Ed. note: Gabe Acevedo, who covered LegalTech for Above the Law earlier this month, will be writing for these pages about legal technology.
Recently, Steven C. Bennett, the chair of Jones Day’s E-Discovery Committee, published an article [PDF] in the Northern Kentucky Law Review entitled “The Ethics of Legal Outsourcing.” In his article, Bennett relied heavily on a six page ethics opinion [PDF] issued by the ABA in August of 2008. When the ABA Formal Opinion 08-451 was released, many legal process outsourcing companies (LPOs) — the companies that hire overseas attorneys to do the work of American attorneys at a fraction of the cost — lauded it as an “endorsement” of their work. As Bennett noted in his article, the opinion even referred to outsourcing as something that was “salutary,” in that it would reduce costs for clients.
Those LPOs had a right to be celebratory about ABA 08-451. After all, never in the history of the United States was there ever an ethics opinion of any Bar Association that had done more to undermine the standing of both American attorneys and our practice of law.
I want to be clear: I am not against outsourcing. In fact, I am a product of it. I have had the chance to work on multiple document reviews as a contract attorney, which has helped provide me with a decent living. After all, my blog is all about e-discovery for goodness sake.
What I am against is the unauthorized practice of law. I am afraid to say that with this continued trend toward outsourcing e-discovery projects, the unauthorized practice of law is increasing with rapid speed.
I hear from attorneys all the time: “Oh, but wait, wait, wait, Gabe. Doc review is not practicing law.” This is a completely inane argument. Document review is part of the discovery process, which is part of practicing law. I know document review is rarely, if ever, exciting, and most of the time can be mind-numbingly boring. However, in reviewing documents for discovery, someone is making a call as to the responsiveness of document. I admit, it’s not like writing a Supreme Court brief, but the reviewer is making a legal judgment call.
Obviously, you don’t have to be an attorney to work on a document review and perform well in making those calls. In fact, you don’t always have to be an attorney to practice law in America. However, in almost every instance where a non-lawyer wants to practice law in this country (e.g., a law student in a clinic), that person must be under the strict supervision of a licensed attorney. The general ethics rule in every jurisdiction is that lawyers must supervise the work of non-lawyers to a much greater and more rigorous degree than simply supervising the work of another lawyer.
So what are some of the steps a licensed attorney can take to properly “supervise” outsourced non-attorneys? As Bennett’s article lays out, ABA Formal Opinion 08-451 provides some dubious, I mean, “concrete” guidance.
-May use electronic communications to “close the gap” in distance between the supervising lawyer and the outsourcing vendor, but such communications “may not be sufficient to allow the lawyer to monitor the work of the lawyers and non-lawyers working for her in an effective manner.”
Ok, I get that. We live in the world of the internet, a global economy, blah, blah, blah. I understand that a supervising lawyer does not have to stand over the shoulder of a non-lawyer during the entire time he or she is doing their work. Email in many cases may be sufficient. Let’s move on.
-Should “consider conducting reference checks and investigating the background” of the outsourcing vendor.
-Might consider interviewing the principal lawyers, if any, involved in the project on behalf of the vendor, and also inquire into the vendor’s hiring practices.
-Should consider investigating the security of the provider’s premises, computer networks, and “perhaps even its recycling and refuse disposal procedures,” to ensure that confidential information is kept secure.
Aren’t these just basic steps in hiring any vendor for any large project, whether that project is conducted in the States or abroad? This has absolutely nothing to do with supervision; this is simply about hiring practices. Oh, but wait, it gets better. Here comes the kicker:
The ABA suggested that “in some instances” it “may be prudent to pay a personal visit” to the vendor’s facility, “regardless of its location or the difficulty of travel,” to get a firsthand sense of the vendor’s operations, for which the supervising lawyer will have ultimate responsibility.
Gee! That’s fantastic. Can you imagine? A firm hires a bunch of non-lawyers to handle a document review involving millions of documents, and they happen to just let a few privileged documents slip into the responsive pile, or perhaps lose a few crucial documents in the non-responsive pile, and now that firm is in court explaining themselves to a judge, trying to avoid sanctions. I guess their argument could be something like, “Well, shucks, we did our best. We checked their references, made sure the place was secure, emailed them a bunch of times, and, ‘in some instances,’ we actually went to the place ourselves.”
If you think firms will never find themselves in those types of situations, well, some of them already have.
The weak language that ABA 08-451 used in describing attorney supervision over non-attorneys bolstered LPOs and other staffing agencies focused on e-discovery around the world. With the ABA’s standards, what is to stop any major discovery review from being conducted overseas by non-licensed attorneys, or even high school students here at home? A process that was already spinning out of control was now completely unraveled.
I want to point out one bright spot in ABA 08-451: one line in their six-page opinion that I greatly wish they, and Mr. Bennett, had expanded on. Specifically with regard to supervising outsourced work completed by foreign attorneys:
What it does mean is that, in such circumstances, it will be more important than ever for the outsourcing lawyer to scrutinize the work done by the foreign lawyers – perhaps viewing them as nonlawyers – before relying upon their work in rendering legal services to the client.
Exactly. But how is it possible for supervising attorneys to “scrutinize” foreign attorneys or non-lawyers on an e-discovery review where 5, 10, 20+ million documents are involved? Let’s be real. You really can’t.
Sure, the attorneys might go back and check the documents that were marked responsive, but what about the documents that were marked non-responsive? Are those documents just going to float away into outer space, in the hope that nothing important was left in them? In my opinion, using foreign attorneys or non-lawyers for large-scale e-discovery reviews may actually become more expensive for clients if a true, ethically-sufficient level of scrutiny is required.
Think about it. A law firm decides to outsource a document review that contains a universe of 200,000 documents (which is an incredibly small review by today’s standards). Imagine that after the firm outsources it to cheaper non-lawyers, they would have to go back through almost every document again to make certain what they were handing over was in order. Basically two people would be doing the work of one person, costing their client more money than if they had just outsourced this to licensed attorneys in the first place.
Let’s face it: the practice of discovery in American law is not just on a slippery slope, it’s careening down a steep mountain covered in fet feet of solid ice. I am afraid that if the leaders in our profession do not step up and stem the tide of this soon, the line between who and who cannot practice law in this country will eventually become almost unrecognizable.
Earlier: Prior ATL coverage of outsourcing