The most significant area in which the Resource Center comes up short is in its collection of the “ethical issuances” (i.e., “ethics opinions” in American English) of state and local bar associations. The Resource Center lists only these six opinions:

• The Association of the Bar of the City of New York Commission on Professional & Judicial Ethics, Formal Opinion 2006-3 (2006)
• Los Angeles County Bar Association, Opinion 518 (2006)
• North Carolina State Bar, Formal Ethics Opinion 12 (2007)
• San Diego County Bar Association, Legal Ethics Opinion 2007-1 (2007)
• Florida Bar, Opinion 07-2 (2008)
• The Supreme Court of Ohio, Opinion 2009-6 Issued August 14, 2009

I suppose Fronterion’s Indian lawyers did some original research to compile this list, since it does include two more opinions than are listed in the ABA Section of International Law Outsourcing Taskforce’s Overview of US Bar Association Opinions on Offshore Outsourcing.

My book, Contract Lawyering Success, contains a truly comprehensive list of ethics opinions relevant to legal outsourcing. Actually, the upcoming second edition of the book reprints 29 of those opinions, and provides citations to four others, for which I was unable to obtain reprint permission.

In addition to the six opinions Fronterion identified, you can find these opinions in Contract Lawyering Success:

• ABA Formal Opinion 88-356, Temporary Lawyers (Dec. 16, 1988)
• ABA Formal Opinion 00-420, Surcharge to Client for Use of a Contract Lawyer (November 29, 2000)
• Alabama State Bar Office of the General Counsel Ethics Opinion RO-2007-03, Temporary Lawyers
• Alaska Bar Association Ethics Opinion No. 96-1, Ethical Considerations when Billing Clients for Contract Attorney Legal Services
• State Bar of California Standing Committee On Professional Responsibility and Conduct Formal Opinion 1992-126
• Ethics Committee of the Colorado Bar Association, Ethics Opinion 121, Use of Temporary Lawyers and Other Professionals Not Admitted to Practice in Colorado (May 17, 2008)
• Ethics Committee of the Colorado Bar Association, Ethics Opinion 105, Opinion on Temporary Lawyers (May 22, 1999)
• District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law Opinion 16-05
• District of Columbia Bar Opinion 284, Advising and Billing Clients for Temporary Lawyers
• Florida Bar Ethics Committee Advisory Opinion 88-12 (August 1, 1988)
• Florida Bar Ethics Committee Consolidated Opinion 76-33 and 76-38 (March 15, 1977)
• State Bar of Georgia Formal Advisory Opinion No. 05-9
• Illinois State Bar Association Advisory Opinion No. 98-02, Disclosure to Client of Compensation Payable to Independent or Temporary Lawyer for Work on a Specific Case (September, 1997)
• New Hampshire Bar Association Ethics Committee Formal Opinion #1995-96/3, Temporary Lawyers – Temporary Lawyer Placement Agency (November 8, 1995)
• New York State Bar Association Committee on Professional Ethics Opinion 721 (September 27, 1999)
• New York State Bar Association Committee on Professional Ethics Opinion 715 (February 26, 1999)
• Ohio Bd. of Comm’rs on Grievances and Discipline Opinion 2009-6 (August 14, 2009)
• Ohio Bd. of Comm’rs on Grievances and Discipline Opinion 90-23 (December 14, 1990)
• South Carolina Bar Ethics Advisory Opinion 91-09 (1991)
• Supreme Court of Texas Professional Ethics Committee Opinion No. 577 (March 2007)
• Supreme Court of Texas Professional Ethics Committee Opinion 515 (July 1996)
• Committee on Professional Responsibility Association of the Bar of the City of New York, Report on the Outsourcing of Legal Services Overseas (August 2009)
• Committee on Professional and Judicial Ethics, The Association of the Bar of the City of New York Formal Opinion 1989-2 (May 10, 1989)

I was not able to obtain reprint permission for the following opinions:

• D.C. Bar Op. 352: Professional Responsibility Duties for Temporary Contract Lawyers and the Firms that Hire Them (February 2010)
• D.C. Bar Op. 291: Contracts With Temporary Lawyers: Restrictions on Subsequent Employment (June 15, 1999)
• Md. State Bar Assoc. Ethics Comm. Op. 01-31: (1) Engagement of Contract Attorneys; (2) Referral Fees to Lawyer Referring Contract Attorney
• Md. State Bar Assoc. Ethics Comm. Op. 92-19: Billing for Outside Research Service

(Maryland State Bar Association ethics opinions are available online to members of the MSBA only.)

