Legal Outsourcing – A New Frontier or Yesterday’s News?

Lately I have heard a lot of buzz about outsourcing as the new trend in litigation. This is simply not true. Outsourcing has been around for a while…but not everyone has been paying attention. The Webster’s definition of outsourcing reads “to procure (as some goods or services needed by a business or organization) under contract with an outside supplier”. I have news for you - major law firms have been outsourcing since the 1980's. For example, during my early days in practice we outsourced copying and the creations of exhibits to the likes of Ikon and even outsourced manual document review to per diem attorneys (a.k.a., contract attorneys). Today, a firm in Los Angeles may have its review team in Kansas – move over Toto! – or spread across the country working virtually. In fact, a few well established firms have set-up review facilities throughout the middle of this country – where the going hourly rate is well below what you would pay for attorneys in New York or Los Angeles. To put it simply, outsourcing is not new; it has been firmly embedded in the practice of law for decades.

Outsourcing off-shore is really no different than the common practice of using contract or staff attorneys. The only difference is location, location, location. Does location really matter? No, it doesn’t. Bar committees in Los Angeles County, San Diego County and New York City have all ruled that “lawyers may contract with foreign lawyers not admitted to practice in any jurisdiction in the United States, or with non-lawyers outside the United States, to perform legal work for U.S. clients” without aiding the unauthorized practice of law. Steven J. Mintz, Ethics Opinions Allow Foreign Legal Outsourcing, ABA Litig. News Online, July 2007, at: http://www.abanet.org/litigation/litigationnews/2007/july/0707_article_outsourcing.html; see also Professional Ethics of the Florida Bar, Proposed Advisory Opinion 07-2 (Sept. 7, 2007) (also considering the issue and favorably citing the decisions of Los Angeles County and New York City). Under North Carolina Proposed 2007 Formal Ethics Opinion 12 a lawyer may outsource limited legal work to a foreign lawyer or non-lawyer, provided that the U.S. lawyer properly selects and supervises the foreign assistants, ensures the preservation of client confidences, avoids conflicts of interests, discloses the outsourcing, and obtains the client’s advanced informed consent. North Carolina State Bar, Proposed 2007 Formal Ethics Opinion 12 (July 12, 2007). Essentially, it doesn’t matter whether you are outsourcing to a contract attorney sitting in another state (and not licensed in your state) or a foreign national (attorney, or not) sitting in Manila or Bangalore. Both are outsourcing and both are treated the same way by bar associations across the country.

To outsource or not to outsource is not the question. If you are practicing, you are probably outsourcing. Instead, the question is “what is your outsourcing strategy?” I, for one, am curious…