Ethical Arguments against Legal Process Outsourcing

1. Unauthorized Practice of Law:

The first and foremost criticism of ‘’Offshoring’’ on ethical grounds is that a part of the legal practice is performed by persons without authorization. The outsourcer may have an authorization, however the agency to which the legal work has been outsourced will not have authentication or authorization as it it geographically located in a place beyond the jurisdiction of the outsourcer. Thus it can be argued that the outsourcer aids and abetts unauthorized practice. American Bar Association’s Model Rules of Professional Conduct states as follows in Rule 5.5 ; -

A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.’’ limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.’’

For an illustration ; An Indian attorney is unallowed to practise or to represent any client outside India. In case of Offshoring, America obtains service support from an Indian attorney for an American Client. This is on perspective would amount to abetment of unauthorized practice of law by the American Firm.

However, jurists are of the opinion that Indian is often an ‘’outsourced’’ and it is governed by the Advocates Act and the Bar Council of India Rules

2. Breach of Confidentiality; -

The legal profession thrives on confidentiality. Confidentiality and Security have always been an integral possession of the the relationship of lawyers and his clients. It could even be stated that confidentiality would be the foremost factor that makes the attorney-client relationship very delicate. Contrastingly , in the case of the LPO, the confidential information is transmitted by the outsourcer to an outsider firm thereby breaking the strands of confidentiality in the Attorney-Client relationship. The question of whether the information transmitted is irrelevant in ethical point of view by few scholars who emphasis that one of the important tenets of legal professional ethics is Confidentiality.

If Client Confidences and Secrets are to be Disclosed. MRPC 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

To combat the criticism of lack of confidentiality Confidentiality agreements are being utilized. Albeit there are additional safeguards undertaken to prevent breach of confidentiality through world recognized standards and certifications, small sized LPOs are maimed due to credibility issues when pursuing clients.

3. Billing for Outsourced legal support

Another practice in case of legal outsourcing which is vehemently criticized is the billing for external legal support. The outsourcer hires external legal aid for considerable advantages such as cost and time. However, when he bills the client for the advantages he enjoys, it could be termed unfair and unethical. This criticism can however be vitiated if the Outsourcer himself bears the expense of the fruits he enjoys.

4. Conflict of Interests

Conflict of interest occurs when an LPO undertakes a project, consciously or unconsciously, which is detrimental to the interest of the client. However, in order to ensure that there is no conflict of interest, credible LPOs conduct a thorough conflict check prior to undertaking a project and also reject client work in case of a conflict. To combat these cracks and crevices, LPOs take adequate precautions by requiring attorneys to sign Non-Disclosure Agreements and moreover maintain a database of attorney profiles and their past project experiences to validate any conflict.

5. Incompetent Representation

As noted above, proper supervision is required to ensure your client is adequately represented. Conduct the necessary due diligence to ensure the LPO delivers the necessary level of competence. Interview the company in advance, obtain references for both the company and the individual who will be doing the work, request sample work product, and communicate directly with person assigned to your project to discuss to ensure he/she understands both the assignment and ethics involved.

Conclusion
Ultimately, LPO’s are an impeccable system of generating work and employment. It also serves as an outstanding mode of extending legal services globally and an efficient and effective technique to minimize the cost and to improve the quality of legal research and work. However, as discussed earlier there are several criticisms against the functioning to LPO’s around the globe. Arguments on ethical grounds cannot be avoided as ethics, morality and law are different pages of the same book. While ethics is the branch of knowledge that deals with moral principles, professional ethics is the personal and corporate rules that govern behavior within the context of a profession. As the ambit of profession has been diversifying and complexing over several years, the concern for ethical practices have arisen. Therefore, there is a necessary requirement for a standard set of rules or regulations to govern the function of legal outsourcing. The American Bar Association and the United Kingdom bar have been much ahead of us in formulating a professional code of conduct with regard to Legal Process Outsourcing. On the contrary the Indian Advocates Act or the Bar Council Rules have absolutely no mention about Outsourcing. To obtain a more holistic monitoring of the Legal Outsourcing activities there has to be either a regulatory or a statutory instrument such that unethical and undesirable actions could be remedied and regulated.