It’s true that not all of the opinions listed above discuss foreign legal outsourcing, and not all even use the term “outsourcing.” Furthermore, some of the opinions listed above have been superseded by more recent ones (also listed above).

Nevertheless, Fronterion positions itself as prepared to “help you navigate the practical, ethical and regulatory implications of legal process outsourcing in a domestic and international context.” (Emphasis supplied). All of the opinions listed above are relevant to legal outsourcing, defined as the performance of substantive legal work by a lawyer who is not affiliated (as a partner, associate or of counsel) with the firm that a client has retained to represent it in a matter.

I thought long and hard before posting this list of opinions, which is the product of many hours of work from 2008 through the present. After all, I’ve basically done all of Fronterion’s work, haven’t I? But I know that, if I’m going to take on the big boys, I have to put the money where my mouth is.

The Resource Center’s list of blogs about outsourcing is also woefully inadequate. Since Fronterion advises about foreign outsourcing, I can understand why three of the four blogs listed (including it’s CEO’s blog) focus on that subject (the fourth, the Legal Informatics Blog, covers a wide range of topics, and appears to have been included in the list primarily to point to a Fordham Law Review article entitled Supply Chains and Porous Boundaries: The Disaggregation of Legal Services). Nevertheless, If the Resource Center were the truly comprehensive resource it purports to be, it would have mentioned this blog as well as the blog published by the National Association of Freelance Legal Professionals. (Since the Legal Outsourcing Journal is fairly new, I’ll give Fronterion a pass on having missed that one.)

I’ve previously pointed out that even some foreign LPOs that claim to have U.S.-based lawyers performing quality control aren’t familiar with all of the ethics opinions upon which the viability of their business model rests. Still, I would expect better from Fronterion, which describes itself as “the pre-eminent legal outsourcing advisor.”

My last post on this subject was prompted, in part, by the abysmally poor grammar used in a particular LPO company’s marketing piece. As I explained in comments to that post, I think the quality of a company’s marketing materials is a good predictor of the quality of its work product. Last Friday, another marketing piece, by another foreign LPO company, brought this issue to the forefront once again:

This tweet promoted The Legal Outsourcing Handbook from LegalEase Solutions. Ever curious, I downloaded the Handbook and started to read.

I was immediately struck by the “quality” of the writing. From the first paragraph (and, as I was to find out) to the last, the Handbook is rife with grammatical and usage errors; a few typos are thrown in for good measure. These errors alone would be sufficient to disqualify LegalEase from consideration by any sole practitioner or small firm looking to outsource: the last thing that a busy solo or small firm lawyer wants to deal with when outsourcing substantive legal work is having to practically rewrite a brief to get it signature-ready. But more serious still are the Handbook’s substantive errors.

The Handbook describes ABA Formal Op. 08-451 (Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services) as “the first opinion issued by the ABA regarding legal outsourcing.” However, while Op. 08-451 is the first ABA ethics opinion that discusses offshore legal outsourcing, it isn’t the ABA’s first opinion concerning outsourcing.

In fact, Op. 08-451 itself discusses the ABA’s two earlier opinions concerning outsourcing: Formal Op. 00-420 (Surcharge to Client for Use of a Contract Lawyer) and Formal Op. 88-356 (Temporary Lawyers [the ABA acknowledges in Op. 08-451 that engaging the services of a temporary lawyer is "a form of outsourcing"]). Although the ABA’s ethics opinions are not binding in any state, they are widely cited in relevant opinions issued by state ethics authorities and some influential local bar associations (such as the New York City Bar Association). One would expect an LPO company like LegalEase to have a better understanding of these opinions, upon which the very viability of its business model rests.

