I have always held a special place in my heart for Georgetown University. I was born on campus at Georgetown University Hospital. My father received his J.D. from the Law Center, and I am an alumnus of Georgetown Prep. I was also very lucky to attend Hoya basketball games as a child and watch Patrick Ewing dominate the college ranks.
Now I have another reason to love Georgetown: Jim Michalowitz. You see, Georgetown University Law Center is one of the few schools with an e-discovery blog. I have highlighted it before on Gabe’s Guide. So you can imagine how thrilled I was to discover that Jim had actually taken time out of his busy schedule to write a response to my ATL post that was highly critical of the legal outsourcing of e-discovery work to non-attorneys here and overseas.
With the title, “You Can’t Trust Them Foreigners – Outsourcing Document Review,” it’s of little surprise that Mr. Michalowitz — advisory board member of Georgetown University’s CLE e-Discovery Institute, Six Sigma enthusiast, and proponent of foreign legal outsourcing — took a different take on the issue.
And, you know what? He was so right. I just don’t trust them foreigners. I didn’t know it until I read his post, but it all makes perfect sense now.
Here are some of Mr. Michalowitz’s conclusions about my original arguments against outsourcing legal work to non lawyers:
- My position on legal outsourcing was extreme
- Using foreign or non-attorneys would equal a poor or lower quality work product
- Foreign lawyers might as well be considered non- or “not-real” lawyers
Mr. Michalowitz brings up some good points; however, he either has some fundamental misunderstandings of — or is falsely characterizing — my views on legal outsourcing. So, I thought that I would take the time to nicely clarify any misconceptions he might have. Oh, and by nicely, I mean, I am coming like the Clash of the Titans, because I am about to release the Kraken, after the jump.
First, Mr. Michalowitz makes very clear what he thinks of my opinion on legal outsourcing.
The issue of outsourcing and off-shoring of legal services will continue to be a hotly debated topic with proponents pointing out the increased capacity and lower economics of alternative staffing models. Detractors may point out that there are time zone communication concerns, export control issues, language barriers and nervousness of sending evidentiary materials to some remote island somewhere. I believe some of these issues are noise and some have legitimacy. That the outsourcing of legal services, specifically document review, undermines the American legal system, wow, that is pretty extreme.
Wow is right! I am so “extreme.” I write one post on foreign legal outsourcing, and this guy, right off the bat, says it’s because I don’t trust “them” foreigners? And I’m the extremist? Really?
Actually, I fully expected this. The “you’re an extremist” tactic is used quite often against people who dare speak out against foreign legal outsourcing. To be honest, I was more surprised he didn’t accuse me of being “resistant to change.” I have seen those words thrown out as well against “detractors.”
Then he goes further to surmise the legal rationale for why lawyers hate outsourcing so much.
The legal argument, not the business one, is that it could be unethical to send document review work overseas because it exposes the client to poor work product. So, does this assume that the traditional domestic review model is to be trusted just because it is American brand?
Ok, I don’t even know where to begin on this one. Sending work to be done overseas is not per se unethical. I am actually going to throw a bone to my outsourcing colleagues. There is no legal argument that says sending legal work overseas automatically exposes the client to poor work product. The legal argument has been that when lawyers outsource legal work to non-lawyers (here or abroad) and do not properly supervise that work, lawyers not only expose their clients to poor work product, but also expose themselves to malpractice and unauthorized practice of law issues.
The legal community has a legitimate concern with work being done overseas. When legal work is outsourced to people without even basic legal qualifications — people without an understanding of American law — and when their work is not properly supervised or left unchecked, chances are better than not that the quality of work will suffer. And, the quality of work goes hand in hand with “legal” concerns such as malpractice.
Now we begin to get to Mr. Michalowitz’s real issue with my post. And trust me, I think his powers of analysis are, shall we say, unparalleled.
Coming from the world of Six Sigma I don’t view this possible defect as being a “foreign” issue; it is a process problem. In my mind the slippery slope that Acevado [sic] is going down is this – foreign lawyers = non-lawyers = poor quality = ethical breach.
