THR, Esq., The Hollywood Reporter’s legal blog (“the intersection of hollywood [sic] and law”) reported today on Sacha Baron Cohen’s appellate victory in a defamation and intentional infliction of emotional distress action brought by a former girlfriend. Ordinarily, I wouldn’t pay much attention to a story like that (though I adored Cohen in Talledega Nights: The Ballad of Ricky Bobby). However, THR, Esq. put an unusual spin on the story:
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.