There’s more. As every 1L knows, if you’re going to cite a case or statute in a brief, it’s important to make sure that the case or statute is still good law. In its discussion of its conflict checking systems, LegalEase quotes N.Y. Code of Professional Responsibility DR 5-105(e) (actually, it mis-cites the section as “DR 5 – 105(E), New York Lawyers Code of Ethical Responsibility”). New York abandoned the Code in favor of a modified version of the Model Rules 13 months ago.

When I tweeted about my initial response to the Handbook a few days ago, Russell Smith, the Chairman and President of the self-described “high-end” LPO company SDD Global Solutions Pvt. Ltd. quickly came to the defense of the foreign LPO industry:

With friends like this, the foreign LPO industry hardly needs enemies, does it? After all, wouldn’t it be fair to assume that LegalEase—which uses onshore (i.e., U.S.-based) lawyers to “manage and oversee every project, while the offshore staff performs the bulk of the work”—is also a “high-end” LPO company?

If you’re intent on squeezing every last penny of profit out of the outsourcing equation, you may be willing to spend the time to re-write poorly-written briefs, or to submit lightly-edited versions of those same briefs to the courts, in the hope that the judges before whom you practice aren’t sticklers for good writing. But are you willing to re-do the research, too, or run the risk that the brief you submit overlooks significant cases or statutes. or cites bad law? At what point does the extra work you have to do, or the extra risk you have to take, as a result of sending legal work offshore outweigh the benefit you obtain by maximizing the spread between what you pay to outsource the work and what you bill your client for that work?

There’s no question that you’ll most likely make less profit if you work with a freelance lawyer who lives, is admitted to practice in, and works in the United States than if you hire a foreign LPO company. But there’s more to outsourcing than dollars and cents: foreign LPOs may offer a better price, but onshore freelance lawyers offer solos and small firms better value.

This, of course, was an invitation I couldn’t resist. Along with Melody Kramer and Amanda Mineer of the National Association of Freelance Legal Professionals, I submitted the following comment urging the Commission to take into account the impact that its study will have on both the solos and small firms that outsource legal work and the U.S.-based freelance lawyers who serve them:

Response to ABA Ethics 20/20 Call for Comments About Domestic and International Legal Process Outsourcing

Please share your views on this subject in the comments below. And, if you’re reading this on Friday, May 7, you still have a chance to share them with the ABA, too.

What’s funnier than Sacha Baron Cohen poking fun at the U.S. Constitution by comparing it to the way his ex-girlfriend was always “trying to amend herself” with tattoos?

How about when Cohen’s ex-girlfriend sues the comedian and “Da Ali G Show” distributor Channel Four Television for defamation and infliction of emotional distress?

Or maybe Channel Four relying on a team of outsourced lawyers from India rather than U.S. attorneys?

Those Indian lawyers have found success in the case, first at a California District Court and then on Tuesday at the California Court of Appeal. The decision is being hailed as the first appellate ruling of its kind — a victory for the free speech rights of comedians who wish to make fun of ex-girlfriends in the midst of calling Gore Vidal a world-famous hairstylist and questioning whether Denzel Washington lives in George Washington’s former Mount Vernon home.

What won’t be funny is the look on the faces of American lawyers as studios decide to give more legal work to lawyers from India.

“Or maybe Channel Four relying on a team of outsourced lawyers from India rather than U.S. attorneys?”

This question misleadingly implies that Channel Four was represented directly by lawyers who are admitted to practice only in, and/or live in, India. This is not the case.

The decision reveals that Channel Four was represented by Russell Smith of SmithDehn LLP and Theodore F. Monroe of the Law Offices of Theodore F. Monroe—both American lawyers. SmithDehn LLP operates SDD Global Solutions Pvt, Ltd., a legal process outsourcing (LPO) company.

