Clarifying the ethics of legal process outsourcing

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Law firms are increasingly turning to legal process outsourcing to become more efficient and effective. Can this be done in a way that protects the lawyer's complex ethical duties to clients? This article argues that the answer is yes, so long as appropriate precautions are taken. This piece first appeared in Bender's Immigration Bulletin, 22 Benders. Imm Bull. 705 (June 1, 2017), and is reprinted with permission. 

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The back office in Bangalore; Clarifying the ethics of legal process outsourcing

There is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

American Bar Association[2]

A new way to manage law firm growth.

Lawyers are faced with tough choices as their practices grow. As demand increases, the traditional answer is to add a part-time general assistant. The part-time assistant becomes a fulltime employee and more staff follow. With employees come huge responsibilities for the lawyer, including training, supervision, regulatory compliance, and liability. Before turning reflexively to in-office staff, the contemporary practitioner should be sure to consider all her options.

There are now a myriad of opportunities to take tasks traditionally performed within the walls of a law firm and delegate these to independent service providers elsewhere. “Outsourcing” generally refers to “the practice of taking a specific task or function previously performed within a firm or entity and, for reasons including cost and efficiency, having it performed by an outside service provider.”[3] “Off-shoring” is the more accurate term when the provider is located outside of the United States.[4] Outsourcing is especially attractive to small firms, since it can allow the firm to delegate non-lawyer tasks and boost its workload without the ongoing financial commitment of an employee.[5]

By 2010 India had in the neighborhood of 110 legal process outsourcing providers (LPOs), with the field growing at approximately 40 percent annually[6] or perhaps even faster.[7] The American Bar Association (ABA) estimates that overseas LPOs do one billion dollars in revenue annually.[8]

In its September 2001 report, the ABA Commission on Ethics 20/20 concluded that existing ethics rules provide adequate structure for addressing attorneys’ ethical responsibilities when outsourcing.[9] Use of LPOs has been endorsed by ethics opinions in Colorado, Florida, Los Angeles County, New York City, North Carolina, Ohio, and San Diego, as well as by the ABA.[10] Each has concluded that off-shoring is allowed by the rules of professional responsibility, so long as safeguards are taken. Ultimately, “all suggest that foreign outsourcing should be subject to the same ethical requirements as the domestic use of nonlawyer services.”[11] In the words of one commentator, a lawyer who follows best practices for use of LPOs, “should have nothing to worry about.”[12] Yet complying with the complexities of best practices is no small matter.

The principle at the heart of the ethics issues is this: the attorney choosing to outsource work bears ultimate responsibility for her work and that responsibility cannot be delegated.[13] The remaining discussion amounts to details about how to ensure that the attorney remains at the helm of a representation and in control of work being performed for her client.

This article offers practical advice for how an attorney may ethically benefit from legal process outsourcing.[14] Section II briefly summarizes some of the possible benefits of outsourcing. Section III walks through the many ethical issues that arise from outsourcing and suggests steps to address each possible issue. Section IV offers a checklist  for vetting specific LPO providers for compliance with ethics best practices. Finally, Section V suggests that client interests are best served when lawyers explore creative solutions for their clients, including the use of outsourcing.

The potential benefits of LPO.

In the grand scheme, LPOs can do practically any work that would traditionally be performed by lawyers or nonlawyer staff within a firm. Contract lawyers may perform legal research, review discovery material, or make court appearances.[15] Foreign LPO firms provide both “objective” services, such as document management and review, transcription and legal research, as well as “subjective” services, such as brief writing and developing case strategies.[16] At least one LPO provider in India has crafted briefs for the U.S. Supreme Court and federal appeals courts.[17]

The typical reason law firms turn to legal process outsourcing is cost savings.[18] Especially with foreign LPO providers, firms may be able to capture substantial benefit from labor arbitrage.[19] Providers in India can perform legal services at a 20-60% cost savings compared to U.S. firms.[20] Document review services, for example, may be priced around $20 per hour.[21] In the context of larger firms serving corporations, it has often been the client that initiates the move towards using LPO, demanding it as a cost-cutting strategy.[22]

Another important financial benefit of outsourcing is that it frees a lawyer to make better use of her time.[23] Especially in early stages of her career – and especially in solo practice – a lawyer can spend a substantial portion of her workday on tasks that do not require a lawyer’s expertise. Drafting immigration forms, for example, is work that at an established firm would be performed by well-trained support staff. Two hours spend drafting an adjustment of status packet are two hours that the lawyer could be spending on tasks she is better qualified to perform, or on the business of growing her practice.

Similarly, a firm’s workload may be subject to dramatic peaks and valleys. At larger firms, fluctuations in volume might be readily absorbed, but they may result in serious strain to a smaller or solo firm. Outsourcing can allow a small firm to quickly scale-up its capacity on demand. Conversely, during slow times, outsourcing allows the lawyer to avoid carrying to cost of support staff who are not being fully utilized.

Time zones create another extraordinary benefit when off-shoring legal work. Because of the time differences between the U.S. and the Asian nations where most LPOs are based, law firms may capture time efficiencies by having work performed outside U.S. business hours. Even complex projects can be completed literally overnight.[24] A U.S. attorney could receive a questionnaire from a client at 4:30 in the afternoon, pass it to a colleague in India, and have a completed and proofed Form I-130 waiting on his desk in the morning.

But is it ethical to use off-shoring?

Lawyers tend to trust their guts. And that is often a good thing. But when it comes to legal ethics, it is easy to confuse the unfamiliar with the genuinely problematic. Just a couple years ago, lawyers wondered whether they could ethically use cloud-based computing. While there is broad consensus that safeguards must be taken with any technology adopted by a firm, there is no basis for categorically challenging the use of cloud-based computing. Following the lead of all other knowledge-driven industries, law firms are now moving their computing to the cloud and reaping extraordinary benefits.

Legal process outsourcing may follow a similar trajectory. Off-shoring seems problematic because it is unfamiliar – and, indeed, foreign. But like cloud computing, it is clear there is nothing categorically wrong with the use of legal process outsourcing or off-shoring. Instead, there are a myriad of ethical issues that merit scrutiny and require workable solutions.

This section discusses the ethical issues that come into play when a law firm considers using off-shore LPOs. Many ethical issues surrounding the use of LPOs are simply inherent to the use of contract paraprofessionals, whether the individual is located down the street or on the other side of the globe.[25] But the section pays special attention to the greater challenges of using foreign service providers. Citations are provided to the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”), which serve as the model for the ethics codes of most state bar associations.[26]

Aiding a nonlawyer in the unauthorized practice of law.

The unauthorized practice of immigration law is a serious problem in the United States.[27] Given that foreign outsourcing workers are not licensed U.S. attorneys, is collaboration with them akin to sending work down the street to an unlicensed notario? No – not so long as the firm exercises control over the LPO and appropriately supervises its work. This arrangement is comparable to using in-house paralegals to support a lawyer so long as precautions are taken.

Model Rule 5.5 prohibits a lawyer from assisting the unauthorized practice of law (UPL).[28] Likewise, under Model Rule 8.4 it is misconduct for a lawyer to “knowingly assist or induce another” to violate the rules of conduct.[29] The question of whether a particular activity constitutes the practice of law is not itself an ethics question, but rather depends on the regulatory law of a particular jurisdiction.[30]

A lawyer may – thank goodness – ethically delegate tasks to nonlawyers within her firm.[31] Ethics opinions agree that she may also delegate work to nonlawyers outside walls of the firm without impermissibly aiding UPL.[32] Addressing the issue, the New York City Bar Association cautions that lawyers must remain at the helm of the representation

…to avoid aiding the unauthorized practice of law, the lawyer must at every step shoulder complete responsibility for the non-lawyer’s work. In short, the lawyer must, by applying professional skill and judgment, first set the appropriate scope for the non-lawyer’s work and then vet the non-lawyer’s work and ensure its quality.[33]

This, ultimately, is the familiar role of the lawyer working alongside nonlawyer staff in a firm. The lawyer must remain responsible for decisions on the representation, and must appropriately supervise work by non-lawyers. As the San Diego Bar Association puts it, “the [LPO] company to whom work was outsourced has assisted the California lawyer in practicing law in this state, not the other way around.”[34]

The most obvious UPL violation would occur where an LPO provided direct legal services to the client of a U.S. firm. Outsourcing firms correctly avoid that situation by specifically disclaiming that they provide legal services.[35]

The safeguards required to avoid aiding UPL fold into other ethics issues addressed independently below. For example, an attorney must be competent to – and must actually – supervise the work of a foreign lawyer.[36] The New Jersey Bar suggests that proper attorney supervision forecloses the possibility of aiding UPL.[37] Wholesale delegation of work to an LPO, without supervision, could indeed run afoul of unauthorized practice rules.

The New York City Bar Association endorses a “sliding scale” approach, whereby the degree of required supervision escalates with the complexity of the task at hand.[38] The Bar refused to adopt a per se rule, by which attorney supervision would necessarily whitewash activity that would otherwise constitute UPL.[39] The lawyer must, “set the appropriate scope for the non-lawyer’s work and then vet the non-lawyer’s work and ensure its quality.[40]

One commentator advises that “[a] law firm hiring an outside company needs to be sure that none of the assigned tasks could be considered the unauthorized practice of law.”[41] But that misstates the view of ethics bodies. The primary focus is on the level of supervision and independent judgment exercised by the outsourcing attorney, rather than on the task itself.[42] For example, a lawyer may delegate to a student law clerk a task that would constitute the unauthorized practice of law if performed without supervision, such as drafting a motion or complaint.[43] As with a law clerk, the question is whether a licensed attorney has taken effective responsibility for the task performed by an LPO worker. Even work that is plainly the practice of law – such as drafting a complaint or motion – may be outsourced if a U.S. lawyer retains responsibility for it and exercises independent judgment.

The details of appropriate supervision are discussed below in Section III(c). To date, no ethics board has suggested that supervision inherently requires face to face interaction, versus remote electronic communication.[44]

At the end of the day, the lawyer must remain the lawyer: fully in charge of the representation. The prohibition against UPL is no inherent bar to the use of LPO so long as the lawyer remains the lawyer.

Securing client information.

