“I have two mediations, three hearings, and a deposition today; I just don’t have time to brief every issue myself.” Most lawyers in America today are likely familiar with the sentiments communicated by the foregoing quote, taken almost verbatim from a recent conversation I had with a lawyer for whom my team and I were drafting a motion for summary judgment.
By virtue of the changes necessitated by the COVID-19 pandemic, almost every litigator in America has become familiar with virtual court appearances, virtual depositions, virtual mediations—indeed, an almost exclusively virtual practice. At the start of the pandemic, some expected that with commuting and travel time eliminated and the usual distractions of an office rendered distant by remote working arrangements, lawyers would have more time to get their work done and therefore have more free time. The exact opposite has happened. Many lawyers are now busier than they were before COVID affected the way we work and practice.1
Most lawyers have heard some variation of Parkinson’s Law, which states that our work will expand to fill the time allotted for its completion.2 The usual illustration of Parkinson’s Law is that if a lawyer has 30 days to file a simple response motion, that lawyer will use the entire 30-day period to complete that response. Most lawyers appear to be facing the contrapositive of Parkinson’s Law, namely, that they are expected to stuff every available second with even more work.
As COVID vaccines make their way into people’s arms, most lawyers are—or should be—looking ahead to how their law practices must adapt to a post-pandemic landscape. One thing is nearly certain: if the workload changes, it will only increase. Lawyers need to be ready. Managing swelling dockets will require managing every lawyer’s most precious resource: time. Luckily, with a bit of preplanning and due diligence, outsourcing certain key legal functions can open up time and allow lawyers to prioritize where to focus themselves in their cases.
Outsourcing vs. Offshoring
Lawyers love to define terms. We thrive on them. It therefore behooves this discussion to define what exactly is meant by “outsourcing.” Put simply, “outsourcing” means hiring a third party to perform a task or function.3 In common parlance, the term “outsourcing” gets conflated with “offshoring,” which entails moving a particular task or function to another country in order to take advantage of lower costs.4 Lawyers are often skeptical about outsourcing a task because they think that it involves sending their work overseas. That is not necessarily true, though some third parties will offshore their work and describe it as being outsourced. Regardless, it is vital to know precisely where a third-party vendor is getting its work done before “outsourcing” any tasks to it.
Strategic Outsourcing for Lawyers
As lawyers, we often pride ourselves on being great at everything: drafting pleadings, researching legal issues, writing briefs, taking depositions, negotiating settlements, preparing for trial, delivering opening and closing arguments, cross-examining witnesses, and arguing cases on appeal. Time, however, forces us to pick and choose our tasks on any given day.
As pandemic restrictions begin to lift and courthouses reopen to in-person proceedings, lawyers will likely face even greater demands on their time, with some hearings and functions remaining online and others requiring travel time to in-person venues. For most lawyers, this will necessitate getting help with key legal functions so that they can stay on task and continue to represent their clients with diligence and attention to detail.
Getting help with legal functions can be especially daunting to lawyers because we are accustomed to exercising control over our cases and doing things “our way.” In the coming months and years, however, “our way” might have to yield to “a new way.” If done correctly, outsourcing can provide a strategic practice-management tool that can help lawyers maintain and even grow their practices while balancing personal commitments and well-being.
Lawyers exploring the possibility of handing off tasks to a third party must consider three overarching questions: (1) what tasks to outsource, (2) whether to hire a vendor or a contractor, and (3) how to select the right solution. This article shall address each of the foregoing questions in turn.
What to Outsource
Ethical considerations. This article addresses the outsourcing of key legal functions, whether performed by lawyers or nonlawyers.5 The thought can be intimidating; the results—if done correctly—can be liberating. Before commencing any further, however, we shall address the proverbial elephant in the room (or, rather, on the page): ethics. Can core legal functions be outsourced ethically? The answer is “yes . . . but.”
Lawyers have been outsourcing legal work since at least the year 2000, as recognized by a federal district court in Sandoval v. Apfel, a social security disability case involving a claim for attorney fees and costs under the Equal Access to Justice Act (EAJA).6 In that case, the court approved a Texas attorney’s use of, and fees claimed for, the brief-writing services of a non-Texas lawyer and that briefing lawyer’s use of a third-party paralegal. The court described the briefing lawyer “as an attorney acting under [the Texas lawyer’s] supervision” and the paralegal as someone “working under the immediate supervision of [the briefing attorney] and the ultimate superintendence of [the Texas lawyer].”7 The key consideration in the court’s decision to approve of the fee request was that the Texas lawyer was not acting as “an automaton” through which the briefing attorney could provide legal advice without proper admission into the host court.8 The court further held that no ethical violation or unauthorized practice of law took place because the briefing lawyer and third-party paralegal provided brief-writing and paralegal services to the Texas lawyer, as opposed to providing direct representation to the client.