I admit I am not familiar with the ways of Six Sigma, but their powers must be awesome! Seriously, if he employed any of that knowledge in his interpretation of my post, I would be fearful of him managing any project where millions of documents were involved; he completely missed the point of what I meant by a slippery slope.
So let me try to state it again: if a law firm is using anyone other than attorneys licensed in any of the United States on large-scale document review projects, they are almost certainly committing unauthorized practice of law. It is highly improbable that the supervising firm can competently scrutinize the work of individuals who either aren’t licensed in the United States or, worse yet, aren’t licensed as attorneys anywhere on such a grand scale project. There is the ethical breach. If we, as overseas outsourcing companies would like it, come to a point when using foreign-licensed attorneys for American legal work becomes standard, what is to stop our slide down that slope? What is there to stop document review companies from hiring honors high school students across the United States for large scale document reviews? Or better yet, what is to stop a company from hiring honors high school students in other countries where they may be cheaper?
Also, do not think this slide stops just at document review work. Do you think for a second that if a company could outsource partner level work, actual legal advice to a client, they would balk at the chance? Um, well, they are already doing it.
Now, though, we come to the heart of the matter. This, again, is typical criticism lobbed at “detractors.”
we have the author’s position put forward that foreign lawyers are non-lawyers. Further, we now have the argument that any cost savings gets lost because the supervising “real” lawyers have to perform review or rework of the foreign “not real” lawyers.
He’s got a point. How DARE I consider foreign lawyers as “not real” or non-lawyers? I mean, the nerve of me. Then again, I could have sworn that foreign lawyers who are not licensed in the United States are not allowed to practice law in the United States.
Let me take that that a step further, though: even if you are licensed in the United States, a lawyer–with rare exception–cannot just practice all over the country. For example, I am licensed to practice law in Maryland and the District of Columbia. That means that even though I am a lawyer licensed in the United States, in the state Virginia, which is less than a mile from where I work, I am considered (are you ready for it?) a NON-LAWYER.
This point, though, is also part of the strategy of outsourcers. They try their best to equate the qualifications of their foreign lawyers with that of their out-of-state qualified counterparts as if they are one and the same. If anyone tries to dispute that characterization, outsourcers automatically turn it into a “oh you must not trust foreigners thing.”
This is how Mr. Michalowitz concludes.
why don’t we embrace the use of good process in the document review phase of discovery? I would offer the following:
1. Resistance to change
2. Implementing good process is a hard thing to do
3. It sounds complicated
4. Most domestic staffing providers don’t offer “process”; they offer American trained lawyers at billing rates lower than law firms
And, to go out with a bang for the blog entry,
5. A good process with quality controls takes away the “foreign” lawyers are the problem argument
There is the “resistance to change” argument I had been awaiting. I knew that was coming.
I have never considered myself resistant to change. After all, I have been running a blog for over two years that focuses on new trends in legal technology, mergers, acquisitions, etc. In other words, change. The majority of my posts on ATL are about changes in Biglaw.
That being said, we should not embrace change just for the sake of change. When that change can undermine the system that will affect our entire profession or become a potential threat to our clients, we need to take a very hard look at what we are doing.
I commend Mr. Michalowitz on a few things. First, I completely agree with him that with the massive amount of data we deal with in e-discovery, we must always strive to find a better, more streamlined process. That process, though, can work within the rules that we have already established. Why is there such an obsession with using foreign or non-lawyers, when we have plenty of United States-licensed attorneys who would jump at the chance to do this work? Seriously, the one thing we are not short of in this country is attorneys.
Second. I am glad that he took the time to respond to my post. This is a conversation that has for so long been one sided, and more of a discussion really needs to take place. There are too many critical issues at stake. Listen, change is happening, and more change is coming. The choice is, are we going to embrace that change with the ethical rules that we have established as a profession, or are we going to completely ignore them?
Gabe Acevedo is an attorney in Washington, D.C. and the owner of the e-discovery blog, GabesGuide.com. He also writes on legal technology and discovery issues for Above The Law. He can be reached at email@example.com.