This week’s American Bar Association (ABA) opinion on legal outsourcing marks a positive development for the sector, departing from what many insiders had viewed as a sceptical stance by the group. The document – Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services – places an emphasis on ethical best-practice for LPO contracts. By informing its members of the provisos for offshoring work, the ABA has couched themes of responsibility in terms that freely acknowledge the benefits that LPO has brought to the US legal landscape.

‘The outsourcing trend is a salutary one for our globalised economy,’ says the paper in its clearest statement of support. ‘Labour costs vary greatly across the United States and throughout the rest of the world. Outsourcing affords lawyers the ability to reduce their costs, and often the cost to the client, to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer’s own staff.’

LPO manpower was high on the ABA’s list of outsourcing advantages. It noted that law firms which have no need to maintain large staff-pools on a continuous basis can turn to outsourcing as a means of boosting their numbers during times of increased workload: ‘A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively,’ it says. ‘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 analyse documents, together with a temporary staff of legal assistants to provide support.’

In its ethical content, the paper shows that the ABA has been persuaded by views that have emerged from a handful of regional US Bar associations. In 2007, Bar groups in the cities of New York, San Diego and Los Angeles, and the states of Florida and North Carolina, all issued opinions about the ethical implications of outsourcing. All of them concluded that there were no barriers to pursuing LPO as a means of enhancing flexibility, as long as the US customer was prepared to follow two essential rules: to work with the vendor to provide sufficient preparation early on in a contract; and to supervise the vendor throughout the process. The groups were keen to remind their constituencies that managing the providers of bespoke services was far from a hands-off experience.

Following this line, the ABA states that there is nothing unethical about a lawyer outsourcing legal and nonlegal work if the LPO unit has been equipped to render its services with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary.’ Relevant factors, it says, ‘include the relative complexity and specialised nature of the matter, the [provider’s] general experience [and] training … in the field in question … and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence.’

The ABA’s message to its membership is that LPO should no longer be considered in terms of a culture-clash. Now, all eyes in the sector will turn to the Bar Council of India, to see whether it will change rules preventing foreign law firms from practicing there, in order to promote further openness.

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