The Sandoval decision does not exist in a vacuum. Indeed, in Siraco v. Astrue, the federal district court for the District of Maine recognized—once again, in the social security disability context—that law firms employ variegated models for delivering legal services:
Some lawyers do all their own research; some outsource; some use paralegals; some use law clerks, legal assistants, or interns; probably there are other variations. . . . Law firms should be free to use the most economically efficient model as long as they comply with ethical standards and provide excellent legal representation to their clients.9
In this quoted case, the law firm at issue heavily relied on in-office paralegals, but the observation is not restricted to the use of such support staff or to social security cases.
The federal bankruptcy case of In re Thorne from the U.S. Bankruptcy Court for the Northern District of Mississippi recognized the legitimate use of outsourced third-party paralegal services.10 That case involved a law firm’s use of a third-party paralegal service in the context of representing financial institutions with regard to mortgage servicing.11 The issue was whether the law firm’s payments to the paralegal service constituted illegal fee sharing and the unauthorized practice of law.12 The court held in the negative on both issues.13 The reasoning, however, illuminates the present discussion.
The law firm in Thorne paid the paralegal service under the terms of an agreement between the firm and the service, and those payments were not in any way dependent on the firm collecting fees from its clients.14 The court deemed such an arrangement to not constitute illegal fee sharing. The court went so far as to declare that such an arrangement “is actually no different from a law firm paying other outside vendors or its own employees and paralegals on a periodic basis from earnings that it manages to collect.”15 As to the issue of the unauthorized practice of law, the court noted that (1) the paralegal service used forms created by attorneys at the law firm, (2) those forms could not be altered without the express permission of one of those attorneys, and (3) one of those duly licensed attorneys had “supervised and reviewed” the paralegals’ work in the case at issue.16 The court described the process as being “identical” to the way an in-house paralegal would have been supervised.17 In the court’s words, “[t]he use of paralegal employees, whether outsourced or ‘in house,’ reduces the time that must be devoted by a licensed attorney, and, in turn, reduces the costs to all parties.”18
The ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 08-451 in 2008.19 That opinion recognizes the benefits of outsourcing both legal and nonlegal functions to third parties, provided that the lawyer representing the client (1) maintains responsibility for the tasks that are outsourced, (2) ensures compliance with professional obligations like confidentiality, (3) supervises the function being outsourced, (4) verifies the outsourced provider’s capabilities, and (5) obtains the client’s informed consent for the task being outsourced. In essence, the opinion disallows lawyers from outsourcing a task and simply forgetting about it. Lawyers must, instead, remain vigilant both as to the outsourced provider and as to the specific task being assigned. As for offshoring legal tasks, Opinion 08-451 recognizes the benefits of sending legal work outside of the United States but cautions lawyers to gauge the foreign jurisdiction’s legal industry to ensure that training, oversight, and client privacy are all respected to a similar degree as in the United States. Importantly, however, the opinion does not discourage the use of legal vendors in foreign countries.
The gravamen of the foregoing case law and Opinion 08-451 is oversight. Lawyers who send legal functions outside of their offices must supervise the substance of the work and the processes by which the work is completed. Payment to the outsourced providers must not be contingent on the law firm’s collection of fees lest illegal fee splitting occur. In simple terms, lawyers must always remain ultimately responsible for the matters entrusted to them.
It bears mention, however, that any lawyers who read this article should also check their own state bar rules to make sure that there are no contradictory or additional requirements for a successful and ethical outsourcing arrangement.
Provided lawyers fulfill the aforementioned ethical duties, the question becomes: What core legal tasks can lawyers consider assigning to third parties?
Research and writing. Lawyers love definitions, but we also thrive on disclaimers. So here is a disclaimer up front: my company provides legal research and writing services for law firms and legal departments. While this article is intended to provide objective advice and insights, the foregoing bears mention.
Lawyers at large and midsize law firms are likely familiar with the practice of assigning research and writing to junior lawyers in their offices. Small-firm and solo lawyers, however, often think that they must conduct all their own research and write all of their briefs themselves. For these lawyers, research and writing collides with the time restrictions of a busy law practice. There simply are not enough hours in a day to thoroughly research and explore every issue in every case. Moreover, good brief writing at both the trial and appellate levels requires attention to detail and fastidious adherence to local rules and citation-formatting requirements. Time scarcity can mean that those factors get overlooked.
