According to the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, a law firm seeking to outsource legal work overseas should take a number of precautions.
First, the retaining firm should determine “whether the system of legal education under which the lawyers were trained is comparable to that in the United States,” because in some countries, people can call themselves “lawyers” with only minimal levels of training.
Second, the country’s legal regulatory system should be evaluated to determine whether its members adhere to ethical principles similar “to those in the United States, and whether the nation’s disciplinary enforcement system is effective in policing its lawyers.” If there is a lack of rigorous training or effective lawyer discipline, the retaining lawyer must be more vigilant in scrutinizing “the work done by the foreign lawyers – perhaps viewing them as nonlawyers – before relying upon their work in rendering legal services to the client.”
Third, a retaining firm must consider “the legal landscape of the nation to which the services are being outsourced, particularly the extent that personal property, including documents, may be susceptible to seizure in judicial or administrative proceedings notwithstanding claims of client confidentiality.”
Fourth, the retaining firm should evaluate the judicial system of the country in question “to assess the risk of loss of client information or disruption of the project in the event that a dispute arises between the service provider and the lawyer and the courts do not provide prompt and effective remedies to avert prejudice to the client.”
Fifth, a retaining firm should “consider conducting reference checks and investigating the background of the lawyer or nonlawyer providing the services as well as any nonlawyer intermediary involved, such as a placement agency or service provider.”
Lastly, the retaining firm should perform due diligence on any intermediaries. For example, the retaining firm may wish to inquire into an intermediary’s hiring practices to evaluate the quality and character of any employees that might have access to client information. In addition, if sensitive information is going to be provided to the service provider, the retaining firm should consider “investigating the security of the provider’s premises, computer network, and perhaps even its recycling and refuse disposal procedures.” A retaining firm may even wish to personally visit to the intermediary’s facility to assess firsthand its operation and the professionalism of the lawyers and nonlawyers it uses.