Is Outsourcing Legal Research Ethical?
Thinking of using one of the cheap Indian legal research outsourcing firms? Does outsourcing Legal Research breach any rules of professional ethics?
While there has been no determination of this issue in Canada, at least three American bar regulators have chimed in on this subject. The answer is yes, with full disclosure and the referring firm being liable for the work outsourced.
The first was the Los Angeles Bar, concluding that:
An attorney in a civil case who charges an hourly 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 and secrets are protected, and there is no conflict of interest between the client and the contracting entity. The attorney may be required to inform the client of the nature and scope of the contract between attorney and 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.
The Association Of The Bar Of The City Of New York Committee On rofessional And Judicial Ethics last August concluded that:
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.
Now the San Diego Bar has come to a similar conclusion:
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.
And there’s a good summary at Law.com today too.
THIS IS NOT A LEGAL OPINION; I AM NOT YOUR LAWYER
Fadi Amine wrote a post called L’impartition au Québec? a couple of months ago following an article in The National. He reviews the applicable laws in Quebec.
However, I tend to disagree with a restrictive interpretation of the law. In fact, such interpretation would result in the impossibility for students (as Fadi was when he wrote the post) working in law firm to draft memos, etc.
I have the feeeling, more or less like the americans do, that outsourcing is legal as long the “final” opinion comes from the local lawyer.
1. Ontario lawyer doesn’t know answer to problem so calls expert friend X who is alway an Ontario qualifed lawyer. Gets answer. Writes it up and bills client.
2. Ontario lawyer doesn’t know answer to problem so calls expert friend X who is a professor an Ontario (or other Canadian law school) but not an Ontario-qualifed lawyer. Gets answer. Writes it up and bills client.
3. Ontario lawyer doesn’t know answer to problem so calls legal research company based in Alberta who may or may not have Onario qualified lawyer(s) . Gets answer. Writes it up and bills client.
4. Ontario lawyer doesn’t know answer to problem so calls legal research company based in Lower Slobovia whodo do not have any Ontario-qualified lawyers but do Shmoos. Gets answer. Writes it up and bills client.
5. Client finds out about (4) and next time calls Lower Slobovia himself. Gets Shmoos, too, with less expense.
My view is that anybody who thinks this issue has has anything do with with anything other than keeping the work in the legal communities l needs to rethink his or her assumptions.
Well, I was following David C with approval till his conclusion. I think it is legitimate for the profession in a given jurisdiction to be concerned about the quality of the professional advice being given by its members – since they all pay for negligence insurance – and thus for the calibre of the research backing up the advice. But so long as the local lawyer is on the hook for the advice, and it is professionally respectable advice, where the research gets done or by whom is not important.
The client who bypasses the lawyers and calls Lower Slobovia directly may find it hard to recover for the negligence of the Schmoos. Part of the reason to hire someone in a regulated profession is to benefit from the regulations (like mandatory insurance). (cf paralegal debate)
John,
You’ve, obviously, never met a Shmoo. (If you haven’t, search on Dogpatch, schmoo, Slobovia etc.)
If the news that BIG TORONTO /NY /LONDON LAW FIRM are prepared to outsource their legal research to company X some place on earth, howl ong do you think it’s going to be before that news gets out to the average person. If it’s good enough for the big guys ….
Byond that? I think we’ve said the same thing on the quality issue. I wasn’t suggesting it’s not legitimate for the profession to be concerned about the quality of the work its members do. (What we do to maintain those standards is another question.) If lawyer X doesn’t know enough to decide whether the opinon he’s received is good or not, it’s not going to matter if it comes from Mars, Venus or Earth. The lawyer might have more comfort if it comes from somebody in the office who has a Canadian ticket; however, all that is proof of is that the person has a Canadian ticket.
It’s the public’s call if they want to go the cheap route. You get what you pay for. Sometimes it worth it. Sometimes it’s not.
Thanks Simon, for the precautions one should take before Outsourcing laid by Bar opinions.
Yes, Robust Security, Secure Outsourcing Contract, Clear Statement of Contract for any breach of liability & proper governance can make Law firms, Solos & Companies to enjoy Global Intellect resources.
Much elated to revert for any query.
Thanks,
AS
avish.sharma@yahoo.co.in
It seems to be that pragmatically speaking it all boils down to disclosures. if the fact that the research has been outsources or would be outsourced is informed to the stake-holders, I do not see any ethical issue left to be addressed.
Just that those involved in it have to ensure that the facts of outsourcing have been disclosed and the objections thereto have been dealt with.