View Reports by Subject Area
View Reports by Committees
View Reports by Title
advance search by committee
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
FORMAL OPINION 2006-3
TOPICS: Outsourcing Legal Support Services Overseas, Avoiding Aiding a Non-Lawyer in the Unauthorized Practice of Law, Supervision of Non-Lawyers, Competent Representation, Preserving Client Confidences and Secrets, Conflicts Checking, Appropriate Billing, Client Consent.
DIGEST: A New York lawyer may ethically outsource legal support services overseas to a non-lawyer, if the New York lawyer (a) rigorously supervises the non-lawyer, so as to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserves the client’s confidences and secrets when outsourcing; (c) avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) when necessary, obtains advance client consent to outsourcing.
CODE: DR 1-104, DR 3-101, DR 3-102, DR 4-101, DR 5-105, DR 5-107, DR 6-101, EC 2-22, EC 3-6, EC 4-2, EC 4-5.
May a New York lawyer ethically outsource legal support services overseas when the person providing those services is (a) a foreign lawyer not admitted to practice in New York or in any other U.S. jurisdiction or (b) a layperson? If so, what ethical considerations must the New York lawyer address?
For decades, American businesses have found economic advantage in outsourcing work overseas.1. Much more recently, outsourcing overseas has begun to command attention in the legal profession, as corporate legal departments and law firms endeavor to reduce costs and manage operations more efficiently.
Under a typical outsourcing arrangement, a lawyer contracts, directly or through an intermediary, with an individual who resides abroad and who is either a foreign lawyer not admitted to practice in any U.S. jurisdiction or a layperson, to perform legal support services, such as conducting legal research, reviewing document productions, or drafting due diligence reports, pleadings, or memoranda of law.2.
We address first whether, under the New York Code of Professional Responsibility (the “Code”), a lawyer would be aiding the unauthorized practice of law if the lawyer outsourced legal support services overseas to a “non-lawyer,” which is how the Code describes both a foreign lawyer not admitted to practice in New York, or in any other U.S. jurisdiction, and a layperson.3. Concluding that outsourcing is ethically permitted under the conditions described below, we then address the ethical obligations of the New York lawyer to (a) supervise the non-lawyer and ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserve the client’s confidences and secrets when outsourcing; (c) avoid conflicts of interest when outsourcing; (d) bill for outsourcing appropriately; and (e) obtain advance client consent for outsourcing.4.
The Duty to Avoid Aiding a Non-Lawyer in the Unauthorized Practice of Law
Under DR 3-101(A), “[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law.” In turn, Judiciary Law § 478 makes it “unlawful for any natural person to practice or appear as an attorney-at-law . . . without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state and without having taken the constitutional oath .” Prohibiting the unauthorized practice of law “aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.” Spivak v. Sachs, 16 N.Y.2d 163, 168, 211 N.E.2d 329, 331, 263 N.Y.S.2d 953, 956 (1965).
Alongside these prohibitions, the last 30 years have witnessed a dramatic increase in the extent to which law firms and corporate law departments have come to rely on legal assistants and other non-lawyers to help render legal services more efficiently.5. Indeed, in EC 3-6, the Code directly acknowledges both the benefits flowing from a lawyer’s properly delegating tasks to a non-lawyer, and the lawyer’s concomitant responsibilities:
A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.
In this context, we have underscored that the lawyer’s supervising the non-lawyer is key to the lawyer’s avoiding a violation of DR 3-101(A). In N.Y. City Formal Opinion 1995-11, we wrote:
Some jurisdictions have concluded that any work performed by a non-lawyer under the supervision of an attorney is by definition not the “unauthorized practice of law” violative of prohibitory provisions, see, e.g., In re Opinion 24 of Committee on Unauthorized Practice of Law, 128 N.J. 114, 123, 607 A.2d 962 (1992). This committee does not go so far. However, given that the Code holds the attorney accountable, the tasks a non-lawyer may undertake under the supervision of an attorney should be more expansive than those without either supervision or legislation. Supervision within the law firm thus is a key consideration.
The Committee on Professional Ethics of the New York State Bar Association has specifically addressed the unauthorized practice of law in the context of a lawyer’s using an outside legal research firm staffed by non-lawyers. In N.Y. State Opinion 721 (1999), that Committee opined that a New York lawyer may ethically use such a research firm if the lawyer exercises proper supervision, which involves “considering in advance the work that will be done and reviewing after the fact what in fact occurred, assuring its soundness.” Id. Without proper supervision by a New York lawyer, the legal research firm would be engaging in the unauthorized practice of law. Id. That Committee also noted that, “other ethics committees in New York have determined that non-lawyers may research questions of law and draft documents of all kinds, including process, affidavits, pleadings, briefs and other legal papers as long as the work is performed under the supervision of an admitted lawyer” (citations omitted).6.
In this same vein, the Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association recently wrote, “[T]he attorney must review the brief or other work provided by [the non-lawyer] and independently verify that it is accurate, relevant, and complete, and the attorney must revise the brief, if necessary, before submitting it to the . . . court.” L.A. County Bar Assoc. Op. 518 ( June 19, 2006) at 8-9. We agree.
The potential benefits resulting from a lawyer’s delegating work to a non-lawyer cannot be denied. But at the same time, to avoid aiding the unauthorized practice of law, the lawyer must at every step shoulder complete responsibility for the non-lawyer’s work. In short, the lawyer must, by applying professional skill and judgment, first set the appropriate scope for the non-lawyer’s work and then vet the non-lawyer’s work and ensure its quality.
The Duties to Supervise and to Represent a Client