While I’m not personally familiar with either SmithDehn or SDD Global Solutions, I have no doubt that they comply with the ethical restrictions governing legal outsourcing (whether domestic or foreign). Most importantly, as I explained in my analysis of ABA Formal Op. 08-451, the outsourcing lawyer remains responsible for rendering legal services to the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Moreover, the outsourcing lawyer must make reasonable efforts to ensure that the outsourced lawyer (also known in the legal industry as a “contract lawyer”) conforms to the Rules of Professional Conduct. This is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the supervising lawyer’s firm.

Additionally, American lawyers who are outsourcing work to lawyers in a foreign country must investigate whether the system of legal education under which the lawyers were trained is comparable to that in the United States; whether the foreign lawyers are subject to a professional regulatory system that inculcates core values similar to those in the United States; the “legal landscape” of the nation to which the services are being outsourced (and, specifically, whether personal property, including documents, may be susceptible to seizure in judicial or administrative proceedings notwithstanding claims of client confidentiality); and whether the judicial system of the target country will provide prompt and effective remedies to avert prejudice to the client in the event of a dispute between the service provider and the outsourcing lawyer.

Ethics opinions in New York (where SmithDehn’s U.S. office is located) and California (where the Law Offices of Theodore F. Monroe is located) are consistent with Op. 08-451.

As an independent U.S.-based contract lawyer, I’m not thrilled that some U.S. legal work is being sent offshore. Nevertheless, I recognize that the same principles that allow firms to send legal work overseas also allow law students and law graduates awaiting admission to do actual legal work when they’re working at firms, rather than making copies and getting coffee for the partners. These principles also allow U.S. lawyers to work as contract attorneys in jurisdictions in which they are not admitted.

It’s up to U.S.-based contract lawyers to let studios—and all businesses looking to cut their litigation costs—know that they can achieve cost savings by working with firms that outsource to contract lawyers in the U.S., rather than sending the work offshore. Moreover, any company with in-house counsel qualified to supervise litigation and willing to appear on the company’s behalf as counsel of record can outsource directly to contract lawyers. There is a growing cadre of independent U.S.-based contract attorneys—some who work as solo practitioners, others who work for American companies that provide legal services (including research and writing) to other lawyers—to choose from.

Among Hedayat’s six predictions is that “[o]utsourcing [will] give[] way to insourcing.” According to Hedayat,

[i]n a world where the Internet has flattened space and shortened our time to think about nearly everything, location has become nearly irrelevant. Research done in Texas or Hyderabad can be combined with drafts produced in Tennessee or Hong Kong to be presented by an attorney in New York.

Outsourcing is nothing new. However, as costs fall and people overcome their skepticism, this kind of scenario will become increasingly common in 2010. In addition, as communication and collaboration costs fall to zero clients will demand to benefit from the savings (translation: downward pressure on rates).

Every lawyer has heard about “outsourcing” to foreign destinations, but this year more of us will discover that work can be “insourced” to states with higher attorney unemployment. Does it sound like I’m celebrating the misfortune of others? Maybe a little, but at least this way we can keep the jobs from going overseas. Besides, I heard the lawyers in India are asking for competitive wages now. Where do they think they are? America?

I agree wholeheartedly with Hedayat’s basic premise here, which is that more small firms will be using the services of U.S.-based contract lawyers. However, I take issue with both his terminology and his explicit and implicit underlying assumptions.

The Semantics

As I explained in my analysis of Richard Susskind’s 2009 ABA Techshow keynote address (which was based on his book, The End of Lawyers?: Rethinking the Nature of Legal Services), outsourcing, is generally defined as “subcontracting a process . . . to a third-party company.” A process or task can be outsourced to either a foreign provider (offshoring) or a domestic one. Domestic outsourcing (a/k/a subcontracting, from whence we get the term “contract lawyer”)—particularly to the flyover states—is sometimes referred to as homeshoring (a/k/a homesourcing) (though, to make things even more confusing, that term can also be used to refer to the provision of services from an employee’s home).