One of a lawyer’s core ethical duties, of course, is to safeguard her client’s information. In the digital era, much of the attention on this fundamental duty has appropriately centered on issues involving lawyers’ use of technology.[45] Just as a lawyer has a responsibility to vet the use of technologies deployed for use within a firm, she has a responsibility to vet an LPO to ensure that client data will be protected from a technological, procedural and legal standpoint. These are serious yet surmountable challenges.

The lawyer’s duty to secure client information springs from Model Rule 1.6 and the responsibility to maintain client confidences, together with Model Rule 1.1 which imposes the duty of competence. Under Model Rule 1.6, a lawyer must take appropriate steps to ensure that client information is not disclosed by an LPO, whether accidentally or intentionally.[46]

Data and premises security.

Commentators generally consider data security to be one of the most serious ethics concerns with LPOs.[47] Of the ethics opinions that address information security with regards to use of LPOs, there is unanimous agreement that lawyers have a responsibility to carefully assess how client information will be handled.[48] This should be no surprise, as an attorney owes a duty of due diligence when selecting third-party technology providers in any scenario.[49]

From a practical standpoint, the task of screening LPO’s technological compliance is quite complex, requiring analysis of technical specifications.[50] The ABA has opined that, “[d]epending on the sensitivity of the information being provided to the service provider, the lawyer should consider investigating the security of the provider’s premises, computer network, and perhaps even its recycling and refuse disposal procedures.”[51]  This suggests an attorney would need to examine the provider’s technology systems as though the attorney herself were using them. The ABA suggests that an attorney may need to inspect the LPO’s computer network and facility, down to how trash and recycling are handled.[52]

As the Florida Bar has noted,

. . .an attorney must be mindful of, and receive appropriate and sufficient assurances relative to, the risks inherent to transmittal of information containing confidential information. For example, assurances by the foreign provider that policies and processes are employed to protect the data while in transit, at rest, in use, and post-provision of services should be set forth in sufficient detail for the requesting attorney.[53]

Much has been written about the appropriate selection if legal technology, and that discussion cannot be fully revisited here. Suffice to say that the LPO’s information technology systems would need to pass the same due diligence tests as technology adopted by the U.S. firm itself.

A partial solution to the data security to challenge is to maintain the client data within the firm’s own cloud-based systems.[54] Indeed, unlike a contractor working within a law firm, with an LPO the hiring form can easily give access to only the specific information needed to complete a project.[55] Data may be stored, for example, in the secure law practice management application such as Clio,[56] which an LPO accesses through a user license which may be assigned levels of permissions. While this does not guard against every possible misuse of the client data, it does add one additional element of control. It would also help to mitigate the risk of a foreign government seizing the data, as the data is maintained within the control of the U.S. firm.[57]

Commentators have suggested that – even more so than for other ethical challenges – concerns over confidentiality may best be resolved through an in-person site inspection of the LPO facility.[58] “Without a site visit, you are relying on the brochures and websites of the vendors trying to sell you their products. In other words, you know they are “talking the talk,” but do they walk the walk?”[59]

Procedures and training.

The world’s best encryption is worthless in the hands of an untrustworthy staffer. In addition to knowing that client data is managed appropriately from a technological standpoint, a lawyer must assess the individuals who will be handling the information, along with the procedures in place to ensure confidentiality. This implies obligations both at the initial vetting stage, as well as a continued supervisory responsibility. Information security could be jeopardized not just through negligence on the part of the LPO provider, but also through downright malfeasance. In one extreme case, an India-based LPO held data hostage until a U.S. customer dropped legal claims against it.[60]

Ethics committees expect to see a hands-on approach to training and overseeing the foreign staff:

[The] law firm should establish practices and procedures for the supervision of offshore legal support that are sufficiently adaptable to the specific offshore entity and compensate for the physical separation, time zone differences, and any differences in legal systems and legal education and training. This requires the law firm to become sufficiently familiar with the professional training of the foreign professionals, attend to training the foreign professionals in relevant legal and ethical rules, and establish regular communication practices to ensure that the foreign professional has reasonable access to supervising lawyers in the local law firm[61].

With an assistant sitting a few feet away, it is tempting to “train as you go,” and indeed to make up procedures as you go. Instructions for an off-shore LPO must fully specify all the procedural minutia that are otherwise easy to improvise.

The firm and LPO should have clear policies that address confidentiality issues. At the minimum, an LPO provider should be required to sign a confidentiality agreement.[62] This agreement should require that the staff understand and adhere to U.S. confidentiality rules and outline the procedures the LPO will use to safeguard client information.[63] The New York City Bar Association recommends a periodic mechanism for drawing the LPO’s attention back to the importance of client confidentiality.[64]

In addition to limiting data from a technical standpoint, on-site procedures can limit the information to which an LPO staff has access.

Foreign law and legal culture.

Most ethics decisions and commentators agree that an attorney has the responsibility to ascertain the foreign legal rules bearing on confidentiality concerns.[65] The laundry list of such concerns may be daunting:

Do those laws protect privacy? Do laws of the local jurisdiction require the outsource supplier to keep confidential information private? Do the laws provide an adequate remedy to the law firm and its client should the outsource supplier breach its obligations of confidentiality? Are contractual obligations of confidentiality recognized and sufficiently enforced in the outsourcing country? Are adequate and real remedies available in the event of a breach?[66]

For one thing, “to overcome these obstacles, many U.S. based firms have modified standard confidentiality agreements to require that all disputes must be litigated in U.S. courts.”[67] Additionally, firms may mitigate the risk of unfriendly foreign privacy laws by requiring that any offshore data be destroyed after a project is completed.[68]

A final note is on the role of culture surrounding the safeguarding of confidential information. Certainly, some LPO providers – as with a new office staff member – may simply fail to grasp the seriousness of an attorney’s obligation to comply with ethical strictures.[69] But commentators commonly suggest that “cultural differences” entail that Indian lawyers are less apt to protect client information, such as not disclosing it in casual conversations.[70] Certainly norms among legal practitioners will vary between countries, just as they often vary from one U.S. county to another. But it is hard not to catch a note of imperial superiority in this concern. Are lawyers in the world’s largest democracy – whose citizens seem to maintain secrets perfectly well with respect to, say, its nuclear arms program – intrinsically unable to handle a client file? It is difficult to suggest that with a straight face.

Supervising from the other side of the globe.

Ethics opinions agree that a lawyer can fulfill her obligation to supervise offshore LPO workers, though this challenge is heightened by distance.[71] The duty of supervision is a thorny challenge for off-shore LPO providers, but no ethics committee has found it to be inherently insurmountable.[72]

Under Model Rules 5.1 and 5.3 an attorney has the responsibility to require the ethical conduct of lawyers and non-lawyers under the attorney’s supervision.[73] For lawyers, the attorney must take reasonable efforts to ensure their conduct “conforms” to the Model Rules;[74] for non-lawyers the attorney must take reasonable efforts to ensure their conduct is “compatible with” the Model Rules.[75] With both lawyers and non-lawyers, a supervising attorney has committed an ethics violation if she orders or ratifies conduct that constitutes a rule violation.[76]

The supervisory responsibilities of an attorney (Table 1)
Who is being supervised? Supervision required. Supervisor responsible for ethics violation.
Lawyer “shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct” “the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved”
Non-Lawyer “shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer”

 

The supervisory duties pertain to the lawyer’s core ethics issue with outsourcing: the attorney’s ultimate responsibility for a representation. Ethics opinions unanimously agree that certain measures must be taken by the outsourcing attorney to provide adequate supervision.[77]  Jurisdictions to consider the issue have disagreed about whether to treat a foreign attorney as a lawyer for purpose of determining the duties of a supervisor.[78] The prevailing view, which is the more conservative approach for practitioners, is to treat the foreign attorney as a non-lawyer.[79]

Model Rule 5.3 articulates a slippery legal standard. What does it mean for to require a nonlawyer to act “compatibly,” though not “conform to,” the Model Rules? The Los Angeles Bar Association opines, “the attorney must review the brief or other work provided by [an LPO provider] and independently verify that it is accurate, relevant, and complete, and the attorney must revise the brief, if necessary, before submitting it ...”[80] Though this seems agreeable enough, on close scrutiny, it is difficult to identify precisely what this supervision would require.

According to the ABA, the supervisory issue boils down to this:

The challenge for an outsourcing lawyer is. . . to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately.[81]

The San Diego and New York City bar associations have suggested something of a sliding scale approach to supervision.[82] According to the San Diego association, firm should consider the following factors when determining the required level of supervision for the LPO staff:

  1. Whether the non-attorney may be disciplined or terminated for improper conduct;
  2. Whether the non-attorney's compensation be adjusted for poor performance by the non-attorney;
  3. Whether the non-attorney has been educated and/or trained in any way by the attorney;
  4. Whether the attorney has the ability to review the non-attorney's work ethics and practices;
  5. Whether the attorney regularly provides input to the non-attorney on his/her performance; and
  6. Whether the attorney has the ability or discretion to restrict or confine the non-attorney’s areas of work or scope of responsibility.[83]

Put more concisely, “the ambit of tasks that an attorney may delegate to non-lawyers should be commensurate with the degree of supervision that the attorney provides over the work of the non-lawyers[84]

Model Rule 5.3 requires that lawyers take reasonable efforts to ensure that an LPO’s actions are compatible with the attorney’s ethical obligations. The Ohio ethics board has point out that adherence to all of the safeguards recommended by the ABA – including on-site visits – would be onerous, especially for a small firm.[85] Certainly, a level of supervision that might be “reasonable” for an AmLaw 100 firm doing sensitive work on a multinational merger might not be “reasonable” for a solo attorney outsourcing clerical work.

Whether nonlawyer work is done in-house or through an LPO, the lawyer has a duty to communicate clearly with the person doing the work throughout the duration of the project.[86] It may also be helpful for the U.S. firm to provide a designated point of contact to answer any ethics questions that arise within the LPO.[87]

Must LPO use be disclosed to clients?

If a law firm has decided to use the services of an LPO, what – if anything – must be communicated to the firm’s clients? Ethics opinions have generally concluded that a firm must obtain informed consent from its clients prior to using an LPO.[88]

Informed consent to use of an LPO is required when confidential information will be disclosed.

