The increasing practice of legal outsourcing by in-house counsel as well as small, mid-sized, and large law firms, has led the ABA to propose changes to Model Rules that pertain specifically to outsourcing. This series of Blog Posts will describe current trends and ethical issues that are affected by legal outsourcing.
In Part I of the Outsourcing blog posts, we saw that legal outsourcing has grown dramatically, and is currently being used by law firms of all sizes. Further, outsourcing has led to the advent of intermediary outsourcing firms, also called Legal Process Outsource, or LPO firms. These firms identify foreign lawyers, communicate assignments to them, set and collect fees, and in some instances provide U.S.-lawyer review of outsourced work.
Additionally, we learned in Part II of the Outsourcing series, how legal outsourcing can encompass ethical issues such as a lawyer’s duty to provide competent representation. ABA Model Rule 1.1 states that, “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
In light of the dramatic change in the legal environment, some legal ethics commentators have provided practical advice for firms seeking to outsource work. For instance, Martha A. Mazzone, VP and Associate General Counsel Fidelity Investments has compiled a list of best practices to follow when hiring and supervising Legal Process Outsourcing Firms. Her list includes recommendations from bar opinions from the District of Columbia, Georgia, and California, as well as from legal ethics commentators. Here is her list of what constitutes “reasonable efforts to ensure” that an outsourcing vendor is providing competent legal representation:
- Conduct due diligence on the personnel and on the company hiring the personnel.
- Conduct due diligence on the country where the LPO group is located.
- Make at least one site visit and have ongoing conference calls with team leaders and key personnel.
- Develop written procedures and protocols that the LPOs must follow
- Consider security issues carefully.
- Make sure that your client understands and agrees specifically to the type of work that is being outsourced, and the identity and quality of the LPO.
For more information about outsourcing, check out this great article in Time Magazine as well as the ABA’s latest Proposed Changes to the Model Rules.
