GPSolo Magazine - December 2004

Techno Ethics
Getting Temporary Legal Help Online

Sometimes, it is hard to get good help, particularly on short notice. Having experienced attorneys on staff who are ready to do legal research and draft pleadings can be expensive and usually requires training and attention to employment and other law firm management issues. Using a lawyer placement agency may not always be efficient or result in finding the right lawyer for the job. An increasing number of law firms are discovering that they can manage their overhead and attorney workload by contracting online for temporary legal work that is performed overseas as well as domestically.

A growing number of companies is offering a broad array of professional services utilizing digital information technology and the Internet to enable lawyers to get help quickly and reduce expenses. Temporary service providers are now available globally around the clock to write briefs, draft pleadings, propound discovery, perform legal research, prepare legal documents, and provide related services at a substantially reduced cost. These virtual—and often unidentified—professional service providers purport to be able to deliver work product on a next-day basis either directly or through an intermediary company.

Much has been written about the ethical considerations in utilizing temporary and contract lawyers. Outsourcing “back-office” functions such as accounting, record keeping, and information management has also become increasingly common.

But what about the ethical consequences of outsourcing legal work electronically? Can the risks be properly managed?

The first thing to find out is who will be providing the services, and where the work will be performed. A number of companies provide legal support services using foreign lawyers and nonlawyers with offices in the United States and abroad. Several of these agencies serve as intermediaries in channeling work requests from the domestic lawyer or law firm to its legal staff in other countries and review the work before delivering the final product.

In contracting online for temporary legal help, a lawyer cannot aid a person or entity in the unauthorized practice of law. Typical “back-office” services, such as information management and litigation support services, are generally not considered the practice of law. However, legal research, brief writing, and preparation of legal documents may constitute the practice of law. What constitutes the practice of law varies from jurisdiction to jurisdiction, and any definition can provide only a general guide as to whether a particular activity is considered the practice of law.

ABA Model Rule 5.5 was recently changed to permit a lawyer admitted in another U.S. jurisdiction to provide legal services on a temporary basis in a jurisdiction in which the lawyer is not admitted to practice in most cases. However, Rule 5.5 is relatively new and has not been universally adopted. The rule also does not extend the same right to lawyers admitted to practice in a foreign jurisdiction, although the ABA has adopted a model rule on “Temporary Practice by Foreign Lawyers,” which closely parallels Rule 5.5.

Some websites disclose that the work will be performed by lawyers licensed in a foreign country, such as India or China. Whether a person qualifies as a “foreign lawyer” is itself an interesting issue, but it does not necessarily answer the question whether the help sought online constitutes authorized legal services. If the person doing the work is not a member of a recognized legal profession in a foreign jurisdiction, the person will likely be considered a “nonlawyer” for purposes of analyzing the ethical consequences of outsourcing the work.

When the services are performed abroad, the lawyer contracting for the work will have to be familiar with the legal requirements for outsourcing services offshore, including data privacy and protection issues, intellectual property issues, and tax, immigration, employment, and export laws that may apply to the particular situation.

In evaluating whether outsourcing legal work electronically is appropriate, the lawyer will also need to evaluate whether the temporary online help will enable the lawyer to fulfill the lawyer’s obligations to the client, particularly the obligation to provide competent representation under Model Rule 1.1.

A lawyer contracting for temporary services online retains the same responsibility to supervise the work as in the case of hiring a temporary or contract lawyer. Model Rule 5.1(a) requires that a partner or other lawyer in the firm with comparable managerial authority make reasonable efforts to ensure that all lawyers in the firm conform to the rules of professional conduct governing the firm’s practice. Rule 5.1(b) further requires that lawyers having “direct supervisory authority” over another lawyer make reasonable efforts to ensure that the other lawyer conforms to the applicable rules of professional conduct, including those governing confidentiality of information relating to the representation of the client.

The difficulty lies in supervising temporary legal help via the web, particularly where the work is channeled through an intermediary agency that utilizes the services of foreign lawyers and nonlawyers. The legal and ethical standards applicable to foreign lawyers will likely differ from the standards applicable to the domestic lawyer contracting for the services, particularly with respect to client confidentiality, the attorney-client privilege, and conflicts of interest.

According to New York State Bar Association Formal Opinion No. 762 (2003), foreign lawyers are considered “nonlawyers” under New York’s supervisory rules. However, the domestic lawyer must reasonably ensure that the foreign lawyers will respect client confidentiality requirements and are competent to handle the matters entrusted to them. The domestic lawyer is also required to make sure that compliance by the foreign lawyer with the applicable rules in the foreign jurisdiction will not expose the U.S. lawyer to a possible violation of the rules in the U.S. lawyer’s jurisdiction.

Another consideration is what, if anything, must the client be told. Whether a lawyer is required to disclose to the client that the law firm is using temporary online legal help will likely depend on the nature of the work that is being outsourced, the reasonable expectations of the client, and the nature of the relationship between the contracting law firm and the temporary service provider. Ethics opinions such as ABA Formal Opinion No. 88-356 (1988) and D.C. Formal Opinion No. 284 (1998) conclude that the use of a temporary lawyer has to be disclosed to the client if the temporary lawyer is not working under the close supervision of the client’s regular lawyer and if the reasonable expectations of the client would require disclosure so that the client is not misled as to who is working on the client’s matter.

Model Rules 1.2(a) and 1.4(a)(2) require that lawyers reasonably consult with their clients about the means by which the client’s objectives will be accomplished. These rules weigh in favor of disclosure of the use of online temporary legal assistance where the services are used frequently and involve significant aspects of the client’s case and where there are risks that the client should know about. The requirement under Model Rule 7.5(d) that a lawyer may not give a client the impression that the lawyer practices with a partnership or other organization when that is not the fact also underscores the policy that the client has the right to know who or what entity is representing the client.

Consideration should also be given as to how the client will be billed for the outsourced legal work. Generally, a law firm retaining the services of a temporary or contract lawyer is not required to pass the cost savings onto the client if the services of the outside lawyer are billed to the client as fees. According to ABA Formal Opinion 00-420 (2000), the law firm may add a surcharge to the cost of the outside services unless the agreement between the lawyer and the client provides otherwise. However, the Opinion further explains that the client would likely expect that the lawyer billing for those services as part of the lawyer’s fee has supervised the work.

If the cost of the outsourced legal work is billed to the client as an expense, the amount billed should represent the actual cost incurred plus any additional expense incurred by the law firm attributable to that item. Thus, cost savings in outsourcing legal work electronically should be passed onto the client unless the arrangement with the legal service provider allows for the services to be billed as part of the lawyer’s fees.

As with most technological advances, getting temporary legal help online is permissible as long as the ethical and legal consequences are sufficiently understood and properly managed. The decision whether to outsource legal services electronically requires careful consideration of the nature of the relationship with the legal service provider, the type of work that is being outsourced and who will do the work, as well as an examination of the controlling jurisdiction’s ethics rules. If the work is performed abroad, an understanding of the legal requirements of outsourcing services internationally will also be required.

 

Mark L. Tuft is a partner with Cooper, White & Cooper, LLP, in San Francisco, where he specializes in representing attorneys and law firms on professional responsibility and liability matters. He is a vice chair of the California State Bar Commission for the Revision of the Rules of Professional Conduct and is an adjunct professor at the University of San Francisco School of Law, where he teaches legal ethics. He is also a co-author of the California Practice Guide on Professional Responsibility. He can be reached at mtuft@cwclaw.com.

 

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