New York City Bar Weighs in On Overseas Legal Outsourcing

The exponential growth of overseas legal outsourcing in recent years has benefited the legal profession in many ways, not the least of which is to level the playing field, allowing smaller firms or sole practitioners affordable access to the type of resources previously enjoyed only by large firms with the capacity to throw an army of lawyers, paralegals, and legal assistants at a given project. But the practice has also raised ethical considerations, as attorneys struggle to apply traditional rules of professional responsibility to an increasingly global legal industry.

Last summer, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics weighed in on the ethics of overseas outsourcing in a formal opinion, published online at
http://www.nycbar.org/.

Attorney Supervision is Key

Like almost every other ethics opinion from various jurisdictions that have considered the issue, the New York City Bar Association affirmed that there is nothing inherently unethical about outsourcing legal support services to overseas attorneys or laypersons. Lawyers within firms have routinely delegated tasks to clerks, secretaries, and other laypersons, and delegating research, brief writing, or similar tasks to overseas firms is analytically no different. In both cases the key is supervision over the non-lawyer.

The outsourcing attorney must, at all times, shoulder complete responsibility for the work. This entails setting the appropriate scope for the project, and vetting the non-lawyer’s work to ensure its quality. The opinion suggests that, in order to ensure proper supervision, the hiring attorney should obtain background information on the overseas firm and the non-lawyer working on the project, conduct reference checks, interview the non-lawyer in advance, and maintain communication during the project.

Client Consent May Be Necessary

The opinion also considers the thorny issue of protecting client confidences. It is often necessary to reveal confidences to the overseas lawyers in order for them to properly complete a project. But many overseas jurisdictions have less stringent rules of confidentiality. The ethical solution, according to the opinion, is for the hiring attorney to obtain the client's informed consent in advance. The client should be told which confidences will be shared, and the extent to which the rules of confidentiality in the foreign jurisdiction may offer less protection.

Like the New York State Bar Association, the New York City Bar concluded that attorneys do not need to reflexively inform clients every time work is to be outsourced overseas to a non-lawyer. However, the hiring attorney does have a duty to disclose the outsourcing when non-lawyers will play a significant role in the matter, when client confidences are to be shared, when the client expects that only the law firm and its personnel will be working on the matter, or when non-lawyers are to be billed to clients on a basis other than cost. In fact, absent a specific agreement with the client, a New York attorney should charge no more than the direct cost of the outsourcing and a reasonable allocation of direct overhead expenses from the outsourcing.

The New York City Bar opinion concluded that a lawyer may ethically outsource legal support work overseas provided the hiring attorney rigorously supervises the non-lawyers, takes measures to protect client confidences and avoid conflicts of interest, obtains client consent when necessary, and bills appropriately.