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Opinion of the ABA Ethics Committee on Lawyer Responsibilities When Outsourcing Legal Work

Opinions of the ABA Standing Committee on Ethics and Professional Responsibility guide lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships. Ethics Opinion 08-451 touches obligations of lawyers in the business of outsourcing legal work. Some significant points of the opinion are listed below:

  • U.S. lawyers are free to outsource legal work, including to lawyers or nonlawyers outside the country, if they adhere to ethics rules requiring competence, supervision, protection of confidential information, reasonable fees and not assisting unauthorized practice of law.
  • Many lawyers do outsource work, using lawyers or nonlawyers as independent contractors, hiring them directly or through intermediaries and on temporary or ongoing bases
  • Outsourcing lawyers are subject, like all lawyers, to an obligation to render competent legal services, and lawyers who supervise other lawyers or nonlawyers in performing legal services are responsible for assuring the individuals they supervise comply with ethics rules governing lawyers.
  • Outsourcing can reduce client costs and enable small firms to provide labor intensive services such as large, discovery intense litigation, even though the firms might not maintain sufficient ongoing staff to handle the work, according to a new ethics opinion issued today.
  • Depending on the level of supervision contemplated by the outsourcing lawyer, it might be necessary to obtain informed client consent before engaging outside assistance.
  • If the provider is in a foreign country, the outsourcing lawyer should determine whether the legal education system in that country is similar to that of the U.S., and whether professional regulatory systems incorporate equivalent core ethics principles and effective disciplinary enforcement systems.
  • Outsourcing lawyers may pass along to the client the costs of using the service provider, including a reasonable allocation of associated overhead expenses, but “no markup is permitted.”