The Ethical Issues Associated with the Outsourcing of Legal And Law Related Services - Research Paper Example

Ethical Issues Ethical Issues Submitted Submitted by: 20th May 2009 This paper would examine and analyze the ethical issuesassociated with the outsourcing of legal and law related services outsourcing to India. As the world becomes increasingly globalized, there are a number of companies which are looking towards outsourcing legal and law related services,; resulting in the cropping up of legal ramifications Outsourcing allows American companies to supervise those who are not members of the bar to be supervised by those who are members of the bar; effectively making the Indian Associates comparable to the US legal students. The market for outsourced legal work was expected to cross the $ 163 billion by 2006 and India has been the leading market in this context. Most of those companies which have outsourced their legal services to India concentrate on the low level paralegal work with a few exceptions which carry out more sophisticated work like patent applications and appellate briefs due to the higher prices associated with the clients. However, a number of ethical issues have cropped up as a result of this outsourcing. The American attorneys based in US believe that by doing so the American attorneys are losing touch with their work. With outsourcing a number of problems crop up such as the issue of keeping control over the work and the way it's being done in the first place. While outsourcing call centers etc was more commonplace, the American companies were less forthcoming regarding outsourcing legal work overseas due to the fear of the clients' backlash and the way the labor unions would react to the use of Indian labor. The American bar Association ethical rules clearly state that all law firms are required to pass all the cost savings on to the clients as a result of outsourcing. Hence, theoretically it could only take one large law firm which would be seeking a competitive advantage to initiate a bidding what which could reform the cost of buying the legal advice in the US. The outsourcing of the preparation of the paralegal applications and all also raise certain ethical issues and since, it is a law related service; it would be analyzed in the following paper. There are a number of principles ethical issues which are connected to legal outsourcing such as conflicts of Interest, client confidentiality, supervision/quality control/competence/ independent professional judgment, fee issues, client disclosures, malpractice issues and lastly, export control restrictions. There are a number of legal authorities which will be studied for the purposes of this paper such as the California Rules of Professional Conduct (CRPC), ABA Model Rules of Professional Conduct(Model Rules) and lastly, the California State Bar Act. There are a number of advisory bodies such as the ABA standing committee on Ethics and Professional Responsibility Formal Opinions (ABA), California Standing Committee on Professional Responsibility and Conduct, San Diego County Bar Association Legal Ethics Committee etc. According to the laws regarding to unauthorized practice or even abetting such practices can result in; B&P 6125: "No person shall practice law in California unless the person is an active member of the State Bar." According to CRPC1-120 "A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act." According to the definition of law provided by the case of Morgan v State bar 51 Cal. 3d 598(1990); Farnham v State Bar Cal. 3d 605, 612 (1976);"The giving of legal advice and the preparation of legal instruments and contracts by which legal rights are secured; court appearances; engaging in negotiations with opposing counsel." Therefore, unauthorized practice of law is that which is carried out by all non-lawyers without the proper supervision of a lawyer. According to CRPC 3-310(C):"A member shall not, without the informed written consent of each client:(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." In terms of client confidentiality, a number of legalities can arise such as those ascertained by the following legal ruling of B&P 6068(e)(1): "It is the duty of an attorney to . . . Maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Model Rule 1.6 (a) also outlines the ethical issues involved such : "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." As for the legal ramifications regarding the quality control aspect, they are as stated by CRPC 3-110: "(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. . . . (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required. Hence, this suggests only the US attorneys can outsource on those matters where the US attorney has the ability to review and correct the work as well. Regarding the issue of fees, a number of laws have been created to restrict unauthorized service provision such as of CRPC 1-310 which states that "A member shall not form a partnership with a person who is not a lawyer if any of the activities of that partnership consist of the practice of law." As for the issue regarding the client disclosures that CRPC 3-500 tackles it effectively; "A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed." Hence, the above rulings and laws have all highlighted the number of ethical issues which are connected to outsourcing legal services to India. References Hendricks, D(2008) "Ethical Issues in Legal Outsourcing" Morrison Foerster Slonim, N(2008)" ABA Ethics Committee Issues Opinion Detailing Lawyer Responsibilities When Outsourcing Legal Work Domestically or Internationally" American bar Association. Retrieved from:< http://www.abanet.org/abanet/media/release/news_release.cfmreleaseid=435> Proctor,M(2005) Transactional Law: Considerations in Outsourcing Legal Work, 84 Mich. B.J. Kadzik,A(2006) The Current Trend to Outsource Legal Work Abroad and The Ethical Issues Related to Such Practices, 19 Geo. J. Legal Ethics 731, 733 Read More