Model Rule 1.6 prohibits an attorney from revealing information “relating to the representation of a client” absent informed consent or implied authorization from the client.[89] The scope of Rule 1.6 is broad enough to encompass virtually any information received from a client during a legal representation.[90] The prevailing view is that an attorney must secure informed consent to release confidential information to an LPO.[91]

The Ohio ethics board rejects the notion that an attorney has implied authorization to share client information with an outsourcing provider, since “confidentiality is a hallmark of the attorney client relationship” and the client is therefore justified in believing her information will remain within the law firm.[92] Likewise, the ABA has opined that a client impliedly consents to disclosure of information with contract attorneys working within a firm, but concludes the more attenuated supervision and control makes LPOs qualitatively different.[93] As the Colorado Bar Association has put it, there is no “convenience” exception to Model Rule 1.6.[94]

In a draft opinion, the Virginia Bar’s ethics committee took a slightly different view. While it believed that informed consent would normally be required,

There is little purpose to informing a client every time a lawyer outsources legal support services that are truly tangential, clerical, or administrative in nature, or even when basic legal research or writing is outsourced without any client confidences being revealed…[95]

This approach is probably consistent with the reality of how firms handle the minutia of running a law practice. A firm’s billing data, for example, contains at least some client confidences (if nothing more, at least the client’s name). A firm should certainly ensure that any accounting firm that it uses will respect confidentiality. But it is unlikely that most firms obtain informed consent in writing from their clients before engaging an accounting firm.

If the LPO will be accessing the hiring firm’s data files, it should be given no greater access than needed.[96] If the LPO is working on only one client’s file, it should not have access to the firm’s other client data. And even within the one client’s file, the LPO should have access only to the data required to perform the task on hand.

As a practical matter, why would a firm not want to disclose the use of an LPO?[97] Presumably, the firm should be retaining the LPO only if it will allow the firm to provide service of at least the same quality standard as before. And it should allow the firm to do so at the same price point as before – maybe the firm will even elect to pass a cost savings along to the client.

Clients simply may not care about how paralegal work is performed within – or as the case may be, outside – the firm. Clients come to a law firm to get a problem competently and effectively solved for a fair cost. They trust the lawyer to use the right tools to get the job done and to safeguard their interests – indeed, that is the core job of the lawyer. But clients are not necessarily interested in the tools used to perform the job, just as one might not care to hear a car mechanic walk through the minutia of a transmission replacement. We “just” want our car to run, and the immigration client “just” wants her future to be secure.

Model Rules 1.2 and 1.4 do not by themselves require disclosure of LPO use in all cases.

While a client sets the goals of a representation, it is the lawyer’s job to understand and choose the best means by which to accomplish that objective. But under Model Rules 1.2 and 1.4, the lawyer must consult with the client about the means by which the representation is accomplished.[98] Does this duty obligate a lawyer to disclose use of an LPO?

Under the ABA’s view, disclosure is required only if the LPO will not have direct supervision from the U.S. firm. Although a client need not be informed of how legal work is delegated within a firm, the ABA has reasoned that a client must be informed if work is sent to an LPO over whom the attorney has no direct control.[99] By contrast, one commentator takes the ABA’s view to be that, “so long as the offshore employee is performing the work under the direct supervision of a domestic lawyer, the firm is under no obligation to disclose the working arrangement to the client.”[100] The Ohio ethics board reasons: “For some clients, a lawyer’s or law firm’s decision to outsource legal or nonlegal support services may be a deciding factor in whether or not to engage the services of the lawyer or the law firm.”[101]

An ethics opinion by the San Diego Bar Association considered this issue, where a two-attorney litigation firm agreed to defend a complex intellectual property dispute.[102] Because the matter was outside their area of legal expertise – and without informing their client – the attorneys paid an India-based firm to perform most of the legal research and writing for the matter. The services were billed to the clients at cost under broad categories such as “legal research” and “preparation of pleadings.” The client discovered the outsourcing only after asking why the representation had been so inexpensive. The Bar Association concluded that the client could reasonably have expected the work to have been performed within the firm, and the attorney therefore should have secured advance approval for the outsourcing.[103]

The New York City bar takes the view that disclosure is not per se required.[104] Instead, disclosure may be required, for example, if one of these factors is present:

(a) non-lawyers will play a significant role in the matter, e.g., several non-lawyers are being hired to do an important document review; (b) client confidences and secrets must be shared with the non-lawyer, in which case informed advance consent should be secured from the client; (c) the client expects that only personnel employed by the law firm will handle the matter; or (d) non-lawyers are to be billed to the client on a basis other than cost, in which case the client’s informed advance consent is needed.

Likewise, the Los Angeles County bar – applying a California ethics rule that differs from its Model Rule counterpart – opines that a client must be informed only if use of an LPO constitutes a “significant development” in the representation.[105]

As discussed above, Model Rule 1.6 does require informed client consent when a firm elects to use an LPO. The prevailing view is that Model Rules 1.2 and 1.4 do not, by themselves necessarily require a lawyer to disclose its use of an LPO.

Lawyers are not required to disclose LPO use in their marketing communications.

Model Rule 7.1 forbids an attorney from making false or misleading statements regarding her services.[106] Could a firm’s marketing materials be made misleading by failing to disclose that a firm outsources some of its work? Further, Model Rule 7.5, governing representations about a law firm’s name, requires that such representations not be false or misleading.[107] Does a firm misrepresent itself if outsourcing attorneys do some or all of the firm’s legal work?

Lawyers can imply that they are practicing together only if that is actually the case.[108] However,

Rule 7.5 is permissive, not mandatory; as such, the focus is on names that firms may NOT use. There are no references requiring attorneys to disclose when non-firm lawyers (or India-based paralegals, for that matter) are employed on a project.[109]

The ABA has opined that Model Rule 7.5 implies that clients are entitled to know who is responsible for their representation.[110] But the ABA articulated that view only with respect to contract lawyers, not in a situation where administrative or clerical work is delegated to nonlawyers staff. Model Rule 7.5 certainly does not require that a law firm’s masthead or marketing material disclose who is on its administrative staff. Indeed, a firm is specifically prohibited from listing a nonlawyer on its masthead.[111]

The correct view is that the firm’s name and marketing material need not reflect its choice to outsource, since it is the firm’s attorneys who shoulder responsibility for the representation.[112] Rather, disclosure is required only at the point a firm is engaged, at which point, under Model Rule 1.6, the client’s informed consent should be obtained.

Screening for conflicts of interest.

Ethics committees unanimously agree that law firms must guard against conflicts of interest when using LPOs. But they disagree – or simply do not articulate – what counts as a conflict of interest when it comes to using LPOs.

What counts as a conflict of interest?

Lawyers must adhere to the strict and well-known rules governing conflicts of interest. But rules do not directly apply to nonlawyers. Instead, under Model Rule 5.3, nonlawyers within a firm must act in a way that is “compatible” with the lawyers’ obligations, including to screen for conflicts. This entails some responsibility to screen LPOs for conflicts, but ethics bodies disagree about what constitutes an impermissible conflict.[113]

Under Model Rule 1.8, attorney conflicts of interest are imputed to lawyers within the same law firm.[114] “Firm” is defined by reference to traditional organizational models of law practices, such as a partnership.[115] Under Model Rule 1.9, a lawyer may not undertake a matter that is “substantially related” to a prior representation in which the parties’ interests are “materially adverse.”[116] Under Model Rule 1.10, conflicts of interest are imputed between lawyers who are “associated in a firm.”[117]

The ABA Committee on Ethics and Professional Responsibility has previously opined that a contract lawyer “represents” a client on whose matter he works for the hiring firm.[118] In other words, a contract lawyer is a “associated” with the hiring firm for purpose of conflicts of interest rules. This means that the contract lawyer freights the hiring firm with the baggage of all his former representations, and would be unable to undertake a “substantially related” matter prohibited under Model Rule 1.9.

But foreign LPO staff – even if they are lawyers in their own jurisdiction – are nonlawyers for the purpose of the Model Rules, even if they are licensed in their own jurisdiction.[119] Indeed, the fact that LPO staff are not lawyers accounts for much of the ethical complexity in using their services.[120] The Model Rules define what constitutes a conflict of interest for an attorney, but not for a nonlawyer. Conflicts of a nonlawyer are not imputed when a new staff member joins a firm.[121] Instead, any obligation to screen for conflicts at an LPO comes from the duty to ensure that nonlawyers act in a way that is “compatible” with a lawyer’s ethical duty.[122]

Ethics opinions have generally failed to articulate a standard for assessing conflicts in LPOs.[123] Take, for example, the advice of the Los Angeles County Bar Association, which was also adopted by the Florida Bar Association:

[T]he attorney should satisfy himself that no conflicts exist that would preclude the representation. The attorney must also recognize that he or she could be held responsible for any conflict of interest that may be created by the hiring of Company and which could arise from relationships that Company develops with others during the attorney's relationship with Company.[124]

That statement is simultaneously intuitively appealing and also completely unhelpful. If the lawyer has a duty to ensure that “no conflicts exist that would preclude the representation,” by what standard do we decide if such a conflict exists?

The most permissive view is that a conflict of interest arises with an LPO only if it is simultaneously working for an opposing party. The Vermont Bar Association, for example, has applied such a standard with regard to contract paralegals:

In certain circumstances, such as when the law firm’s client and the client of another law firm employing the independent paralegal have adverse interests and the independent paralegal is asked to work on the directly conflicting representation, there will be a conflict of interest which would prevent retention of the independent paralegal for working on the particular matter…[125]

This permissive standard has found support by commentators.[126]

The New York City Bar appears to take the view that an impermissible conflict exists if the LPO is currently – or has in the past – performed work for any adverse party.

