offshore legal outsourcing the ethical implications webinar sep 9th 2008

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The power point slides accompanying my Sep 9th 08 MCLE Ethics webinar: Offshore Legal Outsourcing, the Ethical Implications

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  • 1.

2.

  • Offshore Legal Outsourcing: The Ethical Implications September 9 th2008
  • by Mark Ross.
  • Senior VP of Global Sales and Marketing
  • LawScribe, Inc.
  • [email_address]
  • (818) 442-4615

3. LawScribe Company Overview

  • LawScribe is one of the worlds leading Legal Process Outsourcing companies
  • Recognized as Industry Leader by TIME Magazine
  • Highest ranked LPO in IAOP Global 100 Best Outsourcing Providers, 2008
  • Ranked number one LPO globally in Support, Transcription & Legal Document Management by the Black Book of Outsourcing, 2008. Ranked in top four LPOs globally by the Black Book of Outsourcing, 2007 and 2008
  • First LPO to achieve State Bar Ethics Certification for Legal Outsourcing Ethics seminar
  • Management includes experienced attorneys from Am Law 50 firms and Fortune 100 companies

4. Speaker Profile Mark Ross

  • LawScribe's VP of Sales and Marketing.A U.K. solicitor andformer partner at Underwoods. Chambers Guide 2007 refers to Underwoods asa flagship firm.has pioneered offshoring of legal work.
  • Chair of the IAOP Legal Outsourcing Chapter and authority on legal outsourcing.Spoken at conferences by prestigious organizations including, U.C. Berkeley School of Law, Financial Times, Association of Legal Administrators and IAOP.
  • Developed first State BarMCLE course, by anLPO, dealing with ethical issues of offshore legal outsourcing.
  • His articles,Accreditation and Self-Regulation for the Legal Outsourcing IndustryandLPO, 2007 and Beyond,published as white papers by the American Bar association, LPO network, and IAOP.
  • His blog,http://blog.law-scribe.com / has become a valuable resource of information for those interested in the legal outsourcing industry.

5. Legal Outsourcing is Nothing New

  • Outsourcing is delegation
  • Lawyers have outsourced for generations
  • Difference today is in offshore legal outsourcing
  • Ethical obligations differ depending on whether outsourcing substantive legal support services or administrative support

6. MCLE Ethics Course Development

  • State Bar of California Approved 1 hour MCLE Ethics Credit
  • Attorneys Risk Averse Legal Outsourcing corporate client driven law firms/lawyers naturally reluctant
  • Unauthorized Practice of Law
  • Duty to Supervise
  • Conflicts of Interest
  • Duty of Competence
  • Client Confidences and Secrets
  • How to Bill
  • Training our in-house attorneys and engineers
  • Legal Outsourcing in the News TIME Magazine, Wall Street Journal and Ethical Opinions and Issues

7. Legal Outsourcing Ethics in the News

  • Timeline of Events
  • Bar Association Opinions(June 2006 September 2007)
  • NMH vs. Bush and Acumen(June August 2008)
  • USPTO Notice Scope of Foreign Filing Licenses (July 16, 2008)
  • ABA Formal Opinion 08-451 Lawyers Obligations When Outsourcing Legal and Nonlegal Support Services (August 5, 2008)

8. ABA Formal Opinion 08-451 Lawyers Obligations When Outsourcing Legal and Nonlegal Support Services

  • May outsource provided U.S. lawyer remains responsible for rendering competent legal services
  • Ensure conduct of lawyers or non-lawyers to whom tasks are outsourced is compatible with U.S. lawyers professional obligations
  • Retain direct supervisory authority
  • Appropriate disclosures to clients
  • Fees charged must be reasonable
  • Avoid unauthorized practice of law

9. Bar Association Opinions on Legal Outsourcing

  • Los Angeles County Bar Association Opinion No. 518 (June 19, 2006)
  • The Association of the Bar of the City of New York Formal Opinion 2006-3 (August 2006)
  • San Diego County Bar Association Ethics Opinion 2007-1 (January 2007)
  • Florida Bar Association (September 2007)
  • Note: Guidelines not legislative authority contact me after
  • the webinar for the links to the opinions

10. Supervision by Counsel & Responsibility for Work Delegated

  • Malpractice Insurance
  • read the policy
  • consult with carrier
  • Dont rubber stamp, take ownership
  • California attorney retains ultimate responsibility for outsourced work and is subject to the California State Bar Act and Rules of Professional Conduct relating to violation of professional responsibilities
  • Seewww.calbar.org

11. Avoiding UPL (B & P sections 6125-6133)

  • Section 6125:No person shall practice law in California unless the person is an active member of the State Bar.
  • CRPC 1-300(A)A member shall not aid any person or entity in the unauthorized practice of law.
    • Client cannot directly contract with offshore outsource provider
    • Review the communications between and among outsource provider, attorney, and client
    • Supervision and control by attorney for tasks that constitute or may be deemed to constitute practice of law
    • Ensure that outsourcing company assists California attorney in practicing law, NOT the other way round.

12. Duty to act competently (CRPC 3-110)

    • Selection and evaluation of the outsource provider
    • Due diligence: Investigate background info about offshore company
    • Be aware of qualifications of individuals who will perform the work
    • Obtain references of company/individuals assigned to perform the work
    • Always interview the company in advance
    • Request sample of work product that is comparable to your project
    • Communicate with non-lawyer during assignment to ensure that the non-lawyer understands the assignment
    • Review ethical standards with individuals who will perform the work and incorporate the standards into the terms of the contract with the company
    • 2. Knowledge of legal and factual issues sufficient to competently supervise
    • Supervision of outsource providers work
    • ABA Opinion written confidentiality agreements

13. Duty of Communication Owed to Client (CRPC 3-500)

    • 1. Clients reasonable expectations
    • Will confidences and secrets be disclosed?
    • 3. Significant Developments
      • Use by a California lawyer of services of non-lawyers may be deemed a significant development
      • Significant Development - Based on the facts of each case?
      • Significant Development a function of clients expectations
    • 4. Non-lawyers often provide only basic legal support services BUT communication still owed to client if:
      • Non-lawyers to play a significant role e.g. several hired for a document review
      • Client confidences and secrets are to be shared
      • Clients expectations are that only law firm personnel to handle matter
      • Billing to be anything other than at cost

14. Informed Consent ABA Opinion

  • Model Rules of Professional Conduct
  • Client-Lawyer Relationship Rule 1.6 Confidentiality Of Information
  • (a) 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).
  • Comment [5] re sharing confidential info within a firm does not extend to outsourcing entity

15. Conflicts of Interest (CRPC 3-300, 3-310)

  • Ask outsourcing company about conflict checking procedures
  • How does outsourcing company track work performed for other clients?
  • Does the law firm need to screen foreign non-lawyer directly re previous engagements?
  • Will provider turn down work?

16. Confidentiality and Client Confidences (CRPC 3-100, B & P section 6068 (e))

  • Is clients consent necessary?
  • Contract with outsourcing company to deal with client confidentiality
  • Non-disclosure agreements signed between outsourcing company and law firm and if required with law firms client
  • Check whether outsourcing companys employees subject to NDAs and confidentiality agreements prior to employment

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