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Why Connecticut Shouldn’t Ban Legal Process Offshoring

The Connecticut Law Tribune reports today that Connecticut state Rep. Patricia Dillon has introduced a bill designed to prevent companies from offshoring the drafting, reviewing or analyzing of legal documents to unlicensed workers overseas.

The bill (HB 5083) amends Connecticut Gen. Stat. §51-88 “to provide that the practice of law includes (1) drafting, reviewing or analyzing legal documents for clients in this state, and (2) researching and analyzing the law of this state and advising clients in this state of the status of such law, and that any person who has not been admitted as an attorney in this state who performs such activities commits the offense of the unauthorized practice of law.” The statement of purpose contained in the bill itself explains that the bill is intended “[t]o provide that outsourcing of legal document review to non-attorneys constitutes the unauthorized practice of law.” (Emphasis supplied). This sloppily-drafted bill (“legal document review” is a completely different animal than drafting legal documents or conducting legal research, which are also encompassed by the bill’s language) ignores the substantial body of principled analysis of the issues surrounding legal outsourcing in favor of facile protectionism that won’t cure the legal profession’s real ills.

HB 5083 is Inconsistent with the Unanimous Acceptance of Outsourcing by Ethics Authorities Outside Connecticut

Although the Connecticut Bar Association hasn’t issued any ethics opinions directly addressing outsourcing, many other jurisdictions have. None of these jurisdictions have found that an independent contractor’s performance of legal work, under the supervision of a hiring attorney, constitutes the practice of law. Because the sections of Connecticut’s Rules of Professional Conduct (pdf) that are relevant to outsourcing (Rules 1.1, 1.2(a), 1.4, 5.1, 5.3, 5.5 and 7.5(d)) are substantially identical to the corresponding sections of the ABA’s Model Rules of Professional Conduct, there is no reason to believe that an opinion by the Connecticut Bar Association’s Professional Ethics Committee would deviate in any substantial respect from ABA Formal Op. 08-451 (pdf) (and the numerous ethics opinions from other jurisdictions that address outsourcing).

Dillon’s ignorance of the ethics of legal outsourcing is painfully obvious. For example, she claims that “…some legal work is being done abroad with no quality oversight.” While I have warned (here, here and here) that hiring attorneys need to be particularly attentive to the danger of receiving poor-quality work product from foreign LPOs, that is a danger to the hiring attorney, as it is the hiring attorney’s ultimate ethical responsibility to provide “quality oversight.”

Additionally, according to her website, “Rep. Dillon is also considering adding a provision to the bill that would require disclosure of who provided the legal work and where it was done.” This is already required under Conn. R. Prof. Resp. 1.2(a), 1.4 and 7.5(d). See ABA Op. 08-451 (discussing disclosure requirements in light of corresponding sections of Model Rules).

HB 5083 Doesn’t Address the Real Issues Faced by Unemployed Connecticut Lawyers

Rep. Dillon says that HB 5083 is intended to protect Connecticut legal jobs. However, the vast majority of U.S. legal jobs that have disappeared in the last few years were lost due to the poor economy, not because the firms that aren’t hiring (or that eliminated positions) sent legal work offshore. Protectionism won’t bring those jobs back, nor will it reverse the trend in all segments of the domestic economy to a more contingent workforce (another development often bemoaned by the same people who support protectionism). It’s not going to stem the rising tide of law school applications, or the rising number of law schools (including a potential new one in Rep. Dillon’s own New Haven backyard) churning out more and more JDs. And it’s not going to rein in ever-increasing law school tuition, or law students’ ever-increasing debt burden.

Comments (10)

  1. Reply Sadanand Naik

    It is the clients who prefer their work to be completed with decreased cost. Any legislation barring the outsourcing of legal services abroad would adversely affect the clients interests. Even if the legislation is passed, the law firms may still outsource their work as it is the best option to reduce their costs. Any attempt to monitor the law firms communications would violate the law firms privacy. In this advanced technological world, it is really difficult to trace the legal work where it is being performed.

  2. Reply Lisa Solomon

    Sadanand-

    You are correct that monitoring a law firm’s compliance with the law is problematic.

    However, I find it problematic, to say the least, that you would suggest that law firms might still outsource their work. Although the bill itself provides for punishment only for the individual who commits the offense of unauthorized practice of law, the Ct. Rules of Professional Conduct (and the ABA Model Rules on which they are based) prohibit aiding the unauthorized practice of law. Thus, any attorney who outsources abroad in violation of the law would be subject to professional discipline.

