Outsourcing is a subject, which stands on the pinnacle of the global chart today.
The trend of outsourcing legal work to law firms within the US has now been extended to other countries and India is a prime destination.
India is a country with a wealth of personnel with deep experience and high qualifications.
These two factors combine to make the country a sought after destination for the outsourcing of legal services.
However, outsourcing legal work can generate a number of concerns. There has been a lot of ongoing discussion on the best approaches to deal with these issues when they come up.
One of the major ones has to do with matching the ethical standards that rule the profession in different countries. In this case, matching the standards of the legal profession in the United States with the standards of the country in which the work is outsourced, such as India.
The New York Bar Association, Los Angeles County Bar Association and California Bar Association have taken a progressive step with respect to outsourcing of legal services.
They have set out a series of parameters that should be met to ensure ethical outsourcing of legal services to foreign attorneys:
– The protection of the confidences and secrets of clients
– Avoiding conflicts of interest
– The foreign attorney or non-lawyer should be supervised to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client
– Clients should be billed appropriately for outsourced work.
– When necessary, client’s consent should be obtained for outsourcing their work.
It is incumbent upon the attorney to ensure that client confidences and secrets are protected both by the attorney and by the outsourcing vendor throughout and subsequent to the attorney’s contract relationship with the outsourcing vendor.
The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 1994-138 states that “it is the duty of an attorney [to]….maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client”.
Conflicts of interest
It is entirely possible that outsourcing vendors are working on multiple matters at the same time. One or more of these matters could, theoretically, conflict with the needs of the client.
It is incumbent upon the outsourcing attorney to confirm if the outsourcing vendor has rendered any legal support services for any parties adverse to the attorney’s client.
Duty to represent
The attorney outsourcing his or her work needs to supervise the work done by offshore lawyers meticulously.
The attorney must review all briefs or any other work provided by the outsourcing vendor and independently verify its accuracy and relevance before submitting it to a court.
It was observed in Crane v. State Bar (1981) 30 Cal.3d 117, 123 that
“[a]n attorney is responsible for the work product of his employees which is performed pursuant to his direction and authority”.
The American Bar Association Formal Op. 93-379 said that the lawyer may not charge a client more than his or her disbursements for services provided, plus any reasonable overhead cost related to managing the third party relationship.
Such reasonable overhead, could include fees associated with the time spent by the firm in delegating the work to the outsourcing vendor and for supervising and reviewing the work product.
The attorney or the law firm outsourcing the work also has a full ethical obligation to make disclosure about the outsourcing vendor’s participation and to seek the client’s consent for such participation.
The American Bar Association adopts a liberal approach towards the issue of disclosure when outsourcing legal services.
Disclosure must be made only in cases where highly significant tasks are outsourced which could result in the disclosure of client’s secrets. These parameters conclude that a lawyer may ethically outsource legal support services overseas to a non-lawyer.
Jasmine Bajaj is a lawyer with Clairvolex Knowledge Processes Pvt Ltd.
Clairvolex Knowledge Processes Pvt Ltd
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