Insourcing, by contrast, is most often defined as the delegation of operations or jobs from production within a business to an internal (but ’stand-alone’) entity that specializes in that operation. (Steve Matthews of Stem Legal tackles insourcing in the legal context over at the Vancouver Law Librarian Blog.)

On this blog, I generally stick with the broad (and common) “outsourcing,” and qualify whether I mean foreign legal outsourcing (a/k/a LPO or legal process outsourcing) or outsourcing to independent U.S.-based contract lawyers. (Yes, I know that’s a clunky phrase, but it also serves to distinguish solo contract lawyers from lawyers who work through temp agencies, primarily performing document review for large firms.)

The Substance

The basis for my disagreement with the substance of Hedayat’s prediction about outsourcing is his assertion that “[e]very lawyer has heard about ‘outsourcing’ to foreign destinations, but this year more of us will discover that work can be ‘insourced’ to states with higher attorney unemployment.”

First, although (as Hedayat notes) it doesn’t matter where a lawyer working on “inside” work (such as legal research and writing) is located, many solo and small firm lawyers nevertheless outsource to local contract lawyers. This makes sense from the perspective of both the contract lawyer and the hiring attorney. From the contract lawyer’s perspective, although all kinds of lawyers are getting more and more business via the web, in-person networking within the local legal community remains a valuable source of business. (Heck, although I have a fairly robust national presence, probably 50% of my clients are in New York, where I’m admitted.) And hiring attorneys may prefer to outsource to contract lawyers who are admitted in their state, because those contract lawyers are more familiar with the state’s procedural rules.

Second, Hedayat’s observation that “[e]very lawyer has heard about ‘outsourcing’ to foreign destinations” (emphasis supplied) is critical: I don’t know of a single solo or small firms that has outsourced legal work to a foreign country. Instead, those who’ve outsourced legal work have homeshored—they’ve hired independent U.S.-based contract lawyers. Have you (or any of your solo or small firm colleagues) used a foreign LPO provider? If you have, I’d like to hear about your experience; please share it in the comments below.

Two of the trends Fronterion identified are particularly significant for independent, U.S.-based contract lawyers. The first (which the ABA Journal focused on in an article last Friday), is the prediction that,

[a]s legal outsourcing vendors gain prominence in 2010, they will have much greater access to talent as more lawyers consider outsourcing as a genuine career path.

Client confidence in the outsourcing legal services market is translating into a rising talent pool, both on and offshore. Positions at outsourcing vendors will increasingly become an attractive alternative career path for entrepreneurial and global-minded legal professionals as pay, positions and prestige increase.

While Fronterion doesn’t specify exactly what types of onshore positions might be available with large outsourcing vendors, it’s likely that those positions would include (1) sales and marketing; (2) legal technology training and support; and (3) top-level supervision and quality control of foreign lawyers’ work. If you love being a lawyer, only the third type of position would be of interest to you.

But if you’re really an “entrepreneurial . . . legal professional,” chances are you won’t be happy working for someone else: instead, consider starting your own practice working exclusively (or primarily) as a contract lawyer. As an independent contract lawyer since 1996, I’ve always been more than satisfied with my income and the regard in which I’m held by my clients and colleagues. With the legal industry still reeling from the (supposedly now-over) recession, more and more lawyers are pursuing “alternative” careers such as contract lawyering.

The second Fronterion-identified trend that’s particularly important for independent, U.S.-based contract lawyers is the fact that,

[d]ue to the continued uncertain economic outlook in 2010, many firms may be hesitant to lock into long-term, multi-year contract agreements with legal outsourcing vendors. Instead, firms will consider flexible outsourcing agreement structures with third-party vendors which will allow for increased resources on-demand.