The outsourcing New York lawyer should also ordinarily ask both the intermediary and the non-lawyer performing the legal support service whether either is performing, or has performed, services for any parties adverse to the lawyer’s client.[127]

Both the Vermont and New York City approaches would be far more permissive than conflict standards governing lawyers and law firms.[128]

The ABA advises that the LPO provider must not work for adversaries of clients “on the same or substantially related matters.”[129] This language invokes the legal standard applicable to duties owed to former clients: an attorney cannot represent a new client in “the same or a substantially related matter” to the former client’s representation.[130] On the other end of the spectrum, one commentator takes the view that it may be possible for an LPO provider to work for both sides in a contested matter, so long as screens were established to segment each side’s information.[131]

Leaving aside the frustrating vagueness in what constitutes a conflict with respect to the LPO provider, commentators and ethics opinions agree that attorneys have a duty to take steps to avoid conflicts.[132] The firm and its LPO provider must have a mechanism in place to screen for conflicts.[133] It may be wise to have the LPO provider complete a conflict check questionnaire to memorialize that the check was performed.[134]

At least one commentator takes the dim view that it is “nearly impossible to screen for conflicts” with foreign LPOs,[135] by which he appears to mean impossible by the standards applicable to a firm itself. Yet it appears something less is required when screening conflicts for the LPO provider. Indeed, the Colorado Bar Association notes that it may actually be easier to screen conflicts for foreign LPOs than for a temporary lawyer working physically at a law firm:

It often will be more feasible to successfully screen Domestic and Foreign Lawyers, who frequently will be physically remote from the hiring lawyer’s office, because they likely will have reduced access to information relating to other clients than would a temporary Colorado Lawyer.[136]

It may take a long-standing relationship for a firm to have confidence that an LPO provider is doing an adequate job of screening conflicts,[137] but that is of little help to a firm that has just become interested in outsourcing.

Profiting from LPO use.

Law firms are businesses. For that reason, firms are ultimately able to use LPOs only if they can be play some role in a firm’s financial success. Just as support staff play a crucial role in a firm’s profitability by allowing lawyers to make best use of their time, LPOs can ethically be used to contribute to a firm’s bottom line.

Model Rule 1.5(a) requires that any legal fee billed to a client be reasonable.[138] At the outset of a representation, the basis for a legal fee must be communicated to the client, preferably in writing.[139]

Generally, discussion of profitability centers around whether a firm may apply a markup to hourly billings from an LPO, as it would when billing for the work of an associate. As a practical matter, these concerns are greatly reduced in the immigration field, where a majority of work is performed on a flat fee basis.

LPOs typically bill attorneys a set amount for a specified service and indeed, other fee structures could violate the prohibition on fee-splitting with non-attorneys.[140] The cost of LPO services may be passed on to clients in at least two ways, and the method makes a difference.

First, the LPO service may be billed to the attorney’s client as an expense item.[141] As an expense item, work by an LPO “is indistinguishable from other types of services that an attorney might purchase, such as hourly paralegal assistance, research clerk assistance, computer research, graphics illustrations, or other services.”[142] If structured this way, ethics bodies generally agree that the client may be billed only for the actual cost of the service plus a share of the firm’s overhead expenses.[143] Yet the ABA seems to suggest the client may be billed only for overhead costs associated with providing the LPO services, which “may be minimal or nonexistent.”[144] The Los Angeles County bar association holds that a firm may add a markup when passing the cost of an LPO service, but must disclose this markup to the client.[145] The Virginia bar takes the same view in a draft opinion.[146]

Second, it may be permissible for an attorney to wrap the cost of outsourcing into a sum billed as a legal fee, subject only to the ultimate reasonableness requirement. This approach is appealing to a firm which may take the benefit of the labor arbitrage, or elect to pass some or all of the cost savings to the client. The New York City Bar rejects this approach on the view that work by a non-lawyer is per se not a legal service.[147] The Ohio ethics board opines that billing LPO costs as a legal fee may be permissible, but that best practices call for billing separately as an expense plus a reasonable share of overhead.[148] Ironically, an inability to mark-up LPO costs might actually increase costs to clients, since it incentivizes a firm to drive work towards in-house lawyers.[149]

Use of an LPO can reflect some of the work – and cost – of legal services delivered for a flat fee. If a firm has customarily charged $X for an adjustment of status cases, there is little question that the firm could continue charging the same rate if it delegated part of the drafting work to an LPO. By analogy, a firm is not required to adjust its rates if it begins to use efficient form-drafting software rather than completing the documents by hand. Indeed, one of the major appeals of flat fees from a law firm’s view is that it captures a benefit from increased efficiencies. Economic use of LPOs can be profitable under this third billing model because it allows the firm to do the same work it has always done, but more efficiently.

Competence.

Lawyers strive to be excellent at our work, but we are ethically required to at least be good enough. Being a competent lawyer includes a duty of due diligence with respect to the tools and staff we use to complete our work.[150] Use of an unqualified LPO could undermine the competency of an attorney’s work, leaving it ethically defective. But this problem can be avoided through proper vetting of an LPO.

Model Rule 1.1 requires that an attorney provide competent representation, which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[151] Work performed on a client matter by an LPO provider must ultimately contribute to a “competent” representation.

North Carolina’s ethics board has opined that “a lawyer must take reasonable steps to determine that the nonlawyer assistant is competent.”[152] But this statement is potentially misleading. No ethics violation obtains if a nonlawyer performs work that would be incompetent by standards to which a U.S. licensed attorney would be held, or even if it falls short of the standards in the nonlawyer’s profession. A lawyer, for example, has not committed an ethical breach if he receives (and rejects with criticism) a poor legal memo from a law clerk. Rather, the representation ultimately provided to the client must be competent. This is largely a matter a matter of how the LPO is supervised.[153] But the U.S. firm does have responsibilities under Model Rule 1.1 with regard to the selection of an appropriate LPO.

Ensuring the competence of an LPO staff is firstly a matter of screening.[154] “For example, the U.S. lawyer could conduct background checks on the foreign lawyers' academic records and previous employments, regular quality control checks, and significant training and sample projects to ensure effective communication of the methods for accomplishing a particular client's objectives for a project.”[155] Foreign LPO workers do not necessarily have to be up to the standards of a U.S. law school graduate, but lower credentials will entail a more higher supervisory responsibility.[156] Reasonable screening might include testing the quality of the LPO’s work with either dummy or closely supervised projects.

LPO ethics checklist.

As discussed throughout the preceding section, there is broad agreement that lawyers may ethically delegate work to off-shore LPOs. The devil, however, is most certainly in the details. This section distills a checklist of considerations that should be addressed by a firm considering off-shoring.

Use of a third-party intermediary can help to lessen the burden of vetting an LPO. Much like a talent scout for temp agency, an LPO intermediary has the expertise and resources to vet an LPO far more thoroughly than most law firms. When using an intermediary, the firm’s burden is primarily to vet the intermediary, rather than the LPO.[157] Assuming the intermediary is U.S.-based, this may be a far easier task.

Choosing an LPO.

  • Review background information about the LPO provider (such as industry reputation);
  • Consider selecting the LPO with the assistance of an intermediary with expertise in vetting such providers.
  • Review a sample of work product, or require the LPO produce a sample using dummy information.
  • Consider the length of time that the LPO has been in business and the stability of its business structure.
  • Consider a site visit to assess compliance with the best practices discussed in this section.

Contracting with the LPO.

  • The law firm and LPO should enter into a written service agreement.
  • Require choice of law and forum provisions requiring disputes be governed by U.S. law and litigated in U.S. courts.
  • Require the LPO maintain a conflicts database with the information customarily collected for such databases within U.S. firms.
  • Require adherence to the best practices set forth in the remainder of this section.

Technological compliance.

  • Client data should be encrypted in transit and at rest.
  • Technology used by the LPO to store client information should adhere to the same standards required if the law firm itself were using the technology.
  • To the greatest extent possible, retain control of client data on your firm’s own secure cloud-based storage solution. Ideally, client data should be stored on LPO-owned storage only to the extent needed to actively work on a matter (for example, a temporary copy of a USCIS form saved on a local computer while a worker is drafting the document).
  • Work stations should be firewalled to prevent unauthorized data transmission.
  • Require that all locally-controlled data be destroyed at the conclusion of a project or task.

Procedural standards for client security.

  • Implement a written confidentiality policy to which LPO staff must adhere, consistent with Model Rule 1.6. Require that the LPO backup the policy with disciplinary sanctions for violations.
  • The facility should be secured with limited access, ideally with biometric and photo identity screening at entrances.
  • LPO staff should not be permitted to take electronic devices to their work station.
  • The facility should adhere to a disposal protocol for all paper documents, including shredding all documents with client information.

Screen the LPO’s staff.

  • Review the resume of the LPO staff assessing educational backgrounds.
  • Require that the LPO conduct reference checks and investigate the background of its staff.
  • Interview the LPO staff involved to ascertain their fit for the contemplated work.
  • Interview supervisors to be involved on the project.
  • Review ethical standards with individuals who will perform work and incorporate the ethical standards into the terms of the contract with the firm.

Workflow procedures and supervision.

  • Require the LPO run and document a conflict check prior to beginning work on a client matter. Any possible conflict hit should be reported to the U.S. firm for review and judgment call. The LPO should not be permitted to engage in the work if currently – or has previously – performed work for an adverse party.
  • Require that LPO staff be disciplined or terminated for improper conduct.
  • Develop a written “office manual” for the LPO, specifying in detail how work is to be performed for the firm.
  • Specify a primary supervisory point of contact at the LPO facility.
  • Have clear task assignments to LPO, so it is clear precisely what work is being delegated.
  • The closer delegated work comes to the practice of law, the higher degree of supervision is required.
  • Consider adopting a cloud-based team communication tool such as Slack.[158] Slack provides “channels” for team members to exchange messages on topical subjects.
  • A particular LPO staff member should be given access to only the client data specifically needed to complete a task.
  • Consider scheduling weekly “standup” meetings with the LPO’s supervisor to discuss workflow management.
  • No work product from the LPO is used without independent review from the U.S. lawyer.

Disclosure to clients.

  • Explain use of an LPO in the law firm’s client engagement letter.
  • Explain the nature of tasks that will be outsourced.
  • The engagement letter should include – or reference – sufficient detail to secure the client’s informed consent to disclosing information to the LPO.
  • Consider providing a link to a web page where the client can learn more about the specifics of the firm’s LPO.
  • For immigration firms performing work for a flat rate, the firm need not adjust its rates after choosing to delegate some case work to an LPO.