For time-pressed lawyers, finding a dependable third-party brief writer can carry several strategic benefits in their cases. First, good brief writers focus their entire efforts on research and writing. They help lawyers make the best possible impressions on courts, judges, and opposing lawyers with their written work product. Well-written legal briefs can help bring about settlements, favorable motion results, and effective records on appeal. Second, solo and small-firm lawyers can achieve a psychological edge when litigating complex cases. An opposing lawyer might expect a solo or small-firm practitioner to buckle under the pressure of issue- and document-heavy cases. Submitting thorough legal briefs can dispel that notion and change the other lawyer’s strategic calculus when moving forward. Third, a good legal writer provides a helpful ear to bend for lawyers who would like to discuss strategy in a particular case. A legal writer is involved in a case but from enough of a distance to maintain a fresh perspective. Finally, lawyering is stressful. It is difficult to turn “off” at the end of the day. Delegating time-consuming tasks like research and writing can do wonders for a lawyer’s overall well-being.
In order to recognize the benefits of outsourcing legal research and writing, lawyers must exercise due diligence, which encompasses several facets. First, lawyers should strive to find a writing vendor whose writing style and presentation meshes with their own. Second, it is imperative to make sure that the written work product adheres to local rules and employs the correct citation style. Third, the assigning lawyer should determine what quality assurance procedures, if any, the writing vendor uses. If the vendor has no quality assurance protocols, then the assigning lawyer must exercise greater supervision over that vendor. Finally, the assigning lawyer must take care not to simply take the vendor’s written work product and submit it to court without first reviewing the content, checking the cites, and ensuring that all relevant arguments have been made. As a rule of thumb, for every 10 hours that the vendor spent writing, the assigning lawyer should spend approximately one hour reviewing the work product.
Notably, legal writing vendors come in various forms. Some are non-law-firm companies staffed with lawyers. Others are small law firms that specialize in legal writing. Yet others are individual attorneys who provide freelance legal writing services.20 The overriding concern when picking a solution provider must always remain the quality of the work product. The higher the quality, the easier it will be for a lawyer to delegate that task, save time, and allocate intellectual resources to other aspects of a case.
Hearing coverage. Not every hearing is crucial, and not all hearings require a lawyer’s personal presence. At larger firms, junior lawyers are often tasked with handling routine hearings like continuances, discovery motions, and scheduling conferences. Solo and smaller law offices can avail themselves of the same luxury. Services exist that provide coverage attorneys for these types of routine matters so that the primary lawyer on a case can delegate and focus on the more complex and crucial hearings in a given week. The key here is only sending the coverage lawyer on nonessential matters that will not determine the outcome or alter the course of a case.
Appellate records and formatting. Appeals involve adherence to rules of appellate procedure, local rules, and formatting requirements for appellate briefs. Entire companies exist that provide appellate consultation, namely, assisting with these compliance-based aspects of appellate practice, and these companies often operate on a nationwide basis. Appellate consultants know which courts allow for electronic filing, which ones require paper briefs, and which ones require both. These providers know how the tables of contents and authorities need to be set up, the required fonts and typefaces, and the citation requirements for the appellate record. The right appellate consultant can even take electronic briefs and make them searchable, replete with hyperlinks to the appropriate cites in the appellate record. The lawyers who hire these services can focus their efforts on the substance of their appellate briefs without expending the time and enduring the stress of making sure that every formatting requirement has been met.
Whom to Hire: Contract Lawyers vs. Third-Party Vendors
Lawyers who are pressed for time often think that delegating a task requires them to hire an employee, such as an associate or a paralegal, to handle that task. However, taking on an employee requires a certain volume of work and entails a commitment to pay that employee’s compensation regardless of the firm’s cash flow. Thus, a salaried employee is often not the right solution. In these situations, an outsourced provider can be useful.
Once the decision is made to delegate a task to an outsourced provider, the next question is whether to hire an outside vendor or an individual contract attorney. The answer to that question hinges on the level of support that is needed.
Contract lawyers—i.e., lawyers hired as independent contractors on a temporary basis—are great for broader projects where a lawyer is needed to (1) draft something and argue it in court and/or (2) work with a specific team or paralegal on a specific matter or set of matters. Contract lawyers are often assigned work space inside a particular law office. Good contract lawyers provide wide-ranging support across various aspects of a case, from drafting pleadings and discovery to actually arguing at hearings. On the other hand, most contract lawyers are ideal for short-term and medium-term engagements as opposed to becoming longer-term team members.
