Legal Outsourcing India - Los Angeles County Bar Association Professional Responsibility & Ethics Committee

Whether attorney in a civil case who charges an every hour rate may contract with an out-of-state company to draft a brief provided the attorney is competent to review the work, remains ultimately responsible for the final work product filed with the court by the attorney on behalf of the client, the attorney does not charge an unconscionable fee, client confidences & secrets are protected, & there is no conflict of interest between the client & the contracting entity. The attorney can outsource certain legal work but it is necessary to tell the client of the nature & scope of the contract between attorney & out-of-state company if the brief provided is a significant development in the representation or if the work is a cost which must be disclosed to the client under California law. Any refund of charges by the out-of-state company to the attorney ought to be passed through to the client if the client was separately charged for the service.
AUTHORITIES CITED: Statutes: California Business & Professions Code Section 6068, California Business & Professions Code Section
Cases: Bushman v. State Bar, 11 Cal. 3d 558 (1974); Crawford v. State Bar,
Farnham v. State Bar, Jones v. State Bar, Simmons v. State Bar, California Rules of Professional Conduct:
FACTS: An attorney licensed to practice law in California has filed a notice of appeal in a civil case on the clients behalf. The attorney charges an every hour rate for the appellate services. Soon thereafter, the attorney receives a solicitation from a legal research & brief writing company to draft the appellant opening brief for a comparatively low every hour fee. The legal research & brief writing company is not located in California, & employs both lawyers (none of whom are licensed to practice law in California) & non lawyers. Company promises to deliver a ready-to-file brief, to be signed by the California attorney. Company also promises to refund all fees paid to Company for the brief if the appeal is unsuccessful.
The attorney decides to hire Company to write the brief but has not decided yet whether to pass the charge through to the client, or to treat THE NORTH CAROLINA STATE BAR
Opinion rules that a lawyer may outsource limited legal support services to a foreign lawyer or a nonlawyer (collectively "foreign assistants") provided the lawyer properly selects & supervises the foreign assistants, ensures the preservation of client confidences, avoids conflicts of interests, discloses the outsourcing, & obtains the client's advanced informed consent.
May a lawyer ethically outsource legal support services abroad, if the individual providing the services is either a nonlawyer or a lawyer not admitted to practice in the United States (collectively "foreign assistants")
The Ethics Committee has historically in the past determined that a lawyer may use nonlawyer assistants in his or her practice, & that the assistants do not must be employees of the lawyer's firm or physically present in the lawyer's office. The earlier opinions emphasize that the lawyer's use of nonlawyer assistants must comply with the Rules of Professional Conduct. Usually, the ethical considerations when a lawyer makes use of foreign assistants are similar to the considerations that arise when a lawyer makes use of the services of any nonlawyer assistant.
a lawyer has an obligation under the Rules of Professional Conduct to take reasonable steps to ascertain that a nonlawyer assistant is competent; to provide the nonlawyer assistant with appropriate supervision & instruction; & to continue to make use of the lawyer's own independent professional judgment, competence, & personal knowledge in the representation of the client. The opinion further states that the lawyer's duty to provide competent representation mandates that the lawyer be responsible for the work product of nonlawyer assistants. That, in any situation where a lawyer delegates a task to a nonlawyer assistant, the lawyer must decide that delegation is appropriate after having evaluated the complexity of the transaction, the degree of difficulty of the task, the training & ability of the nonlawyer, the client's sophistication & expectations, & the coursework of dealing with the client. Therefore, as long as the lawyer's use of the nonlawyer assistant's services is in accordance with the Rules of Professional Conduct, the location of the nonlawyer assistant is irrelevant. Rule 5.3(b) requires lawyers having supervisory authority over the work of nonlawyers to make "reasonable efforts" to make sure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.
