The ABA yesterday released Ethics Opinion 08-451 on legal outsourcing. It’s substantively important. And separately, it illustrates, in my opinion, systemic issues with how the ABA conducts important business.
- “U.S. lawyers are free to outsource legal work, including to lawyers or nonlawyers outside the country, if they adhere to ethics rules requiring competence, supervision, protection of confidential information, reasonable fees and not assisting unauthorized practice of law.”
- “Outsourcing can reduce client costs and enable small firms to provide labor intensive services such as large, discovery intense litigation, even though the firms might not maintain sufficient ongoing staff to handle the work, according to a new ethics opinion issued today.”
- “Depending on the level of supervision contemplated by the outsourcing lawyer, it might be necessary to obtain informed client consent before engaging outside assistance.”
Unfortunately, I cannot report on the text of the opinion itself. Though the press release links to another ABA web page to download the opinion, the opinion is not on that page. I was not able to find a link to the opinion on the ABA website as of 1050am EDT. I placed three calls to the ABA and none of them yielded the opinion.
I also noticed that the ABA charges non-members for ethics opinions. In my opinion, this is an outrage. I would have thought that a key mission of the ABA is to encourage ethical behavior by lawyers and that, as part of that mission, the ABA would make ethics materials freely available. It is not clear to me what philosophy – other than avarice (aka revenue generation) – supports the idea that ethics opinions should cost to read.
My experience today trying to find this opinion and then learning, even once a link becomes available, I will have to pay to read the opinion, confirms my long-held views that the ABA: (1) is hopelessly bureaucratic and inept at the most basic functions such as actually making available a document referenced by a live press release and (2) out to protect its own interests rather than that of clients and consumers or even its lawyer members.
Update, 515pm EDT A staff member of the ABA has posted the following comment:
The ABA Center For Professional Responsibility’s home page link, “What’s New,” has been changed to allow anyone to access the outsourcing opinion. The Media Relations Department was asked to make changes to the ABA’s homepage to make the opinion easier to find and download. In the future, newsworthy opinions will be available for anyone to download gratis from the Center’s homepage for a limited period.
To download the ABA Opinion 08-451. Formal Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services, go to http://www.abanet.org/cpr/ and look for a link at the top right corner of page.
Update, 11:15PM EDT The ABA ethics opinion is the lead story on law.com now: ABA Gives Thumbs Up to Legal Outsourcing by Anthony Lin in the New York Law Journal, August 27, 2008