Conclusion.

Although it is beyond the scope of this article, being not an ethics issue, a final concern is what we might call the Make America Great Again (MAGA) objection. The MAGA objection holds that LPOs “steal” American jobs when work is sent abroad, since an American might otherwise be performing the work. First, it is especially ironic to hear the MAGA objection from colleagues in the immigration law community. How can one spend a professional lifetime helping individuals from disadvantaged countries start new lives in the U.S., yet cringe at the idea of providing opportunities in the same country of origin? The two perspectives are hard to reconcile.[159]

Second, and more importantly, the MAGA objection is simply false from an economic standpoint. Take the case of a younger solo immigration attorney who spends three hours per day drafting USCIS forms. Depending on the market, that lawyer’s time might be valued between at roughly $200 per hour. If she delegates the drafting work to an India-based LPO for $25, she can recoup three hours of her time with a residual value of $525. That time can be deployed for any number of valuable (to America) purposes, such as performing more client consultations, investing in business development, or performing pro bono legal work for that matter. From an economic standpoint, the worst case scenario is if an lawyer is using her valuable time to perform work that does not require her expertise. In the scenario above, such work costs the American economy $175 for every hour the lawyer is drafting forms.

Finally, a note about innovation in the practice of law.

It is always easiest to do business as usual. Just a few years ago, the lawyers were wary of storing client data in “the cloud” and the skeptical of a “paperless” law practice. Now, both practices are not only permitted, they are strongly advised for lawyers who care about running a client-friendly and efficient practice.

It is unclear whether use of LPOs will ever become as ubiquitous as cloud based data storage. But there is no question that it may be done ethically. The choice of whether to delegate work to an LPO should be based on whether it allows a firm to deliver the outstanding work to its clients. A lawyer does a disservice to herself and to her clients, however, if she hides behind the belief that ethics prevent her from outsourcing.

[1] Greg McLawsen is the managing attorney of Sound Immigration (www.soundimmigratoin.com), America's web-based immigration law firm. Greg is also the founder of Immigration Support Advocates (www.i-864.net), which helps clients around the country recover immigration financial support. Greg has championed the reinvention law practice as Chair of the Solo and Small Practice Section of the Washington State Bar Association and as co-facilitator of Seattle's Legal Technology and Innovation Meetup group. Formerly a member of the WSBA's Future of the Legal Profession Task Force, Greg works to bring innovation into the practice of law. A proponent of alternative legal careers, Greg runs his law firm from the road two months out of the year, from places including Bhutan, Burma, China, Hawaii, India, Laos and Thailand. © Greg McLawsen (2017), all rights reserved.

[2] ABA Formal Op. 08-451 (2008) (internal quotation removed).

[3] ABA Commission on Ethics 20/20, Revised Proposal – Outsourcing (Sep. 19, 2001) (hereinafter ABA Comm. on Ethics 20/20), at 2, available at http://tinyurl.com/mskpbca (last visited May 1, 2017). In the business world, “outsourcing” refers to delegating a particular process to a third party; “offshoring” refers to relocating work processes to capture efficiencies, usually of lower-cost labor. Mary C. Daly and Carole Silver, Flattening the World of Legal Services? The Ethical and Liability Minefields of Off-Shorting Legal and Law-Related Services, 38 Geo. J. Int'l L. 401, 402-03 (Spring 2007).

[4] James I, Ham, Ethical Considerations Relating to Outsourcing of Legal Services by Law Firms to Foreign Service Providers: Perspectives from the United States, 27 Penn St. Int'l L. Rev. 323, 324 (Fall 2008). Off-shoring is appealing to legal service providers in other high-cost countries as well. See, e.g., Australian Office of the Legal Services Commissioner, Outsourcing practice note (undated), available at http://bit.ly/2psOv9u (last visited May 1, 2017).

[5] Cf. ABA Formal Op. 08-451, supra note 2 (“small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support.”).

[6] Debbie Legall, Client Demand for Reduced Bills Is Forcing Law Firms to Think Carefully about the Business Benefits and Ethical Pitfalls of Outsourcing, 64 No. 5 Int’l B. News 57 (Oct. 2010).

[7] Joshua A. Bachrach, Note, Offshore Legal Outsourcing And Risk Management: Proposing Prospective Limitation of Liability Agreements Under Model Rule 1.8(h), 21 Geo. J. Legal Ethics 631, 631 (Summer 2008) (citing Vesna Jaksic, Guidelines for Outsourcing Grow: Three Bar Associations Advise on Fees and Disclosure to Clients, Nat'L L.J., Apr. 30, 2007, at 5).

[8] ABA Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States (2016), at 27, available at http://bit.ly/2aPxTOE (last visited May 1, 2017). On the other hand, even sophisticated legal departments have been slow to adopt LPOs. See Daniel Currell & M. Todd Henderson, Can Lawyers Stay in the Driver’s Seat? 38 Int’l Rev. L. & Econ. 17, 22 (2013) (“over half of the 89 corporate counsel surveyed in early 2012 indicated that they had never used any LPO for any reason”).

[9] See ABA Comm. on Ethics 20/20, supra note 3. The Commission proposed comments to the Model Rules of Professional Conduct to address their application to outsourcing. The only proposed rule revision was to 5.3, clarifying that rules governing supervision of non-attorney assistants applies to service providers such as cloud-computing.

[10] Colo. Bar Ethics Op. 121 (June 16,2009), available at http://bit.ly/2oUtcxA (last visited May 1, 2017); Fla. Bar Ethics Op. 07-2 (Jan. 18, 2008; N. Carolina Bar Ethics Op. 07-12 (Apr. 25, 2008); Los Angeles Co. Bar Ethics. Op. 518 (2006), available at http://bit.ly/2qpt0qa (last visited May 1, 2017); Ohio Bar Ethics Op. 2009-6 (Aug. 14, 2009), available at http://tinyurl.com/lgdecaa (last visited May 1, 2017); San Diego Bar Ethics Op. 2007-1 (2007), available at http://tinyurl.com/nxklxlb (last visited May 1, 2017); NYC Bar Ethics Op. 2006-3 (Aug. 2006), available at http://www2.nycbar.org/Ethics/eth2006.htm (last visited May 1, 2017). See also Virginia Bar Ethics Op. 1850 (Sep. 23, 2010) (draft opinion only), available at http://www.vsb.org/site/regulation/leo-1850 (last visited Apr. 14, 2017).

[11] Ham, supra note 4, at 325.

[12] Brian Miller, The Ethical Implications of Legal Outsourcing, 32 J. Legal Prof. 259, 272 (Spring 2008).

[13] See Florida Bar Ethics Op., supra note 10(“. . . the work delegated to nonlawyer personnel should be so much under the lawyer's supervision and ultimately merged into the lawyer's own product that the work will be, in effect, that of the lawyer himself. . .”). See also Kentucky Bar Ethics Op. E-142 (Mar. 1976) (a lawyer may delegate tasks to a layman so long as they neither constitute the practice of law nor “depersonalize the lawyer-client relationship”).

[14] Outsourcing also raises the specter of tort liability for a firm delegating work, but that topic is beyond the scope of this article. For a discussion of tort liability see Daly and Silver, supra note 4, at 440-44. See also Anne J. Lee, The Legality of State Protectionist Laws Against Legal Process Outsourcing, 11 J. Telecomm. & High Tech. L. 325 (2013) (critiquing state and federal efforts to regulate use of LPOs).

[15] Brandon James Fischer, Note, Outsourcing Legal Services, In-Sourcing Ethical Issues: An Examination of the Ethical Considerations Arising From The Practice Of Outsourcing Legal Services Abroad, 16 Sw. J. Int'l L. 451, 456 (2010). It is helpful to distinguish between domestic and foreign LPO. Domestically, firms may source work to “contract lawyers” or to other professionals such as independent paralegals. See Pete Roberts, Practice Success 101: Contract Lawyering, available at http://tinyurl.com/n83l3x6 (last visited May 2, 2017) (“A contract lawyer enters into an agreement with another lawyer or law firm to do a certain scope of work, work generally for a certain period of time, or both.”).

[16] Fischer, supra note 15, at 457.

[17] NPR On-Air Interview with Puneet Mohey, President of Lexadigm (May 1, 2005), available at http://tinyurl.com/kgd8xzl (last visited Apr. 30, 2017).

[18] Cf. Fisher, supra note 15, at 458 (“Perhaps the most compelling rationale for outsourcing legal services to India is the remarkable cost-savings. Like all businesses, legal practitioners are under constant pressure to cut costs and increase efficiency in order to remain viable within the competitive industry.”).

[19] Traditionally the term “arbitrage” referred to, “the nearly simultaneous purchase and sale of securities or foreign exchange in different markets in order to profit from price discrepancies.” Merriam-Webster, https://www.merriam-webster.com/dictionary/arbitrage (last visited Apr. 29, 2017). Cost arbitrage refers to capturing savings from locating a business’s cost centers in lower cost locations. See Currell, supra note 8, at 24.

[20] Fischer, supra note 15, at 459.

[21] Martha A. Mazzone, Ethics Rules Require Close Supervision of Offshore Legal Process Outsourcing, 55 Boston Bar J. 25, 26 (Winter 2011).

[22] Ham, supra note 4, at 330.

[23] For further discussion of this point see the “Make America Great Again” objection discussed in the conclusion to this article. See Section V.

[24] Fischer, supra note 4, at 460.

[25] Cf. Carlo D’Angelo, Overseas Legal Outsourcing and the American Legal Profession: Friend or “Flattener”? 14 Tex. Wesleyan L. Rev. 167, 177 (Spring 2008) (“Although this sort of potential conflict [where a contractor s doing simultaneous work for an adverse party] is certainly problematic, it should be noted that it is just as likely to occur in a domestic legal outsourcing relationship as well as in an offshore one”). Practitioners may be surprised to learn that even technological service providers – such as cloud storage businesses – may be governed by the same rules that apply to LPOs. San Diego Bar Ethics Op. 2007-1, supra note 10.

[26] The Model Rules are accessible free of cost at http://tinyurl.com/4omg5ch (last visited May 1, 2017). Citations to legal ethics opinions have been standardized, rather than relying on the differing citation formats used by the bodies the opinions.  