Just as the economy has made large firms are hesitant to lock into long-term, multi-year contract agreements with legal outsourcing vendors, it has made the small firms and solos that hire independent U.S.-based contract lawyers reluctant to hire associates, even as their workload increases. As I noted just over a year ago, a bad economy is good news for independent, U.S.-based contract lawyers.

One trend identified in the Fronterion report is of special interest to hiring attorneys. Fronterion predicts that

[l]egal organisations will take a more strategic approach to their outsourcing arrangements as opposed to an ad hoc, cost-focused approach.

* * *

. . . [S]trategic opportunities include better allocation of internal firm resources, increased access to scale, advanced restructuring opportunities and more effective variability management.

In the solo and small firm context, smart hiring attorneys will realize that they can reallocate the time that they (and their current associates) spend doing tasks that either

1. they don’t enjoy doing;
2. they’re not very good at;
3. don’t directly help grow the firm; or
4. some combination of (1)-(3)

by outsourcing those tasks. Hiring attorneys (and their associates) are then free to spend their time on tasks that

1. they enjoy;
2. they’re good at;
3. help grow the firm (such as in-person marketing and relationship-building); or
4. carry some or all of these benefits.

For example, a small firm might give an associate an opportunity to develop a new practice area (and thus diversify the firm’s offerings), while outsourcing some back-end tasks (such as legal research and writing) that would otherwise occupy an inordinate amount of associate time.

Fronterion’s conclusion is a rousing call to action for hiring attorneys:

Industry leaders will not only adapt to change but will also use change to their advantage. Successful law firms and corporate counsels will study the trends in 2010 and ask, “How can our firm not only adjust to change but thrive in the midst of it?” The answer to that question will most likely involve changes in the delivery of legal services.

Supporting—not supplanting— firm operations with an outside legal services vendor has emerged as a successful strategy and will gain momentum in 2010.

In a changing and dynamic legal industry, firms that understand these emerging trends will be able to leverage the full value of their outside legal and litigation support vendors.

Trends mean change. Responding to change means success.

As law practice experts such as Carolyn Elefant, Allison Shields and Susan Cartier Liebel have observed, solos can respond to changes in the legal industry much more quickly than large firms can; I would expand this to small firms as well. There’s no better time than now—at the threshhold of a new decade—to use this agility to incorporate outsourcing as an integral component of a 21st century business model.

As our library of program recordings has grown, more and more new members have expressed interest in obtaining access to previously recorded programs, instead of attending upcoming live programs.

You asked for it, you got it!

Instead of live monthly programs, the LRWP Gold, Platinum and Platinum + memberships now include program recordings of your choice (Gold includes any three recordings; Platinum and Platinum + include any six recordings). In order to give you time to implement the lessons taught in each program, one program is delivered each month for the initial membership period.

Don’t want to wait for monthly program delivery? We’ve created the Gold Turbo, Platinum Turbo and Platinum + Turbo memberships just for you. All of the program recordings included in each of these memberships are delivered within 24 hours of the time you join LRWP.

Of course, our Gold, Platinum and Platinum + memberships (and their Turbo versions) still include the exclusive Contract Lawyering Success e-book and Freelance Freedom audio recording. These items are delivered as soon as you purchase any membership (even if it’s not a Turbo membership).

You can find complete descriptions of all of our memberships on our products page; this handy-dandy chart compares the features of all of the memberships side-by-side.

Finally, all of the supplemental programs are still available individually for $97 each, and I still offer private consultations as well ($197 for one hour; $297 for two hours).

If you have any questions about the new LRWP membership structure, please feel free to comment below, contact me privately, or call me at 914-595-6575.

Yesterday, I saw a post in a LinkedIn group to which I belong, called Legal Research & Writing. Here’s the post, by Jagriti Mishra, the head of business development at an Indian LPO company called Draft N Craft:

Bursting the 7 Myths behind Legal Process Outsourcing.

