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ABA Outsourcing Opinion

In August of 2008, the American Bar Association (ABA) released an ethics advisory opinion which stated that the outsourcing of legal or nonlegal support services is ethical. As a result, major firms and corporate counsel have been able to cut costs for labor-intensive projects. Additionally, smaller firms have been able to take on high volume cases and litigation that require considerable discovery.  American Discovery’s services have allowed small firms and major firms alike, as well as corporate counsel, to significantly reduce costs and maintain project deadlines with high-quality results beyond other outsource solutions. American Discovery enables our clients to effectively represent clients of their own that they would not otherwise have the capacity to represent. The key to our success is not only implementing the suggestions of the 2008 ABA Outsourcing Opinion, but also going beyond, to ensure the highest standards of compliance and efficiency.

The ABA opinion from August 5, 2008 can be found here, but recently the ABA Commission on Ethics 20/20 released an advised proposal to the 2008 opinion. The revised proposal is currently in the comment period where individuals and companies can submit opinions on the strengths and weaknesses of the revised proposal until November 20, 2011. At that time, the ABA Commission 20/20 will release another official ethics opinion on, among other things, the outsourcing of legal and nonlegal support services. However, the revised proposal as currently written is largely similar to that of the 2008 opinion. First, it is important to understand the keys from the original 2008 opinion on outsourcing.

The overarching theme of the ABA’s 2008 opinion is that there is nothing unethical about a lawyer outsourcing legal or nonlegal services, provided the lawyer provides his or her clients guidance with “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”^[1] In this manner, just as attorneys utilize legal assistants, law clerks, and paralegals, they may also use the services of outsourced providers. However, for anyone that an attorney employs for research, investigation or legal review, the attorney must maintain direct supervisory authority. This is a requirement for outsourced work domestically or internationally as well. American Discovery strictly supervises all work production and maintains the highest quality so our clients can cut costs without cutting their standards of work.

An outsourcing lawyer must ensure that tasks are being performed by individuals who are competent to perform them, while also overseeing the execution of the project. The ABA opinion recommends, at a minimum, reference and background checks of all individuals providing outsourced legal and nonlegal services. In addition, the ABA suggests thoroughly reviewing every outsourced provider’s work experience and qualifications, as well as considering the legal landscape of where the services are outsourced. At American Discovery, we are the only legal outsourcing provider with 100% domestic and offshore attorneys possessing bar-admissions and real-world experience in U.S. law. Our attorneys are not only methodically vetted, but are required to be top-flight, allowing our clients to focus on other substantive case matters.

Furthermore, the 2008 ABA Opinion advises that outsourcing lawyers should be mindful of the obligation to “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosures…”^[2] American Discovery maintains security, ethics and confidentiality compliance standards equal to large firms and multi-national corporations. With offices in the United States, Asia-Pacific and Western Europe, accountability and compliance are applied to all workflow and project management processes. This ensures our client’s information is protected with utmost care.

The ABA’s current Revised Proposal maintains largely similar standards. The proposal, which can be found here, does not introduce anything particularly new to the 2008 comment. In actuality, the ABA Commission appears to intend to elevate the ethical standards of the outsourcing of legal and nonlegal work by attorneys to the level of the Model Rules. In other words, the 2008 opinion on outsourcing was merely a suggestion by the ABA. While the Model Rules are in fact simply suggestions as well, many states adopt the Model Rules in whole or in part for their required ethical standards. So it appears the ABA is trying to further formalize the ethical standards for outsourcing.

There are a few 2011 changes that will have minimal impact on the outsourcing of work, however. To begin with, an outsourcing lawyer must ensure that the work a nonlawyer performs will be done competently and with the standards of work that the outsourcing lawyer would perform the work. Ultimately, this change prevents outsourcing attorneys from relinquishing responsibility for the standard and quality of work that a nonlawyer may perform for them. Secondly, the revised proposal describes the obligations when a client requests two different firms to work on the same legal matter together. If this is the case, both law firms must consult with each other and the client on the scope and the supervision of any outsourced work. Finally, it is important to note that the Commission has stated that they neither intend to endorse nor reject the practice of outsourcing. However, the current revised proposal contains significant laudatory language that clearly describe the benefits of utilizing outsourcing options to both firms and clients.

While the current revised proposal does not alter the 2008 Outsourcing Opinion in any significant manner, it does further formalize the practice of outsourcing. In addition, the proposal clarifies the standard of supervision and the quality of work that is required. For American Discovery, these changes are welcomed. Unlike most outsource firms, we have gone beyond the suggestions made by the 2008 ABA Outsourcing Opinion and implement standards of compliance and quality that our clients have come to expect. We provide a globally integrated service model perfected by interconnected infrastructure, personnel, and legal expertise. The result is reduced costs and predictable outcomes for our clients. The proposed changes are simply a confirmation of American Discovery’s continued standard of excellence in our work, increasing our clients’ effectiveness while lowering their expenses.