Direct Supervisory Authority And Making Systematic And Rigorous Legal Process Outsourcing Decisions 1

Direct Supervisory Authority And Making Systematic And Rigorous Legal Process Outsourcing Decisions

By LPO Carmona Founder, Jennifer Trinidad

February 4, 2014

The American Bar Association and other bar associations command that a lawyer must exercise direct supervisory authority over an offshore legal process outsource provider.[1]   Direct supervisory authority is not by ABA Model Rules 1.1 and 5.3[2]. However, other secondary authorities have defined the phrase as:

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[1] See ABA Committee on Ethics and Professional Responsibility Formal Opinion 08-451 (2008); Ethics of Legal Outsourcing White Paper By Mark Ross, Published on February 14, 2010; The Ethics Of Legal Outsourcing, Steven C. Bennett; San Diego County Bar Association, Ethics Opinion 2007-1; Supreme Court of Ohio, Board Of Commissioners On Grievances And Discipline; North Carolina, 2007 Formal Ethics Opinion 12; Informational Packet Outsourcing Paralegal Work, The Florida Bar Ethics Department; The Association Of The Bar Of The City Of New York Committee On Professional And Judicial Ethics Formal Opinion 2006-3; American Bar Association Model Rules Of Professional Conduct http://www.abanet.org/cpr/mrpc/mrpc_toc.html; American Bar Association Model Rules of Professional Conduct http://www.abanet.org/cpr/mrpc/mrpc_toc.html; Pollak, Darya. "I'm Calling My Lawyer...in India!: Ethical Issues in International Legal Outsourcing." UCLA Journal of International Law and Foreign Affairs 11 UCLA J. Int'l L. & Foreign Aff.99 (2006); Offshore Legal Outsourcing: the Ethical Implications. (Mark Ross MCLE Course handout) Glendale, CA: LawScribe, Inc, 2007; ABA Formal Opinion 00-420 Surcharge to Client for Use of a Contract Lawyer http://www.abanet.org/cpr/pubs/issue_index.html; Rules 1-4, Solicitors' Code of Conduct 2007.

[2] Rule 5.3: Responsibilities Regarding Nonlawyer Assistant

Law Firms And Associations
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law 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;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

Comment on Rule 5.3

Law Firms And Associations
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance - Comment

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Nonlawyers Outside the Firm

[3]  A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client.  Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.  When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.  The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law).  When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.

[4]  Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer.  See Rule 1.2.  When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.