Litigation Support

On August 5th, the American Bar Association released Formal Opinion 08-451, regarding a lawyer?s obligation when outsourcing legal and nonlegal support services. There was, initially, quite a ballyhoo over the fact that the ABA had endorsed outsourcing in its opinion. LPO companies were quick to trumpet the news, eager for a lot of new business, including EDD review. But after carefully reading the opinion, I?m not sure all the news is terrific for lawyers who want to outsource ? especially abroad.

While the opinion is a clear win for law firms who outsource work to U.S. based firms and lawyers, it is a lot muddier when it comes to foreign firms. In fact, the more I read it from the point of view of a lawyer determining whether to outsource abroad, the more nervous I got about complying with the opinion.

Though not everything is absolutely mandated, we are talking about the following being either required or advisable:

1. reference/background checks for the lawyers and their firms
2. interviews with the principal lawyers of the firm
3. assessments of their educational background
4. assessing whether the system of legal education is comparable to the U.S.
5. investigating the security of the provider?s premises and its computer security, perhaps even including its recycling and refuse disposal procedures
6. paying a personal visit to the provider?s facility
7. becoming familiar with the data laws in the provider?s country, including whether data might be subject to seizure by a court
8. learning whether the judicial system in another country would protect client data in the event of a dispute between the service provider and the lawyer
9. advising the client of the engagement and securing consent
10. exercising appropriate supervision of the work done
11. ensuring that the provider does not work for adversaries of the lawyer?s clients

I would add to that list that a lawyer better know whether the U.S. government takes the stance that it can monitor data outside the U.S. whether stored or in transmission.

So I don?t see this opinion as a slam dunk for the LPOs located abroad. Many lawyers will no doubt conclude that it is simply safer to outsource here. But since money makes the world go ?round, no doubt the opinion will allow the growth of the foreign LPOs, irrespective of the fairly stringent requirements. It?s just plain cheaper, a lot cheaper, to do many things abroad, especially the review of electronic evidence.

Well, I?ve always wanted to visit India. As a lecturer and author, perhaps a field trip is in order.

E-mail: snelson@senseient.com     Phone: 703-359-0700