[27] An article on recently successful efforts to combat notario fraud in Washington State is forthcoming by this author and will be available in this publication.

[28] Model Rule 5.5 (“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so”). Thus, “a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.” Model Rule 5.5, cmt. [1].

[29] Model Rule 8.4(a).

[30] Cf. Preamble to Model Rules.

[31] See, e.g., Geo. Bar Ethics Op. 21 (Sep. 16, 1977) (describing tasks that may ethically be delegated to nonlawyers); Ala. Bar Ethics Op. 73-1 (Oct. 6, 1973) (delegating tasks to lay staff, “is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product”).

[32] ABA Formal Op. 08-451, supra note 2, at 6 (use of LPO would violate Rule 5.5 only if the LPO's work was itself the unauthorized practice of law); Colo. Bar Ethics Op. 121, supra note 10, at 5 (noting that, “ethics opinions from other jurisdictions hold that, as long as the lawyer supervises and remains responsible for the activities of the [LPO’s] nonlawyer, those activities do not constitute the unauthorized practice of law”); Fla. Bar Ethics Op. 07-2, supra note 10 (“It is the obligation of the attorney to determine whether activities (legal work) being undertaken or assigned to others might violate Rule 4-5.5 and any applicable rule of law”); L.A. Co. Bar Ethics Op. 518, supra note 10, at 3 (lawyer would be impermissibly aiding in the unauthorized practice of law only if she delegated “a decision-making function that is non-delegable”); NYC Bar Ethics Op. 2006-3, supra note 10, at 2 (lawyer can avoid impermissibly aiding in the unauthorized practice of law so long as appropriate precautions are taken); N. Car. Bar Ethics Op. 2007-12, supra note 10 (use of an LPO would violate Rule 5.5 if the LPO provided legal services directly to the law firm’s client); Ohio Bar Ethics Op. 2009-6, supra note 10, at 3 (declining to address whether use of a specific LPO involves the unauthorized practice of law); San Diego Bar Ethics Op. 2007-1, supra note 10 (use of LPO does not aid in the unauthorized practice of law where, “the company to whom work was outsourced has assisted the California lawyer in practicing law in this state, not the other way around”); Virginia Bar Ethics Op. 1850 (draft), supra note 10, at 5 (to avoid aiding in the unauthorized practice of law, “the lawyer must, by applying professional skill and judgment, first set the appropriate scope for the nonlawyer's work and then vet the nonlawyer's work and ensure its quality”).

  1. See also Ala. Bar Ethics Op. 1990-04 (1990) (legal research services offered by law students to law firms, rather than to public at large, did not appear to violate ethics rules regardless of whether they might constitute the practice of law if offered to the public).

[33] NYC Bar Ethics Op. 2006-3, supra note 10.

[34] San Diego Bar Ethics Op. 2007-1, supra note 10.

[35] Daly and Silver, supra note 3, at 408.

[36] Cf. Tuft, Mark L. Tuft, Supervising Offshore Outsourcing of Legal Services in a Global Environment: Re-Examining Current Ethical Standards, 43 Akron L. Rev. 825, 832-40 (2010) (summarizing and analyzing ethics opinions).

[37] In re Opinion 24 of Committee on Unauthorized Practice of Law, 607 A.2d 962 (N.J. 1992).

[38] Ham, supra note 4, at 329.

[39] NYC Bar Ethics Op. 2006-3, supra note 10.

[40] Id.

[41] Ham, supra note 4, at 329.

[42] See, e.g., Utah Bar Ethics Op. 02-07 (Sep. 13, 2002) (“Utah lawyers may hire outside paralegals on an independent contractor basis, provided the paralegal does not control the lawyer’s professional judgment”).

[43] Restatement (Third) of The Law Governing Lawyers (2012), § 4 (cmt. g) (“In the course of [work for a firm], a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice”); Ham, supra note 4, at 329 (“As long as the [U.S.] lawyer retains full control over the representation of the client and exercises independent judgment in reviewing the draft work, the unauthorized practice of law issue is avoided because the outsource company is assisting the lawyer in carrying out his duties, not performing the duties itself”).

[44] See Ham, supra note 4, at 330.

[45] See, e.g., Greg Boos, Techno-Ethics: Rapid and Vast Technology Advances Drive Modest Changes to Ethics Rules, 18 Bender’s Immgr. Bull. 133 (Feb. 1, 2013).

[46] Model Rule 1.7(c) “requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Model Rule 1.7, cmt. 18. Local, state or federal laws – such as the Health Insurance Portability and Accountability Act of 1996 (HIPPA) – may place additional restrictions on the transmission of client data. See Ham, supra note 4 at 334-35. But those issues are beyond the scope of this article.

[47] Darya V. Pollak, “I’m Calling My Lawyer… In India!”: Ethical Issues in International Legal Outsourcing, 11 UCLA J. Int’l L. & Foreign Aff. 99, 124 (Spring 2006).

[48] ABA Formal Op. 08-451, supra note 2, at 6 (the lawyer must, “recognize and minimize the risk that any outside service provider may inadvertently – or perhaps even advertently – reveal client confidential information to adverse parties or to others who are not entitled to access”); Colo. Bar Ethics Op. 121, supra note 10, at 5 (although not directly addressing the data security concerns of LPO use, noting that “more attenuated the relationship between the Colorado Lawyer and the outsourcing services, “[t]he more careful the lawyer must be in communications”); Fla. Bar Ethics Op. 07-2, supra note 10 (citing instances of data breach at business outsourcing firms, and noting that firms must take appropriate safeguards); L.A. Co. Bar Ethics Op. 518, supra note 10, at 4 (“It is incumbent upon the attorney to ensure that client confidences and  secrets are protected, both by the attorney and by Company, throughout and subsequent to the attorney’s contract relationship with Company”); N. Car. Bar Ethics Op. 2007-12, supra note 10 (“The lawyer also must use reasonable care to select a mode of communication that will best maintain any confidential information that might be conveyed in the communication”); Vir. Bar Ethics Op. 1850 (draft), supra note 10, at 5 (“If the information outsourced will be transmitted electronically, the lawyer should be mindful of and receive assurance that the security risks inherent in electronic transmittal of confidential information are controlled”). Some ethics opinions on LPOs do not directly address the information security issue. See NYC Bar Ethics Op. 2006-3, supra note 10 (addressing informed consent requirement of Rule 1.6, but not analyzing information security issues; Ohio Bar Ethics Op. 2009-6, supra note 10 (same); San Diego Bar Ethics Op. 2007-1, supra note 10 (addressing whether use of an LPO is a “significant development” in a representation that requires the client to be informed, but not addressing information security issue).

[49] For an excellent discussion see Boos, supra note 45.

[50] Cf. id.

[51] Id.

[52] ABA Formal Op. 08-451, supra note 2.

[53] Fla. Bar. Ethics Op. 07-02, supra note 10.

[54] See, e.g., Ham, supra note 4, at 337 (“For document review services, a law firm should consider hosting documents on third-party servers that are secure and provide limited access to the personnel working on the matter.”).

[55] Pollak, supra note 47 at 123 (“Because outsourced lawyers lack access to the U.S. firm's network or files, they are unlikely to be able to obtain (and, by extension, disseminate) confidential information. In many cases, the outsourced lawyer may not even know who the client is”).

[56] See www.goclio.com.

[57] NYC Bar Ass’n Comm. On Prof. Resp., Report on the Outsourcing of Legal Services Overseas (2007) (hereinafter NYC Ethics Report), 7, available at http://bit.ly/2ows1ml (last visited Apr. 13, 2017) (“some non-U.S. jurisdictions, a government’s ability to seize assets is far more plenary than in the United States, raising concerns about the security of client data.”).

[58] Steven C. Bennett, The Ethics of Legal Outsourcing, 36 N. Ky. L. Rev. 479, 487 (2009) (“The ABA Committee's suggestion of a “personal visit” in some instances, to get a “firsthand sense” of the vendor's operation, may also hold particular force where great concerns for confidentiality appear.”) (citation omitted).

[59] Mazzone, supra note 21, at 28-29.

[60] Ham, supra note 4, at 336.

[61] NYC Ethics Report, supra note 57, at 6.

[62] ABA Formal Op. 08-451, supra note 2, at 5.

[63] See Ham, supra note 4, at 336.

[64] See NYC Bar Formal Op. 2006-3, supra note 10.

[65] See, e.g., id. at 5 (“the lawyer must understand any material differences between the U.S. legal system and the foreign legal system in which the foreign professional has been trained, including the extent to which any differences may affect the protection of confidences and supervision of the legal services to be provided.”). For a comparison of different countries regulations that impact LPOs, see Jack Bussell, Comparison of the Application of Ethical Duties of Foreign Legal Process Outsourcing, 27 Geo. J. Legal Ethics 435, 450 (2014).

[66] Ham, supra note 4, at 336. See also, D’Angelo, supra note 25, at 178 (“Since there are no data privacy protection laws in place in countries like India, and U.S. federal laws are inapplicable in such overseas cases, it may be difficult to obtain a remedy in case of a possible breach of confidentiality”) (citation omitted).

[67] D’Angelo, supra note 25, at 178.

[68] See Fla. Bar Ethics Op. 07-02, supra note 10 (“In light of such differing rules and regulations, an attorney should require sufficient and specific assurances (together with an outline of relevant policies and processes) that the data, once used for the service requested, will be irretrievably destroyed, and not sold, used, or otherwise be capable of access after the provision of the

contracted-for service.”).

[69] Cf. Aaron R. Harmon, The Ethics of Legal Process Outsourcing – Is the Practice of Law a “Noble Profession,” or is it Just Another Business?  13 J. Tech. L. & Pul’y 41, 63 (June 2008) (“By downplaying these concerns, LPO providers betray a fundamental misunderstanding of the roles that ethics and professional responsibility play in the U.S. legal profession”).

[70] Fischer, supra note 15, at 464.