An outside vendor is ideal for a discrete type of task where the assigning lawyer maintains overall supervision over the course of a case. These vendors usually help in one or a few distinct aspects of a case but not in others. For example, they might draft motions but not be able to argue those motions in court. Third-party vendors are great long-term partners who can learn an individual lawyer’s preferences and a particular law office’s protocols, but their functions are specialized.
The good news is that there is no wrong answer when deciding on a contract lawyer or a third-party vendor. Lawyers must merely select the solution best suited to the particular circumstance, meaning that it is conceivable for a law office to hire a contract lawyer but still have outside vendors for particular functions.
Asking the Right Questions
Clients sometimes expect lawyers to know every aspect of a particular case. Moreover, if anything goes awry on a specific case, the lawyer representing the client bears ultimate legal and ethical responsibility. It is therefore difficult to cede control over a particular function—especially a core lawyer function—to someone else. Being armed with the right questions can make that process easier.
Regardless of the vendor’s organizational form (individual contractor, company, or law firm) or the type of task being outsourced, there are certain questions that an assigning lawyer should be sure to ask, including, but not limited to, the following:
- Who will perform the work? In other words, will the vendor subcontract the work to someone else?
- Where will the work be performed—in the United States or overseas?
- Does the vendor have an internal quality control protocol?
- Has the vendor handled matters in the relevant jurisdiction/venue?
- What steps are taken to comply with local rules and practices?
- Will confidential or sensitive data be transmitted? If so, what security protocols does the provider have in place?
The goal with these types of questions is to gain a comfort level with a particular provider to help an assigning lawyer more readily delegate functions that might take up time and mental bandwidth.
Beyond due diligence, the other key is communication. Outsourcing arrangements can reap tremendous strategic benefits for lawyers by allowing lawyers to prioritize where they need to place their individual focus. To reap those benefits, however, it is vital that lawyers provide constructive feedback to their vendors so that the process becomes smoother with time.
The aim of any outsourcing arrangement should be to use a lawyer’s time more effectively and allocate resources to a client’s maximum benefit. Achieving that allows lawyers to be more effective at work and more present in their personal lives. If the COVID-19 pandemic has provided any enduring lesson, it is that well-being no longer means leaving well enough alone.
1. See, e.g., Meghan Tribe, Bonuses May Not Be Enough to Solve Big Law’s Associate Problem, Bloomberg L. (Mar. 30, 2021), https://news.bloomberglaw.com/business-and-practice/bonuses-may-not-be-enough-to-solve-big-laws-associate-problem (noting that the pandemic has resulted in “the heaviest workloads [big] firms have faced in recent memory”).
2. See, e.g., Kat Boogaard, Is Parkinson’s Law Sabotaging Your Productivity?, Atlassian (Dec. 22, 2020), https://www.atlassian.com/blog/productivity/what-is-parkinsons-law (“Parkinson’s Law is the old adage that work expands to fill the time allotted. Put simply, the amount of work required adjusts to the time available for its completion.”).
3. Alexandra Twin, Outsourcing, Investopedia, https://www.investopedia.com/terms/o/outsourcing.asp (last updated May 2, 2021).
4. Jonathan Webb, What Is Offshoring? What Is Outsourcing? Are They Different?, Forbes (July 28, 2017), https://www.forbes.com/sites/jwebb/2017/07/28/what-is-offshoring-what-is-outsourcing-are-they-different.
5. Administrative duties like bookkeeping, website management, and payroll fall outside the scope of this discussion because they do not fall into a lawyer’s expected areas of expertise.
6. Sandoval v. Apfel, 86 F. Supp. 2d 601 (N.D. Tex. 2000).
7. Id. at 606.
8. Id. at 607.
9. 806 F. Supp. 2d 272, 278 (D. Me. 2011) (emphasis added).
10. 471 B.R. 496 (Bankr. N.D. Miss. 2012).
11. Id. at 501.
12. See generally id.
13. Id. at 510.
14. Id. at 506.
16. Id. at 507.
18. Id. (emphasis added).
19. ABA Comm. on Ethics & Pro. Resp., Formal Op. 08-451 (2008).
20. The non-Texas legal writer in Sandoval fit into this latter category. See Sandoval v. Apfel, 86 F. Supp. 2d 601, 603 (N.D. Tex. 2000).