Ethics in E-Discovery: Part 4 of 4 |
For years, companies have been outsourcing customer service duties to various countries around the world. Outsourcing refers to the process of sending work to an outside contractor, often in an effort to reduce costs. As emerging technology has rapidly expanded the roles of workers in places as far away as India, New Zealand, and the Philippines, companies are outsourcing more technical jobs to foreign workers who have a high level of technical skill and English language proficiency. Now, law firms and corporate legal departments have begun to take advantage of the cost savings and efficiencies presented by a foreign workforce.
Under a typical arrangement, a U.S. lawyer contracts (either directly or through a foreign outsourcing agency) with a foreign lawyer or legal assistant to perform legal support services traditionally done by junior associates and paralegals in U.S. law firms. The amount of work outsourced and the responsibilities given to these outside foreign workers has grown exponentially. At the same time, there has been increased scrutiny regarding the legal and ethical implications of reliance on foreign labor to conduct litigation document reviews and other tasks.
Recently, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics (the “ABCNY Committee”) opined that a New York lawyer legally and ethically may outsource legal support services overseas to foreign lawyers or laypersons. See ABCNY Op. 2006-3 (Aug. 2006). The ABCNY Committee opined that under the NY 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.
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).
This article briefly addresses the ethical issues raised in the recent ABCNY Committee’s opinion.
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