When contemplating the use of foreign assistants, the lawyer's preliminary ethical duty is to exercise due diligence in the choice of the foreign assistant. RPC 216 states that, before contracting with a nonlawyer assistant, a lawyer must take reasonable steps to decide that the nonlawyer assistant is competent. that the lawyer must assess the training & ability of the nonlawyer in determining whether delegation of a task to the nonlawyer is appropriate. The lawyer must make sure that the foreign assistant is competent to perform the work requested, understands & will comply with the ethical rules that govern a lawyer's conduct, & will act in a manner that is compatible with the lawyer's professional obligations.
In the choice of the foreign assistant, the lawyer ought to think about obtaining background information about any intermediary employing the foreign assistants; obtaining the foreign assistants' resumes; conducting reference checks; interviewing the foreign assistants to ascertain their suitability for the particular assignment; obtaining a work product sample; & confirming that appropriate channels of communication are present to make sure that supervision can be provided in a timely & ongoing manner. Individual cases may need special or further measures.
Another ethical concern is the lawyer's ability adequately to oversee the foreign assistants. Pursuant to RPC 216, to oversee properly the work delegated to the foreign assistants, the lawyer must possess sufficient knowledge of the specific area of law. The lawyer must also make sure that the project is within the foreign assistant's area of competency. In supervising the foreign assistant, the lawyer must review the foreign assistant's work on an ongoing basis to make sure its quality; have ongoing communication with the foreign assistant to make sure that the project is understood & that the foreign assistant is discharging the project in accordance with the lawyer's directions & expectations; & review thoroughly all work-product of foreign assistants to make sure that it is correct, reliable, & in the client's interest. The lawyer has an ongoing duty to exercise his or her professional judgment & skill to maintain the level of supervision necessary to advance & protect the client's interest. If physical separation, language barriers, differences in time zones, or inadequate communication channels do not permit a reasonable & adequate level of supervision to be maintained over the foreign assistant's work, the lawyer ought to not retain the foreign assistant to provide services.
A lawyer must retain at all times the duty to exercise his or her independent judgment on the client's behalf & cannot abdicate that role to any assistant. A lawyer who utilizes foreign assistants will be blamed for any of the foreign assistants' work-product used by the lawyer. See Rule 5.3. A lawyer may use foreign assistants for administrative support services such as document assembly, accounting, & clerical support. A lawyer may also use foreign assistants for limited legal support services such as reviewing documents; conducting due diligence; drafting contracts, pleadings, & memoranda of law; & conducting legal research. Foreign assistants may not exercise independent legal judgment in making decisions on behalf of a client. Additionally, a lawyer may not permit any foreign assistant to provide any legal advice or services directly to the client to assure that the lawyer is not aiding another person, or a corporation, in the unauthorized practice of law. The limitations on the type of legal services that can be outsourced, together with the choice & supervisory requirements associated with the use of foreign assistants, insures that the client is competently represented. Nevertheless, when outsourcing legal support services, lawyers need to be mindful of the prohibitions on unauthorized practice of law in Chapter 84 of the General Statutes & on the prohibition on aiding the unauthorized practice of law. Another significant ethical concern is the protection of client confidentiality. A lawyer has a professional obligation to protect & preserve the confidences of a client against disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.
When utilizing foreign assistants, the lawyer must make sure that procedures are in place to minimize the risk that confidential information might be disclosed. Included in such procedures ought to be an effective conflict-checking procedure. The lawyer must make sure that the outsourcing firm & the foreign assistants working on the particular client matter are aware that the lawyer's professional obligations need that there be no breach of confidentiality in regard to client information. The lawyer also must use reasonable care to choose a mode of communication that will best maintain any confidential information that might be conveyed in the communication.
Finally, the lawyer has an ethical obligation to disclose the use of foreign, or other, assistants & to get the client's written informed consent to the Legal outsourcing. Without a specific understanding between the lawyer & client to the contrary, the reasonable expectation of the client is that the lawyer retained by the client, using the resources within the lawyer's firm, will perform the requested legal services.
Legal Outsourcing India - Los Angeles County Bar Association

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