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Massachusetts Ethics Body Proposes Changes Concerning Outsourcing

July 15th, 2013 · No Comments


Last week, the Massachusetts Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct published a comprehensive set of proposed revisions to the Massachusetts RPC. As the Committee explains, most of the proposed revisions reflect recommendations made by the ABA’s Ethics 2000 Commission and its more recent Commission on Ethics 20/20.

Last year, the ABA adopted amendments to the comments to ABA Model Rules 1.1, 5.3 and 5.5 to clarify lawyers’ obligations when outsourcing work, whether domestically or internationally. The proposed amendments to the comments to the Massachusetts Rules of Professional Conduct concerning outsourcing track the ABA amendments word for word.

As I explained in my analysis of the new Model Rule comments, those comments didn’t introduce anything new or surprising; rather, they primarily elevated many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments. The changes will have the same effect in Massachusetts, but will carry greater weight in Massachusetts disciplinary proceedings than changes to the Model Rules comments.

The Proposed Changes

The Committee proposes adding the following new comment to Model Rule 1.1 (competence):

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

The requirement to obtain the client’s informed consent to outsourcing in most cases is stronger than that imposed by ABA Formal Op. 08-451, which required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm.

The Committee proposes adding the following comment to Rule 5.3, Responsibilities Regarding Nonlawyer Assistants:1

[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

The factors listed in this proposed new comment essentially parallel the factors recited in the proposed new comment to Rule 1.1. The factors are consistent with the discussion in ABA Op. 08-451 concerning a lawyer’s supervisory responsibilities when outsourcing.

Finally, the Committee proposes adding the following sentence to the Comment [1] to Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law: “For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.” Because: (1) by definition, a freelance lawyer is always hired by another lawyer, not directly by the client; and (2) one of the fundamental characteristics of the relationship between the freelance lawyer and the hiring attorney is that the hiring attorney retains the obligation to adequately supervise the freelance attorney, an out-of-state freelance lawyer performing “inside” work (such as legal research and writing) for a Massachusetts lawyer will not be considered to be engaging in the unauthorized practice of law in Massachusetts or in the freelance lawyer’s state(s) of admission.

Next Steps

Although revising the ABA Model Rules comments concerning outsourcing was a two-year process that involved involved multiple drafts and garnered hundreds of pages of comments, because the proposed changes to the Massachusetts RPC simply conform the state’s rules to the ABA Model Rules, I don’t anticipate much debate about the Massachusetts proposal.

The Committee will make its recommendations to the SJC following a public comment period. Comments, which are due by December 2, 2013, should be directed to the Standing Advisory Committee on the Rules of Professional Conduct, Senior Attorney Barbara Berenson, John Adams Courthouse, One Pemberton Square, Boston MA 02108. Comments may also be sent to barbara.berenson@sjc.state.ma.us.

1The Committee recommends replacing “assistants” with “assistance” in the rule’s title.

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