Current Trend To Outsource Legal Work Abroad and the Ethical Issues Related to Such Practices, The

Georgetown Journal of Legal Ethics, The, Summer 2006 by Kadzik, Alison M

B. PROTECTING CLIENT CONFIDENTIALITY

Lawyers are expected to keep all client information confidential. Model Rule 1.6 addresses this duty of confidentiality and certain instances in which a lawyer may reveal information relating to their representation of a client.37 In addition, the principle of lawyer-client confidentiality is embodied in other related laws, such as the attorney-client privilege and the work product doctrine.

The Model Rules also demand that employees protect all client "secrets."38 Problems can arise when foreign workers are employed by domestic firms because in foreign cultures, "it may be common to display the amount of money one has, to brag about important business ventures, or share work information with coworkers and family."39 Some cultures may not understand that revealing confidential client information about a matter handled by the U.S. firm can result in an ethical violation.40

First and foremost there should be an agreement between the U.S. law firm and overseas employee setting forth confidentiality obligations and restrictions. Maintaining client confidentiality can also be accomplished by limiting the outsourced worker's access to information.41 With the improvements of the Internet and technology, it is easy for a law firm or corporation that decides to outsource legal work to limit the information available to outsourced workers.42 For example, if a firm wishes to outsource items for document review, usually a third-party vendor scans and uploads the documents to a secure Intranet site.43 After the work is completed by the foreign-workers it is uploaded back to the site.44 In these situations, the foreign-workers are given limited access only to the information that is required for them to perform their duties.45 Furthermore, most of the work performed by outsourced workers can be completed with little or no detail about the specific client.46 With the increasing use of outsourcing by American lawyers and law firms, it is important that firms take precautions to ensure that all client information remains confidential.

C. PROVIDING ADEQUATE LAWYER SUPERVISION

Model Rule 5.3 provides requirements for lawyers who employ non-lawyer assistants. The rule requires that the supervising lawyer ensure that the non-lawyer's "conduct is compatible with the professional obligations of the lawyer."47 Furthermore, a lawyer must provide the non-laywer assistant with instructions and supervision concerning the ethical aspects of his employment, especially in regards to his obligation not to disclose confidential client information. The supervising lawyer should also be responsible for the final work product.48

The amount of guidance that the outsourcing company or firm has over the individuals abroad completing the work can have an impact on the ethical issues implicated through the use of the outsourcing process. Supervising lawyers with the firm or company have an obligation to make reasonable efforts to ensure that the overseas employee conforms to the rules of professional conduct, including those governing confidentiality of information relating to the representation of a client.49