Is Outsourcing Ethical?
There has been a lot of discussion recently on the impact outsourcing legal work has on an attorney's ability to meet her ethical obligations to her clients under the Model Rules (and the relevant ethical rules enacted by the various states). Specifically, the talk has focused on an attorney's ability to comply with Rules 1.1 and 1.6 of the MRPC.
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
In a recent opinion, the American Bar Association's Standing Committee on Ethics and Professional Responsibility specifically addressed both of these fears. In Formal Opinion 08-451, the ABA stated that:
A lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1. In complying with her Rule 1.1 obligations, a lawyer who engages lawyers or nonlawyers to provide outsourced legal or nonlegal services is required to comply with Rules 5.1 and 5.3. She should make reasonable efforts to ensure that the conduct of the lawyers or nonlawyers to whom tasks are outsourced is compatible with her own professional obligations as a lawyer with “direct supervisory authority” over them.
As long as the outsourcing attorney remains ultimately responsible for providing competent legal advise to the client in complaince with Model Rule 1.1, the ABA sees no breach in that attorney's ethical duty to his or her client through the outsourcing of legal work. The ABA also requires an outsourcing attorney to exercise the same level of supervisory oversight over the work of an outsourced attorney as they would over a younger associate or law clerk as required by Model Rules 5.1 and 5.3.
Therefore, while we will make every effort to ensure that the written product we turn over to an attorney-client is 100% accurate, the responsibility for verifying the veracity of the information contained in a memoranda or report before incorporating it into legal advice for a client remains squarely with the attorney. We realize that this may seem a bit daunting of a task, and in order to facilitate our attorney-clients' compliance with Model Rule 1.1, Southeastern will provide them with every tool at our disposal to allow them to quickly and efficiently verify the accuracy of our product. This includes, among other things, attaching the Key Cite report for every case cited, including a copy of the research trail generated in Westlaw, and keeping the attorney-client infromed as to our progress in the course of completing the contracted work.
Rule 1.6 Confidentiality Of Information (in relevant part)
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Model Rule 1.6 provides a bit more of a challenge for an attorney who wishes to outsource legal work. However, in Formal Opinion 08-451, the ABA stated that:
In addition, appropriate disclosures should be made to the client regarding the use of lawyers or nonlawyers outside of the lawyer’s firm, and client consent should be obtained if those lawyers or nonlawyers will be receiving information protected by Rule 1.6.
In light of Formal Opinion 08-451, an attorney will not violate their ethical duty of confidentiality to their client through the outsourcing of a legal research problem provided that the attorney (1) adequately or appropriately discloses that fact to a client and (2) obtains the clients consent to the sharing of that information.
In order to help our attorney-clients keep their duty of confidentiality to their clients, Southeastern encourages our attorney-clients to avoid providing us with information protected by Model Rule 1.6. If we identify a situation where it appears as if confidential information has been shared with Southeastern, we will promptly notify the attorney-client, and request that their client complete and return an Informed Consent form that will help the attorney-client meet both prongs of their ethical obligations under Model Rule 1.6.
Links: ABA Formal Opinion 08-451; MRPC 1.1; MRPC 1.6; MRPC 5.1; MRPC 5.3