to preserving confidentiality. The New York lawyer must preserve a client’s confidences and secrets when outsourcing. The NYC Bar Association concludes that a lawyer should secure a client’s informed consent in advance, if the outsourced assignment will require disclosure of client confidences or secrets.
More on the conditions tomorrow. Have a great day!
Bianca La Neve
"ONE WAY OF MAINTAINING SECRECY AND CONFIDENTIALITY OF A CLIENT IS BY THROUGHLY CHECKING THE ANTECEDENCY OF THE COMPANY TO WHICH THE WORK IS DELEGATED. IN INDIA SOME FIRMS HAVE REALLY GOOD BACKGROUND WHICH CAN BE TRUSTED WITH ANYTHING. SUCH FIRMS MUST BE IDENTIFIED."
Hi Bianca,
I run a blog dedicated to Legal Process Outsourcing at http://legallyours.blogspot.com. Hope you find this useful.
Please feel free to ask if you have any questions about LPO.
Best regards,
Rahul