Courtney Writes
Are There Ethical Issues to Consider when Outsourcing Document Reviews to India?
Courtney Ingraffia Barton, Esq., Vice President, Industry Relations
Dear Courtney,
My company is considering mandating that our outside counsel conduct all document reviews abroad in India. We are very much interested in the cost savings associated with outsourcing our reviews, however, are there any ethical issues we should consider? --
Victoria Z., Delaware
Victoria,
Your company is not alone in moving towards off-shoring its document review. More and more companies are using outsourcing as a way to manage the costs of document review, which is still the most expensive part of any discovery project. That being said, you are also right to consider the ethical implications of outsourcing these tasks. Although there have been several advisory opinions recently on the ethical implications of outsourcing legal work, including opinions by the ABA, the State Bar of California, the New York State Bar, and the County of San Diego Bar Associations, only the Bar Association of the City of New York has addressed your specific issue. In ABCNY Op. 2006-3 (August 2006), the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics opined that a New York lawyer may legally and ethically outsource legal support services overseas to foreign lawyers or laypersons provided that the representation is consistent with the provisions of the New York Code of Professional Responsibility. Under the New York Code, a lawyer, law firm or corporation must: (a) supervise the nonlawyer to ensure that the person is providing work that contributes to the lawyer’s competent representation of the client; (b) maintain client confidences and secrets; (c) avoid conflicts of interest; (d) bill appropriately for the nonlawyer’s services; and (e) obtain the client’s informed consent for outsourcing. Relatedly, the San Diego County Bar Association Legal Ethics Committee has opined that a California lawyer who outsources legal work overseas (in this case, drafting of legal documents) does not engage or assist in the unauthorized practice of law so long as the attorney properly supervises the work abroad and is ultimately responsible for the work.
San Diego County Bar Ass’n Legal Ethics Comm., Op. 2007-1 (2007).
The ABA Standing Committee on Ethics and Professional Responsibility has not yet specifically addressed the ethical implications of outsourced foreign legal workers. However, the Committee’s opinion on the domestic use of contract lawyers advises attorneys seeking to outsource legal work to exercise reasonable care to avoid conflicts and to comply with other applicable provisions of the Model Rules. See
ABA Op. 88-356 (1988). Two other outsourcing opinions are also of note: The State Bar of California Committee on Professional Responsibility and Conduct opined that it is ethically permissible for a California attorney to hire an out-of-state legal services company to research and draft briefs in connection with the California attorney’s representation of a client, provided the attorney complies with certain ethical standards, including: that the attorney at all times retains independent professional judgment, and remain ultimately responsible for the accuracy of the work, and the attorney may have a duty to disclose its arrangement with the client. See
California Bar Opinion 518. In addition, the attorney is responsible for making sure there are no conflicts of interest and no violations of client confidences or secrets. The attorney may pass on the costs of the outsourcing to the client. Like California, the Ethics Committee for the State Bar of New York found that outsourcing legal work is ethically permissible provided that safeguards are put in place to ensure adequate representation including, that the lawyer rigorously supervise the non lawyer, the lawyer must preserve the client’s confidences, take steps to avoid conflicts of interest, and when necessary, obtain advance client consent to outsourcing. See
New York Formal Opinion 2006-3 (2006).
The full text of these opinions can be found at: https://www.lexisnexis.com/applieddiscovery/lawLibrary/courtRules.asp#Bar
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Author Bio:
Courtney Barton is Vice President of Industry Relations at Applied Discovery. She answers questions from readers in each issue of The Discovery Standard. You can submit a question to Courtney at edstandard@applieddiscovery.com.
View Courtney Barton's biography.