[71] See, e.g., ABA Formal Op. 08-451, supra note 2 at 3; Colo. Bar Ethics Op. 121, supra note 10, at 5 (noting only that lawyers should “consider the potential application” of Rule 5.3); Fla. Bar Ethics Op. 07-2, supra note 10 (“Attorneys who use overseas legal outsourcing companies should recognize that providing adequate supervision may be difficult when dealing with employees who are in a different country”); NYC Bar Ethics Op. 2006-3, supra note 10, at 2 (a lawyer “must be both vigilant and creative in discharging the duty to supervise [an LPO]”); N. Car. Bar Ethics Op. 2007-12, supra note 10 (discussing factors to assess adequacy of supervision for an LPO); Ohio Bar Ethics Op. 2009-6, supra note 10, at 8 (“The extent of supervision for outsourced services is a matter of professional judgment for an Ohio lawyer, but requires due diligence as to the qualifications and reputation of those to whom services are outsourced and as to whether the requested”); San Diego Bar Ethics Op. 2007-1, supra note 10 (noting that the “degree of supervision warranted for outsourced work was magnified by the work being performed in India,” and offering considerations for adequate supervision); Vir. Bar Ethics Op. 1850 (draft), supra note 10, at 4 (to ensure competence of representation, an LPO’s work must be adequately supervised).

[72] See, e.g., NYC Bar Ethics Op. 2006-3, supra note 10 (“…given the hurdles imposed by the physical separation between the New York lawyer and the overseas non-lawyer, the New York lawyer must be both vigilant and creative in discharging the duty to supervise”). See also Mich. Bar Ethics Op. RI-363 (June 28, 2013) (“A lawyer's ethical responsibilities with respect to nonlawyer personnel working under the lawyer's supervision are the same regardless of whether a nonlawyer assistant is an employee of the lawyer or the lawyer's law firm, an independent contractor or an employee of a separate entity”).

[73] Put simply, “A lawyer must supervise and control what is done in the lawyer’s name.” Ore. Bar Ethics Op. 2005-20 (2005).

[74] Model Rule 5.1(b).

[75] Model RPC 5.3(a) (a lawyer with managerial authority in a firm, “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer”) (emphasis added). See also Model Rule 5.3(b) (a lawyer with direct supervisory control over a nonlawyer “shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer”) (emphasis added).

[76] See Table 1, The Supervisory responsibilities of an attorney; Model Rule 5.1(c) (lawyers); Model Rule 5.3(1) (nonlawyers).

[77] San Diego Bar Ethics Op. 2007-1, supra note 10, at 4; NYC Bar Ethics Op. 2006-3, supra note 10. See also Indiana Bar Ethics Op. 1994-4 (1994) (use of contract paralegals is not prohibited so long as requirements of rule 5.3 are met).

[78] See generally Tuft, supra note 36, at 827.

[79] Id., at 841.

[80] L.A. Co, Bar Ass'n. Op. 518, supra note 10, at 8-9.

[81] ABA Formal Op. 08-451, supra note 2, at 2-3. See also N. Car. Bar Ethics Op. 2007-12, supra note 10 (“In supervising the foreign assistant, the lawyer must review the foreign assistant's work on an ongoing basis to ensure its quality; have ongoing communication with the foreign assistant to ensure that the assignment is understood and that the foreign assistant is discharging the assignment in accordance with the lawyer's directions and expectations; and review thoroughly all work-product of foreign assistants to ensure that it is accurate, reliable, and in the client's interest.”).

[82] San Diego Bar Ethics Op. 2007-1, supra note 10, at 5.

[83] Id.

[84] Ham, supra note 4, at 329.

[85] Ohio Bar Ethics Op.2009-6, supra note 10, at 8. The ABA suggests that the on-site visit might examine not only the LPO’s premise security, but examine its recycling and refuse procedures. ABA Formal Op. 08-451, supra note 2, at 3.

[86] Harmon, supra note 69, at 67 (“…communication serves the same function in LPO as it does within the law firm: if the LPO worker takes the wrong direction early in the project, an attentive supervising attorney can redirect them, losing less productive time than had the attorney waited to receive a final product wholly unsuited to her needs”); Vir. Bar Ethics Op. 1850 (draft), supra note 10 (“. . . the lawyer needs to review the nonlawyer's work on an ongoing basis to ensure its quality, the lawyer must maintain ongoing communication to ensure that the nonlawyer is discharging the assignment in accordance with the lawyer's directions and expectations. . .”).

[87] Joshua A. Bachrach, Note, Offshore Legal Outsourcing and Risk Management: Proposing Prospective Limitation of Liability Agreements Under Model Rule 1.8(h), 21 Geo. J. Legal Ethics 631, 644 (Summer 2008).

[88] See, e.g., Ohio Op.2009-6, supra note 10. See also Harmon, supra note 69, at 73 (“…a strict interpretation of both Rule 1.2(a) and Rule 1.4(a)(2) supports (or could support) the conclusion that consent to employ non-firm attorneys is not implied by retaining a particular attorney or firm and that, therefore, consultation would be required”).

[89] Model Rule 1.6(a). See also Model Rule 1.6(b) (setting forth further grounds for disclosure). The scope of information protected by Rule 1.6 is extremely broad, encompassing even information contained in the public record. See Jamila Johnson, Pillow Talk; The Obligations of RPC 1.6, 66 No. 11 Wash. St. B. News 11 (Nov. 2012), available at http://tinyurl.com/lqrmp52 (last visited May 2, 2017).

[90] In discussing concerns of confidentiality, commentators sometimes focus on safeguarding client “secrets” as something different from confidential information. See, e.g., Alan Feigenbaum, The Ethics of Outsourcing, 80-Sep. NY. St. B. J. 48 (Sep. 2008). That disjunction confuses the analysis, since virtually all client information is protected by Model Rule 1.6, regardless of whether a client considers it to be secret or especially private.

[91] ABA Formal Op. 08-451, supra note 2, at 5 (“where the relationship between the firm and the individuals performing the services is attenuated, as in a typical outsourcing relationship, no information protected by Rule 1.6 may be revealed without the client’s informed consent”); Colo. Bar Ethics Op. 121, supra note 10, at 3 (adopting standard described in ABA Formal Op. 08-451); Fla. Bar Ethics Op. 07-2, supra note 10 (“The committee believes that the law firm should obtain prior client consent to disclose information that the firm reasonably believes is necessary to serve the client’s interests”); NYC Bar Ethics Op. 2006-3, supra note 10 (“We conclude that if the outsourcing assignment requires the lawyer to disclose client confidences or secrets to the overseas non-lawyer, then the lawyer should secure the client’s informed consent in advance”); N. Car. Bar Ethics Op. 2007-12, supra note 10, at 2 (“the lawyer has an ethical obligation to disclose the use of foreign, or other, assistants and to obtain the client's written informed consent to the outsourcing”); Ohio Bar Ethics Op. 2009-6, supra note 10, at 3 (“this Board’s advice is that… a lawyer is required to disclose and consult with a client and obtain informed consent before outsourcing legal or support services to lawyers or nonlawyers”); Vir. Bar Ethics Op. 1850 (draft), supra note 10, at 5 (“if the lawyer is  outsourcing legal work to a lawyer or nonlawyer who is not directly associated with the lawyer or the law firm that the client retained, then there must be informed consent from the client”). But see Colo. Formal Op. 121, supra note 10, 3 (informed consent of the client is required if the relationship between the U.S. lawyer and LPO is “attenuated”). By contrast, the Florida ethics committee feels disclosure is not required in scenarios here no client confidences are in released, such as in using a legal research services. Fla. Ethic Op. 07-02, supra note 10.

[92] Ohio Bar Ethics Op. 2009-6, supra note 10, at 4.

[93] ABA Formal Op. 08-451, supra note 2, at 5 (concluding implied authorization “does not extend to outside entities or to individuals over whom the firm lacks effective supervision and control”). Oddly, the Opinion suggests elsewhere that an attorney has a higher standard of care when supervising LPO providers. Id. at 3, n. 2. If a higher standard of supervision is required for overseeing LPO providers, why would implied consent not obtain as it does for the use of contract attorneys working within a firm?

[94] Colo. Bar Ethics Op. 121, supra note 10.

[95] Vir. Bar Ethics Op. 1850 (draft), supra note 10, 6.

[96] See Fla. Ethics Op. 07-02, supra note 10 (“The committee believes that the law firm should instead limit the overseas provider's access to only the information necessary to complete the work for the particular client.”).

[97] Cf. Pollak, supra note 47, at 135 (“…U.S. firms may wish to tout outsourcing arrangements as a cost saving “plus” for clients. Firms that pass the savings of an outsourced lawyer on to their clients (rather than utilize outsourcing to cut internal costs and protect profits) will likely disclose the use of an outsourced lawyer through their billing process, since the outsourced lawyer's time will be billed at a lower rate”).

[98] Model RPC 1.4(a)(2) (an attorney must “reasonably consult with the client about the means by which the client's objectives are to be accomplished”); Model Rule 1.2(a) (a lawyer has the duty to consult with the means by which the client’s objectives are pursued).

[99] ABA Formal Opinion 08-451, supra note 2; ABA Commission on Ethics 20/20, supra note 9, at 4.

[100] D’Angelo, supra note 25 at 179.

[101] Id., at 4.

[102] San Diego Bar Ethics Op. 2007-1, supra note 10.

[103] Id. at 3.

[104] See NYC Bar Ethics Op. 2006-3, supra note 10 (“Non-lawyers often play more limited roles in matters than contract or temporary lawyers do. Thus, there is little purpose in requiring a lawyer to reflexively inform a client every time that the lawyer intends to outsource legal support services overseas to a non-lawyer”).

[105] L.A. Co. Bar Ethics Op. 518, supra note 10.

[106] Model Rule 7.1 (“…A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading”).

[107] Model Rule 7.5(a).

[108] Model Rule 7.5(d).

[109] Harmon, supra note 69, at 72.  See also ABA Formal Op. 88-356 (Model Rule 7.5 does not itself require disclosure to client regarding use of contract lawyers, so long as they are supervised by lawyers of the hiring firm).

[110] ABA Formal Opinion 88-356 (Dec. 16, 1988) (Temporary Lawyers).

[111] Model Rule 7.5, cmt. [1].

[112] Fischer, supra note 15, at 472 (opining there would be no violation of Model Rule 7.5).

