In Business Law Today, a periodicial published by the ABA, David Steiger discusses the increasing trend of global legal outsourcing. A few years ago, the possibility of legal outsourcing did not appear to be a comprehensible task due to ethical, confidential and educational restrictions placed on the practice of law. However in the past few years, an entire industry based on American legal outsourcing has been growing in India and the Phillipines. This is not a simple company providing workers to read documents, but an industry that follows ABA guidelines within "secure" offices.
Although these companies currently provide document review services and legal research, how far can this industry go before they cross the line from assisting with legal tasks to the unauthorized practice of law. This question has been asked in regards to paralegals, which work under the supervision of attorneys, but what about those working without the supervision of an attorney 2000+ miles away.
The practice of law is a profession. As lawyers we are officers of the court and held to different standards. It is difficult to expect that individuals without the same training and educaton can be expected to uphold ethical standrads from which they suffer no consequence if they fail to abide be them. As paralegals or legal assistants, you are expected to adhere to the same ethical rules as attorneys. I know this from personal experience. Prior to entering Wayne State University Law School, I was a Legal Assisting Major at Eastern Michigan University. EMU's program was one of two ABA approved Bachelor Degree programs available in Michigan. My course work focused on the adherance to the ethical duties, timeliness and the same candor required of our superior attorneys.
As law clerks, just as paralegals, we learn there is a defined, but grey line of separation between the practice of law and the unauthorized practice of law. For instance, when is answering a question simply providing information or giving legal advice. In regards to document review, we can all agree that it does not take a law degree to read documents, but doesn't it take a law degree to legally analyze the meaning of the document? Where is the line drawn for the outsourced workers. How can you regulate an industry that has no duty to adhere to our professional standards. How can clients be assured that that they are acually paying legal services. I'm sure most clients, if asked, would not even agree to their confidential and sensitive matters being reviewed by non-attorneys or non-legal professionals in another country. It would be interesting to know just how many clients are aware of their outsourced records.
Why do we go to school for 7+ years to become attorneys if our tasks can be shipped overseas just as easily as a call center job? The line must be drawn somewhere . . . . but where?
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California's Supreme Court defined the unauthorized practice of law in "Birbower, Montalbano, Condom & Frank, P.C. et al. v. Superior Court (ESQ Bus. Services, Inc.)" (1998) 17 Cal. 4th 119, http://online.ceb.com/calcases/C4/17C4t119.htm interpreting the controlling statute, Calif. Bus. & Prof. Code §6125. Justice Kennard's dissent is particularly revealing.
ReplyDeleteSee also: "Avoiding Unauthorized Practice" By Ellen R. Peck, California State Bar Journal, June 2008 which is posted at: http://calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/June2008&MONTH=June&YEAR=2008&sCatHtmlTitle=MCLE%20Self-Study&sJournalCategory=YES