ABA Endorses Outsourcing Legal Services to Outside the U.S.

As recently reported at Law.com:

The American Bar Association has waded into the debate over legal outsourcing with an ethics opinion blessing the outsourcing trend as "a salutary one for our globalized economy."

A growing number of legal process outsourcing (LPO) companies have sprouted up in recent years to offer the services of lawyers abroad to handle the most labor-intensive aspects of U.S. legal matters, especially document review in large-scale litigation. India has been the most popular destination for legal outsourcing because it has a common-law system and English is widely spoken.

Ethics Opinion 08-451, dated Aug. 5 but announced by the ABA Tuesday, states that sending legal work overseas is ethically permissible as long as the lawyer doing the outsourcing takes steps to ensure the protection of client confidences and preservation of attorney-client privilege. The advisory also states that attorneys should check to make sure that foreign lawyers are suitably trained and competent and that bills for outsourced work be reasonable.

Read the entire article here.

Over the years I have had the pleasure of having several foreign lawyers as students in our Paralegal programs. These students were already graduates of law schools and the equivalent of lawyers in places like India, Pakistan, Brazil and China. They were every bit as competent as members of the local bar but they were unable to be admitted to the Illinois bar because they did not graduate from an ABA approved law school. Nobody worked harder, put in more time, paid attention to details or cared about their progress more than these foreign lawyers limited to a career as a paralegal here in this country. These individuals have been some of my favorite and most rewarding teaching experiences. To be clear, despite being fluent in English, there are often language issues and that is a concern here and with any outsourcing of professional services to other countries. Unlike my students who have time to overcome any such issues, the “efficiency” sought by such proposals seem to be in conflict with careful review and the opportunity to overcome any language issues that may arise.

Sure, we outsource all other professional services to the same area of the world. If you go to your local community hospital in the middle of the night your CT or MRI scan is likely reviewed by someone half a world away with the same arguments and guarantees of competence and confidentiality as are presented in the prospects of outsourcing legal services to the same region.
So long as these aren’t “sweat shops”, the foreign professionals are treated as such and are allowed the time and resources to be as thorough and competent as we would expect for a lawyer outsourced for such services just down the street, I may be more at ease with this development. Where I struggle is with the lack of control over the persons entrusted to do the work or the ability to ensure confidentiality is maintained. Further, I have real doubts that outsourcing these services will result in the lawyer who utilizes this outsourcing opportunity from relying on these services to the extent that his or her client won’t be faced with charges for that lawyer reviewing, at least in part, that same information.

If I have a qualified paralegal or associate in house and they perform the types of services sought to be outsourced here I am likely more confident in reviewing and accepting their results. Yes, the firm’s bottom line takes a larger hit by having these folks on staff as opposed to outsourcing the same services half way around the world, but it seems to me this is an acceptable cost and a much better choice if I care about the principles of what it really means to be a lawyer, if I care about providing the best legal services possible, and if my doing so is more important in my list of priorities than my firms bottom line.

We, as lawyers, need to shut out all the non-lawyer influences and get back to focusing on being professionals as opposed to businesspersons. We should be concerned that our fees are reasonable and our services are of the highest quality. It’s one issue entirely to swallow your pride and your time, while hopefully not cutting back on services due and required, in order to meet cost focused billing directives from corporate and insurance company clients. It’s another altogether to attempt to cut the firms costs of doing business by shipping responsibility for legal services entrusted to sources outside the walls and control of the law firm.

My read, this is but another “business” decision that causes further damage to the practice of law. The tide continues to roll with decisions like this that seek to enhance the bottom line of a certain level of law firms while cheapening the practice of law. We need to focus less on ways to cut the costs of providing legal services and get back to a client centered focus of first and foremost providing quality legal services. That may mean saying “no thanks” to clients who want to dictate what services we provide or how we provide those services. That’s okay, because the reality is that, for the competent lawyer, the words of Abraham Lincoln still ring true: “There will still be business enough”.