New York City Bar Weighs in On Overseas Legal Outsourcing

The exponential growth of overseas legal outsourcingClient Consent May Be Necessary
in recent years has benefited the legal profession inThe opinion also considers the thorny issue of
many ways, not the least of which is to level theprotecting client confidences. It is often necessary to
playing field, allowing smaller firms or sole practitionersreveal confidences to the overseas lawyers in order
affordable access to the type of resources previouslyfor them to properly complete a project. But many
enjoyed only by large firms with the capacity to throwoverseas jurisdictions have less stringent rules of
an army of lawyers, paralegals, and legal assistants atconfidentiality. The ethical solution, according to the
a given project. But the practice has also raised ethicalopinion, is for the hiring attorney to obtain the client's
considerations, as attorneys struggle to apply traditionalinformed consent in advance. The client should be told
rules of professional responsibility to an increasinglywhich confidences will be shared, and the extent to
global legal industry.which the rules of confidentiality in the foreign
Last summer, the Association of the Bar of the City ofjurisdiction may offer less protection. Like the New
New York Committee on Professional and JudicialYork State Bar Association, the New York City Bar
Ethics weighed in on the ethics of overseasconcluded that attorneys do not need to reflexively
outsourcing in a formal opinion, published online atinform clients every time work is to be outsourced
Attorney Supervision is Keyoverseas to a non-lawyer. However, the hiring
Like almost every other ethics opinion from variousattorney does have a duty to disclose the outsourcing
jurisdictions that have considered the issue, the Newwhen non-lawyers will play a significant role in the
York City Bar Association affirmed that there ismatter, when client confidences are to be shared,
nothing inherently unethical about outsourcing legalwhen the client expects that only the law firm and its
support services to overseas attorneys or laypersons.personnel will be working on the matter, or when
Lawyers within firms have routinely delegated tasks tonon-lawyers are to be billed to clients on a basis other
clerks, secretaries, and other laypersons, andthan cost. In fact, absent a specific agreement with the
delegating research, brief writing, or similar tasks toclient, a New York attorney should charge no more
overseas firms is analytically no different. In both casesthan the direct cost of the outsourcing and a
the key is supervision over the non-lawyer.reasonable allocation of direct overhead expenses
The outsourcing attorney must, at all times, shoulderfrom the outsourcing.
complete responsibility for the work. This entails settingThe New York City Bar opinion concluded that a
the appropriate scope for the project, and vetting thelawyer may ethically outsource legal support work
non-lawyer's work to ensure its quality. The opinionoverseas provided the hiring attorney rigorously
suggests that, in order to ensure proper supervision,supervises the non-lawyers, takes measures to
the hiring attorney should obtain backgroundprotect client confidences and avoid conflicts of
information on the overseas firm and the non-lawyerinterest, obtains client consent when necessary, and
working on the project, conduct reference checks,bills appropriately.
interview the non-lawyer in advance, and maintain-- Doug Groene, Esq.
communication during the project.