“Be careful of what you ask for you, you might get it.” In response to lawyer concern about the ethics of outsourcing; the ABA issued in August 2008 an ethics opinion. Does it implicitly set a new, higher standard for lawyers who delegate work, irrespective of to whom they delegate? 

EDD consultant and author Conrad Jacoby wrote ABA Outsourcing Opinion – What it means to You as a Litigation Support Professional in Litigation Support Today (Feb/Apr 09). He analyzes the American Bar Association (“ABA”) formal opinion 08-451 regarding outsourcing legal and ancillary services. [See my blog post on ABA 08-451 or buy it from the ABA. I won’t link to the ABA because I am outraged that an organization charged with protecting consumers and promoting lawyers’ professionals values charges for ethics opinions.] Jacoby writes

“ABA’s opinion was driven by the need to clarify the role of third party document review services, the language of the opinion is much broader, serving as a yardstick to measure any outsourced service provided to a legal team….. the Opinion makes it clear that blaming performance issues entirely on a vendor is no longer a winning defense inside a litigation matter.”

The opinion suggests specific due diligence steps for offshore work but the implicit standard it sets apply to any outsourcing, including domestic. Jacoby writes “the burden on law firms has shifted from demonstrating that they outsourced a project (and its liability) to demonstrating the reasonableness of their oversight of an outsourced project.” He presents good practical advice for legal assistants and litigation support professionals, especially concerning keeping records of their interactions with vendors. He also notes that the opinion makes “clear that a legal team that elects to outsource work still retains full responsibility for the quality of the work, just as if the work had been performed directly by members of the legal team.”

Have lawyers, by shining the spotlight on outsourcing and raising the specter of quality fears, inadvertently illuminated the dark corners of their own firms? Would the due diligence steps, when applied to in-house practices, pass the ethics opinion standard? My friends in BigLaw frequently tell me about poorly supervised document reviews in-house. Applying the duty of care implied by the opinion, would law firms pass the same tests to which they must subject vendors?