Ethics and Privileges

The threshold of attorney supervision for LPO Projects highlights the tension between law as a business and law as a profession. Giving the way to the “Law as Work Product” the ethical questions raised by outsourcing of legal work offshore are more concerned with risk management and conflict of interest rather than a “noble calling” of the “profession of law”. The Committee on Professional and Judicial Ethics of New York City Bar issued an opinion.

The Ethical Question of Outsourcing Legal Work by United States Attorneys

Various Bar Associations in United States have issued opinions addressing ethical concerns where a law firm outsources legal work on behalf of a client. It is quite evident that under the hypothetical presented, the attorneys or the law firm in the U.S. would not be aiding the unauthorized practice of law or violates its ethical duty of competence.

As per the Formal Opinion 2006-3 issued by the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics in August 2006

“A lawyer may ethically outsource legal support services overseas to a non-lawyer if the lawyer (a) rigorously supervises the non-lawyer, so as 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; (b) preserves the client’s confidences and secrets when outsourcing; (c) under the circumstances described in this Opinion, avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) under the circumstances described in this Opinion, obtains the client’s informed advance consent to outsourcing.”

An opinion with regard to ethical concerns about a law firm outsourcing legal work on behalf of a client has been issued by the San Diego County Bar Association in its Ethics Opinion 2007-1:

“The Committee concludes that outsourcing does not dilute the attorney’s professional responsibilities to his client, but may result in unique applications in the way those responsibilities are discharged. Under the hypothetical as we have framed it, the California attorneys may satisfy their obligations to their client in the manner in which they used Legalworks, but only if they have sufficient knowledge to supervise the outsourced work properly and they make sure the outsourcing does not compromise their other duties to their clients. However, they would not satisfy their obligations to their clients unless they informed the client of Legalworks' anticipated involvement at the time they decided to use the firm to the extent stated in this hypothetical.”

The similar view taken by the Los Angeles Bar Association says that

“We conclude that such arrangements may be ethically permissible, with some limitations depending on the specific terms and conditions of the arrangement, and provided that the attorney complies with several ethical requirements. Specifically, the Committee is of the opinion that the attorney may ethically enter into the arrangement with Company provided that the attorney at all times retains and exercises independent professional judgment in connection with the performance of the attorney’s legal services for the client. The attorney must sign the brief and in doing so adopts the work and is ultimately responsible for the accuracy of brief to both the court and to the client. ……”

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