This article attempts to address 7 common myths associated with the LPO industry

1> Whether outsourcing is synonym to compromise in quality?
2> Outsourcing is a compromise with confidentiality
3> It is unethical to outsource
4> By outsourcing, the vendor takes away outsourcer country’s jobs.
5> Indian LPO vendors compete with foreign law firms.
6> LPO vendors need malpractice insurance
7> Legal outsourcing starts instant savings and has no obligations

Please refer the link below:-

http://lpowatch.blogspot.com/

Curious, I clicked through to the post, where I was immediately struck by Mishra’s discussion of the first “myth” behind legal process outsourcing:

Myth 1> LPO stands for PLPO (Para-Legal Process Outsourcing) and/or there is a compromise in quality.

The legal process outsourcing industry is at nascent state but is growing both monetarily and intellectually. Although it is true that High cost, more routine, lower risk legal works are easy to outsource, it in no way circumscribes the potentials of legal process outsourcing. The PLPO perception is a backlog, as the Legal outsourcing industry begun with routine work. Suffice it is to mention that various important player like (SDD and Lexadigm) have prepared Briefs and Motions to be filed in US courts. Our attorneys are trained for Multi jurisdictional research and assist:-

• US debt collection attorneys prepare Consumer Complaints, Briefs, and Motions for FDCPA, FCRA, FCBA and TILA violations.
• Social security attorneys in filing FIT, research on GRIDS, De novo appeal before ALJ.
• Bankruptcy attorney in intake form fill up and entering the information on Bankruptcy software.
• Foreclosure attorney in preparing complaints, motion and briefs to help the homeless.
• Contract review and management attorneys in contract Review including red lining and blue lining.
• Merger and Acquisition attorney for due diligence.
• For e-discovery solutions with cost advantage.

Quality is a term that takes new face with new situations. Clear guidelines, good teamwork and 100% quality check are the factors that coordinate in determining standards. It requires involvements from both the ends, keep a track of milestones and guidelines and the Outsourced service provider will ensure quality. We however, from our end add extra input to provide best quality deliverables. Had all vendors failed in providing quality this industry would have collapsed by now, the continuous growth reflects value.

Ironic, no?

Before other LPO companies get up in arms, I’ll concede that no doubt many of them have much better quality control than Draft N Craft (which I’d never heard of before reading Mr. Mishra’s post) appears to have. Nevertheless, the trainwreck of grammar and usage errors in Mr. Mishra’s post is a red flag. If the reading comprehension abilities of the foreign lawyers who work for a company like Draft N Craft is on par with the writing ability demonstrated in this post, any US lawyer who hires a company like this will have to do quite a bit of due diligence to ensure that the work product meets the standards set forth by the disciplinary authorities (to say nothing of the courts).

The other red flag in Mishra’s post is his claim that foreign LPO companies don’t have to carry malpractice insurance. Since at least 2003, experts have recommended that companies providing contract lawyering services carry malpractice (or errors and omissions) insurance. While it’s true that most malpractice policies should cover you for work performed on your behalf by a qualified contract lawyer, I’m unaware of any cases in which this has been challenged in the context of foreign legal outsourcing. I’d hate to be the test case.

Since I have never personally worked with a foreign LPO firm, I can’t comment on Mishra’s claims concerning security and confidentiality issues. And since I’m not an economist (heck, I didn’t even take Econ 101 in college), I won’t comment on Mishra’s analysis of the question of whether foreign outsourcing results in a net loss of jobs in the outsourcing country.

I agree with only two of Mishra’s arguments. An ethical foreign LPO company, like any ethical US-based contract lawyer, will not compete with you for your clients. The foreign LPO company (or a US-based contract lawyer who is not admitted in your jurisdiction) simply can’t represent your clients directly. And even a US-based contract lawyer who is providing services in a jurisdiction in which he or she is admitted to practice law won’t compete with you for your clients: simply put, we don’t want your clients—we want to work only for other lawyers.

I agree only to a point with Mishra’s analysis of the ethics decisions. Not a single bar association has determined that foreign legal outsourcing is per se unethical. However, Mishra gives short shrift to the caveats included in many of the opinions. You can find a more detailed discussion of the caveats in ABA Formal Op. 08-451 here.