[113] Colo. Bar Ethics Op. 121, supra note 10, at 6 (“…the hiring Colorado Lawyer must determine (a) whether the temporary lawyer has a conflict in performing work to be delegated, and (b) whether the temporary and hiring lawyers are ‘associated in a firm’ under Colo. RPC 1.10(a) such that all the clients of the hiring lawyer or firm are deemed to be the temporary lawyer’s clients, and vice versa, for conflict imputation purposes.”); Fla. Bar Ethics Op. 07-2, supra note 10 (adopting view of L.A. Co. Bar Ethics Op. 518); L.A. Co. Bar Ethics Op. 518, supra note 10, at 4 (“…the attorney should satisfy himself that no conflicts exist that would preclude the representation”); NYC Bar Ethics Op. 2006-3, supra note 10, at 2 (“The outsourcing New York lawyer should also ordinarily ask both the intermediary and the non-lawyer performing the legal support service whether either is performing, or has performed, services for any parties adverse to the lawyer’s client”); N. Car. Bar Ethics Op. 2007-12, supra note 10 (“When utilizing foreign assistants, the lawyer must ensure that procedures are in place to minimize the risk that confidential information might be disclosed… Included in such procedures should be an effective conflict-checking procedure”)’ Ohio Bar Ethics Op. 2009-6, supra note 10, at 1-2 (noting that the level of supervision required of LPOs requires due diligence regarding avoiding conflicts of interest); Vir. Bar Ethics Op. 1850 (draft), supra note 10, at 5 (“Outsourcing may also require a conflicts analysis under Rules 1. 7 and I. 9, which require loyalty to current and former clients and duties to protect their information”). Some of the ethics opinions that address LPOs do not analyze the conflict of interest issue. ABA Formal Op. 08-451, supra note 2.

[114] Model Rule 1.8(k).

[115] Model Rule 1.0(c). But the ABA has interpreted “lawyers in a firm” – as used in Model Rule 5.1 governing supervisory duties – to include attorneys working for an LPO. ABA Formal Op. 08-451, supra note 2, at 3 n. 2

[116] Model Rule 1.9(a). It may not always be an easy matter for an off-shore provider to know when a client of the hiring firm has transitioned from current to former client. Pollak, supra note 97, at 130 (“Since the outsourced lawyer and middleman firm are hired for discrete projects, they have no way of knowing if clients of the U.S. firms they service remain present clients or have become former clients. A bi-national out-sourcing agreement could resolve this complicated problem by a blanket determination that all clients of a U.S. firm assume the status of former clients of the middleman firm and outsourced lawyer immediately upon completion of each discrete assignment.”).

[117] Model Rule 1.10(a). Cf. Fischer, supra note 15 at 466 (“Although a Comment to Rule 1.10 provides a definition for a “firm,” it fails to go beyond the traditional model of domestic legal representation. Therefore, in the context of legal outsourcing, the current text of Rule 1.7 seems to raise more questions than answers with respect to LPO.”) (citation omitted).

[118] ABA Formal Op. 88-356, supra note 2.

[119] Harmon, supra note 4, at 68 (“The analogy between temporary attorneys and LPO workers is fundamentally problematic, however, as both Indian paralegals and attorneys are non-lawyers for purposes of the Model Rules”).

[120] For example, the concern over supervising individuals who are not directly beholden to the ethical strictures of licensed lawyers in the United States.

[121] See NYC Bar Ethics Op. 2006-3, supra note 10.

[122] See Daly and Silver, supra note 3, at 439 (noting summarily that rules governing conflicts within a firm “is a likely template for identifying the conflicts dilemmas springing from the offshoring of legal services to foreign lawyers”).

[123] See, e.g., NYC Bar Ethics Op. 2006-3, supra note 10 (explaining steps to be taken to assess conflicts, but articulating no rule for identifying impermissible conflicts); L.A. Co. Bar Op. 518, supra note 10 (same); Ind. Bar Ethics Op. 2000-3 (2000) (for a contract paralegal, “the Committee concludes that the purposes of both the conflict of interest rules and the confidentiality rules would be subverted by allowing an attorney to engage a contract paralegal to work on a particular client matter when such paralegal is simultaneously working for a firm which represents an opposing party”).

[124] L.A. Co. Bar Ethics Op. 518, supra note 10, at 4 (citation omitted); Fla. Bar Ethics Op. 07-2, supra note 10.

[125] See also Ver. Bar Ethics Op. 2002-02 (2002)(emphasis added). See also Ken. Bar Ethics Op. E-318 (Jan. 1987) (in the case of an independent research service, “there is no independent duty of loyalty which would prevent the research service from under taking a research project against a person for whom the research service is working on an unrelated matter”).

[126] See Ham, supra note 4 at 333 (“A contract company working (through the law firm) on behalf of one party in a dispute should not simultaneously perform work on behalf of the opposing party or that party's counsel.”).

[127] NYC Bar Ethics Op. 2006-3, supra note 10 (emphasis added). See also, NYC Ethics Report, supra note 57, at 9 (“the lawyer should also determine whether the intermediary and the foreign professionals who will perform the work are providing, or have provided, services to any parties who are adverse to the lawyer’s client.”).

[128] An impermissible conflict occurs if an attorney will be “materially limited” by his responsibilities to a third party, imposing a scope of potential conflicts far beyond the parties to a matter.  Model Rule 1.7(a)(1).

[129] ABA Formal Op. 08-451, supra note 2, at 5.

[130] Model Rule 1.9(a).

[131] Ham, supra note 4 at 339.

[132] NYC Bar Ethics Op. 2006-3, supra note 10.

[133] Id. See also, Ham supra note 4, at 333 (“Before retaining an overseas company, a law firm should inquire into, and be reasonably comfortable with, the company's conflict of interest and record-keeping procedures concerning all matters worked on, and the personnel assigned to them. . . The sufficiency of the answers may give some indication as to whether this issue is taken seriously by the company.”).

[134] See NYC Ethics Report, supra note 57 at 10 (“To assist in fulfilling this obligation, the lawyer may wish to develop a conflict questionnaire for use in situations in which he or she wishes to outsource work offshore, and make as a requirement of any retention of the foreign professional completion and satisfaction of the conflicts check questionnaire.”).

[135] Fischer, supra note 15, at 466.

[136] Colo. Bar Ethics Op. 121, supra note 10, at 6

[137] Bennett, supra note 58, at 486 (“Where the law firm, client and vendor have long-standing relations. . . the supervising lawyer may have greater confidence in the vendor's efforts to avoid conflicts of interest.”).

[138] Model Rule 1.5(a) (“an attorney “shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses”).

[139] Model Rule 1.5(b).

[140] L.A. Co. Bar Ethics Op. 518, supra note 10.

[141] For the view this approach is required see NYC Bar Ethics Op. 2006-3, supra note 10.

[142] L.A. Co. Bar Ethics Op. 518, supra note 10, 2.

[143] ABA Formal Op. 08-451, supra note 2, at 6.

[144] Id.

[145] L.A. Co. Bar Op. 518, supra note 10.

[146] Virginia Bar Ethics Op. 1850 (draft), supra note 10, at 8.

[147] NYC Bar Ethics Op. 2006-3, supra note 10 (“Absent a specific agreement with the client to the contrary, the lawyer should charge the client no more than the direct cost associated with outsourcing, plus a reasonable allocation of overhead expenses directly associated with providing that service”).

[148] Ohio Bar Ethics Op.2009-6, supra note 10, at 11-12.

[149] Cf. Morris A. Ratner, Profit for Costs, 63 DePaul L. Rev. 587, 602-605 (2014).

[150] Boos, supra note 45.

[151] Model Rule 1.1.

[152] See N. Car. Bar Ethics Op. 2007-12, supra note 10; Virginia Ethics Op. 1850 (draft), supra note 10 (“To satisfy the duty of competence, a lawyer who outsources legal work must ensure that the tasks in question are delegated to

individuals who possess the skills required to perform them and that the individuals are appropriately supervised to ensure competent representation of the client.”).

[153] See, e.g., NYC Bar Ethics Op. 2006-3, supra note 10 (“Proper supervision is also critical to ensuring that the lawyer represents his or her client competently… obviously, the better the non-lawyer’s work, the better the lawyer’s work-product”).

[154] Cf. Bennett, supra note 58, at 483-84 (under the ABA’s guidance, “the keys to effective supervision include: pre-hiring inquiry into the capabilities of the vendor, regular communication during the course of the project, some form of quality control, and other reasonable steps to ensure that services are rendered competently to the client.”).

[155] Bachrach, supra note 87, at 640. See also Ham, supra note 4, at 331 (“A lawyer should obtain reliable information about various aspects of the company's operations, including: (a) the identities of the principal owners and their qualifications; (b) staff expertise and qualifications; (c) length of time in business; (d) policies and procedures, including policies on the handling of client confidential information; (e) information technology and security systems; (f) lawsuits and claims pending or previously asserted against the company; (g) credit history; (h) sample work product; and (i) stateside and local references.”).

[156] ABA Formal Op. 08-451, supra note 2, at 4 (“The lack of rigorous training or effective lawyer discipline does not mean that individuals from that nation cannot be engaged to work on a particular project. What it does mean is that, in such circumstances, it will be more important than ever for the outsourcing lawyer to scrutinize the work done by the foreign lawyers – perhaps viewing them as nonlawyers – before relying upon their work in rendering legal services to the client.”).

[157] Vir. Bar Ethics Op. 1850 (draft), supra note 10, at 5 (“The use of an intermediary company. . . may help to assure the credentials of the professionals performing the work; however, the law firm needs to check the intermediary company's references to ensure that the company's practices and supervisory procedures are compatible with the lawyer's responsibilities. In addition, the intermediary should produce references and a resume or curriculum vitae, etc., for the individual lawyers and nonlawyers who will be providing the services to the law firm.”).

[158] www.slack.com.

[159] It should also be noted that, with wages depressed for law graduates, the U.S. itself may be a provider of LPOs to costlier legal markets. See John Okray, Legal Process Outsourcing – Coming to a Practice Area Near You? 60-Sep. Fed. Law. 4 (Sep. 2013) (noting that U.S.-based providers located in the Midwest may charge $25-35/hour for basic legal services).