    I note that, according to your LinkedIn profile, you are an Indian lawyer located in India. I don’t think it goes too far to suggest that your comment proves that the ABA’s warnings about foreign LPO are fully justified.

  3. Reply Gabe Acevedo

    Lisa,

    I don’t know if it is possible to disagree with you more on this. “Legal document review” is part of discovery, which is part of the practice of law. Making calls on documents is part of the practice law. Sure a lawyer can supervise a non-lawyer in this practice, but in this day and age, how is it possible for a lawyer to adequately supervise cases where millions of documents are involved. It is virtually (actually literally) impossible.

    Do you not consider discovery part of the practice of law?

  4. Reply Lisa Solomon

    Thanks for commenting, Gabe.

    Of course discovery is part of the practice of law. However, if document review, conducted under the supervision of an attorney, constituted the practice of law by the reviewer, then, under HB 5083, all of the following people would be at risk for prosecution for UPL if they did doc review under a lawyer’s supervision: (1) a paralegal employed by an attorney (i.e., as am employee); (2) a lawyer admitted in another US jurisdiction (but not admitted in Connecticut); (3) a law student.

    To the best of my knowledge, Connecticut (unlike D.C.) does not require all contract lawyers employed in the state to be Connecticut-barred. In the absence of such a requirement, there is no principled justification for prohibiting foreign LPO companies from doing the same work that the three categories of non-lawyers mentioned in the previous paragraph are allowed to do.

  5. Reply Gabe Acevedo

    DC does not require a contract attorney to be licensed in DC , but they do hold lawyers to a higher standard in supervising non lawyers. Since supervising hundreds of non lawyers on large scale discovery reviews are pretty much impossible, most contract lawyers in DC are licensed in that jurisdiction. I am certain Connecticut has these basic same rules, which is why LPOs to me are troubling when it comes to large scale discovery.

  6. Reply Lisa Solomon

    Gabe, I don’t think there’s much, if any, difference in the level of supervision required to supervise document review performed by a contract lawyer who is barred in the relevant jurisdiction versus a contract lawyer, with similar qualifications, who is barred in another US jurisdiction (but not in the relevant jurisdiction). Of course, paralegals and other individuals (such as foreign LPO employees) would require a higher level of supervision.

    In your first comment, you said: “how is it possible for a lawyer to adequately supervise cases where millions of documents are involved. It is virtually (actually literally) impossible.” The bottom line is that the buck still stops with the hiring/supervising attorney, regardless of whether the document review is performed by law firm associates, US contract lawyers, paralegals or foreign LPO employees. The potential issue* you’ve identified has to do with the size of the project and number of supervising attorneys on the project, not with who is performing the review itself.

    *I say “potential issue” because I’m not aware of any evidence that large-scale document reviews generally lack adequate supervision by the hiring attorney/firm. In fact, it’s my impression that most large-scale projects have multiple levels of quality control and cross-checks, which may be absent on smaller-scale reviews conducted by a firm’s own employees. Of course, you are much more knowledgeable about document review than I am, and I would be interested in any data that supports your position.

  7. Reply Lionel Hutz

    Gabe, I don’t see how you can say that DC does not require that contract ATTORNEYS be licensed in DC. UPL Opinon 16-05 was pretty straight forward, unless the contract attorney, is being held out as a paralegal or law clerk (who is then supervised by a DC licensed attorney), an attorney has to be licensed. Footnote 4 of Opinion 16-05 is pretty clear, “If a person licensed in another jurisdiction is not eligible to apply for admission to the DC Bar, the person may not engage in the practice of law as a contract attorney … but may be employed as a law clerk or paralegal, subject to the appropriate supervision.” The footnote pretty much sums up the entire opinion – if someone is contemplating taking an assignment in DC, for longer than 90 days, or thinks they may want to do some contract work for a while, the safest thing to do is apply for admission to the DC Bar.

  8. […] I’m not surprised to see this coming out of Connecticut: after all, it’s the same state in which, earlier this year, a state legislator introduced a bill designed to prevent companies from offshoring the drafting, re…. […]

  9. Reply Dharamveer

    Do you have any updates on Connecticut bill that aims at banning LPO?

  10. […] Blogger, Lisa Solomon states in her blog that this sloppily-drafted bill (“legal document review” is a completely different […]

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