The last thing that a busy solo or small firm lawyer wants to deal with when outsourcing substantive legal work is having to practically rewrite a brief to get it signature-ready. Sure, it costs more to outsource to a qualified, US-based independent contract lawyer than to send work overseas. But remember: you get what you pay for.

 
Can you figure out which one of these is not like the others?

As explained in ABA Formal Op. 08-451, if a firm bills the cost of a contract lawyer to the client as a disbursement, the firm may not add a markup to the fees that the contract lawyer has charged the hiring attorney. However, if the firm bills the contract lawyer’s services to the client as a professional fee, the firm can add a surcharge to the cost paid by the hiring attorney, provided the total charge to the client represents a reasonable fee for the services provided to the client. As the ABA explained,

[t]his is not substantively different from the manner in which a conventional firm bills for the services of its lawyers. The firm pays a lawyer a salary, provides him with employment benefits, incurs office space and other overhead costs to support him, and also earns a profit from his services; the client generally is not informed of the details of the financial relationship between the law firm and the lawyer.

In light of this language, it’s clear that the ABA believes that contract lawyers have more in common with associates in a firm than with photocopies. Therefore, in my view, the services provided by a contract lawyer should always be billed out as a fee, rather than a disbursement. After all, just because you can include a markup when you’re billing a contract lawyer’s fees out as a professional fee rather than as a disbursement doesn’t mean you have to. Moreover, I doubt that the mid-sized and large firms that responded to the Mattern survey bill their contract lawyers out at cost. If those firms are charging a markup, the Mattern survey shouldn’t have included contract lawyers as a type of “cost” to be recovered.

By contrast, I have been very favorably impressed with blogger David Lat’s balanced coverage of the event. (For those who may be new to the legal blogosphere, Lat is the founding editor of Above the Law, a powerhouse legal blog that receives over 6 million page views a month.) Although ATL is known for reporting primarily on BigLaw news (scandalous and otherwise), Lat devoted a detailed ATL post to each of the day’s four panels (Breaking Back into a Large Law Firm: How to Make Your Way Back into a Top Law Firm; Casting a Wider Net: Small to Mid-Sized Law Firms; Career Alternatives for Attorneys; and Start Up LLP: Creating Your Own Law Firm). In fact, Lat’s post on the Career Alternatives for Attorneys panel provided fodder for my most recent post, in which I respond to ATL commenters who complained about bar ethics opinions that allow outsourcing overseas.

I had the pleasure of speaking with Lat between panels (he spoke on the BigLaw panel, adding some levity to an otherwise fairly grim discussion). When we continued our conversation via e-mail, he shared his views on some issues of particular interest to contract lawyers:

Solomon: I found it very interesting that there was so much interest among audience members in the idea of working as an independent contract lawyer (the first three or four questions for the alternative legal careers panel were about that topic). Do you have any insight as to why the (presumably) BigLaw associates in attendance would be particularly interested in taking that career path?

Lat: As the Biglaw world suffers through the downturn, lawyers from that world are looking for new modes of practice. They tried the safe path of going to a large law firm, only to find out that it wasn’t as safe as expected. In light of all the layoffs from large firms, folks are looking for greater independence—the ability to practice law regardless of what some management committee has to say about it. I think the independent contract lawyer model is appealing for these reasons.

Solomon: What are your thoughts on how the mainstream media covers the current legal job market?

Lat: While all media outlets, from the mainstream ones to the new ones, could always do a better job covering any given topic, I don’t have any huge objections to media coverage of the current legal job market. People are attracted to dramatic stories, and the fall of Biglaw is dramatic. That’s really all there is to it—I wouldn’t chalk it up to any kind of conspiracy.

While I continue to believe that the legal press should be spilling more ink on stories about, and of interest to, small firms and solos, Lat’s point about the drama of BigLaw makes a lot of sense: after all, good news (especially about the small guys) doesn’t sell many papers to the general public.