Legal offshore outsourcing: An ethical pandora’s box?

Gavin Birer posted this intro to legal offshore outsourcing at Slaw.ca.

Most interesting was his assertion that “… [l]awyers … perform qualitative, skill-intensive legal tasks … . By contrast, offshore legal outsourcing vendors typically perform quantitative, ‘lower-skilled’ legal tasks, and serve as a support to their law firm and legal department clients. …”. According to Birer, these tasks include “… document review, document drafting, legal research, due diligence, and much more. …”

My initial concern would be with the lawyer’s duty to exercise independent professional judgment. Rule 2.1 of the American Bar Association Model Rules of Professional Responsibility states the duty explicitly. Rule 3, Commentary 1 of the Canadian Bar Association Code of Professional Conduct states that:

The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer’s own experience and expertise. The advice must be open and undisguised, clearly disclosing what the lawyer honestly thinks about the merits and probable results.

In any event, the lawyer’s duty to exercise independent professional judgment exists quite apart from the explicit dictates of any professional code. That is exactly what the client pays for.

Independent professional judgment is at the heart of every one of the tasks that Birer describes as “lower-skilled” work.

Document review is just one example. Typically, this involves determining which, out of a large volume of documents, is relevant to a piece of litigation or other retainer in which a lawyer is involved.

Failure to disclose relevant documents can have serious repercussions for the client. Improper disclosure of certain documents is equally problematic. It is difficult to imagine how such a critical task carried out by a legal service provider on the other side of the globe, could be supervised in any adequate manner.

The same difficulties exist in legal research and due diligence. Again, it is difficult to imagine how an offshore provider can be said to be sufficiently qualified to conduct legal research or due diligence to a standard such that it would be appropriate for a local lawyer to base a serious opinion it.

Over the longer term, legal outsourcing also risks the erosion of the knowledge base and experience of the profession’s future senior members. Much of a lawyer’s training and experience is developed over time performing, under the supervision of more senior lawyers, the very tasks that Birer would refer overseas. When the lawyers who will ultimately be dealing with the “higher-skilled” tasks locally, they will be short the experience and the knowledge that comes from carrying out the “lower-skilled” task that form the basis for the remainder of the retainer.

In that regard, there is a serious question about whether legal outsourcing is in the long-term best interests of the public.

At first blush at least, the practice of legal offshore outsourcing is fraught with potential ethical issues, and should be used with great caution, if at all.

A firm should be extremely careful about what work it outsources, and whether there is any realistic likelihood that the work can be properly supervised in any meaningful way. In addition, if an opinion is to be based in any significant way upon work performed by outsourced providers, the client should be specifically advised that the opinion may be based upon document review or due diligence carried out by persons outside the firm’s membership.