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ABA Ethics Group Issues Working Paper on Outsourcing

The ABA Journal reported yesterday that the organization's Commission on Ethics 20/20 has released a discussion draft of proposed changes to the Model Rules of Professional Conduct, addressing the perennial hot topic of outsourcing.

Well, let me be clear. The draft does not propose changing any of the rules themselves, but just adding to the comments on the rules. Essentially, all the additional comments say is, "If you're gonna do it, do it right." But they say it much purtier. For example, the proposed comment to Rule 1.1:

[7] A lawyer may retain other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client provided the lawyer reasonably concludes that the other lawyers’ services will contribute to the competent and ethical representation of the client. The reasonableness of the conclusion will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal and ethical environment in which the services will be performed. When retaining lawyers and others outside the lawyer’s own firm, the requirements of Rule 5.5 (a) must be observed. When using the work of nonfirm lawyers in providing legal services to a client, a lawyer must also reasonably conclude that such work meets the standard of competence under this Rule. If information protected by Rule 1.6 will be disclosed to the nonfirm lawyers, informed client consent to such disclosure may be required. For example, if the rules, laws or practices of a foreign jurisdiction provide substantially less protection for confidential client information than that provided in this jurisdiction, the lawyer should obtain the client’s informed consent to such disclosure.

The draft report accompanying the proposed changes gives a brief history of legal outsourcing, tells readers how impressed they should be by how much background material the commission looked at before coming up with this draft, and has a throw-in line about how sensitive the commission is to the current job market for lawyers.

The commission chair, Judge Kathryn A. Oberly of the D.C. Court of Appeals says the group is "not wedded" to the proposed draft and is seeking comments from any and all interested parties. I imagine they'll get some from those who think outsourcing is to blame for the lack of opportunities for un- and under-employed attorneys, but I'd be willing to bet that the final version of the proposed amendments looks very similar to this draft.

Personally, I think the proposed rules could benefit from some stronger language about disclosure to clients; if you're using a team of Indian lawyers to work on a summary judgment brief, your client should be in the loop from day one.

Readers: thoughts on the report?

Posted by Eric Lipman on November 24, 2010 at 11:01 AM | Permalink | Comments (2)


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