Is It Ethical for a US Law Firm to Outsource Work to India? What ABA Opinion 08-451 and Florida Opinion 07-2 Actually Require

Short answer

Yes. Both the ABA (Formal Opinion 08-451) and the Florida Bar (Ethics Opinion 07-2) allow US lawyers to outsource legal support work overseas, provided the lawyer: - stays competent and supervises the work; - does due diligence on the provider; - protects confidentiality; - checks conflicts; - obtains client consent where confidential information is shared; - bills fairly. The duties do not move to the provider. They stay with the lawyer.

Key takeaways

• Florida's opinion says there is "no ethical distinction" between an overseas provider and a local contract paralegal, if supervision is adequate.
• Work requiring the lawyer's independent professional judgment cannot be delegated.
• Restrict the provider's access to the data for that matter only, and require deletion when the work ends.
• In Florida, the provider's actual cost may be passed through unless it is normally overhead. In contingent-fee matters, do not separately charge for work the client's lawyer would normally do.

What does ABA Formal Opinion 08-451 say about outsourcing?

The ABA concluded in 2008 that outsourcing legal and non-legal support is permitted, subject to the lawyer's ordinary duties: - Competence under Rule 1.1. - Supervision of lawyers and non-lawyers under Rules 5.1 and 5.3. - Confidentiality under Rule 1.6. - Due diligence on the provider. As summarised in the ABA Journal, this means reference checks and background investigations, interviewing the principal lawyers, assessing credentials and the provider's security, and considering the legal environment the data will sit in. - Written confidentiality agreements, which the opinion calls "strongly advisable". - Client consent, which may be necessary where confidential information goes to people outside the firm's direct supervision and control.

What does Florida Bar Ethics Opinion 07-2 add?

Florida's opinion (advisory) is more operational. In summary: - A lawyer "is not prohibited from engaging the services of an overseas provider", and there is no ethical distinction from hiring a local provider, if supervision is adequate. - Rule 4-5.3 supervision applies whether the provider is a lay paralegal or a foreign lawyer. The opinion acknowledges supervision across borders may be harder. - Work requiring the lawyer's independent judgment cannot be delegated, and the lawyer must not assist unlicensed practice (Rule 4-5.5). - Confidentiality: give remote access only to the client data needed, with no access to other clients' files, and require that data is irretrievably destroyed after the work. Get assurances about protection in transit, at rest and in use. - Conflicts: the lawyer can be responsible for conflicts arising from the provider's other relationships. - Consent and disclosure should match the risk, and may be required where it would matter to the client. - Billing: the firm may pass through the provider's actual cost unless it is normally overhead, must not double-charge, and in contingent-fee matters may not charge separately for work the client's lawyer would normally do.

The checklist: what a US firm should get from an offshore provider

Is an offshore paralegal practising law without a licence?

Not if the work is support work done under a US lawyer's supervision and adopted by that lawyer. Examples are research, summaries, chronologies and first drafts. It becomes a problem if the provider gives advice to clients, exercises the lawyer's independent judgment, or holds itself out as a law firm. Reputable providers say plainly that they are not law firms.

How OASIS meets these requirements

OASIS states on every page and document that it is not a law firm and gives no legal advice. Each firm gets a named, law-trained paralegal who works only on that firm's matters. Access is limited to the assigned team and a quality reviewer, under confidentiality agreements, using approved tools only. Our Security page sets out the controls, and we provide confidentiality agreements and conflict confirmations before work starts. The first 12 working hours are free, then $12 an hour.

FAQ

Is it legal for a US law firm to use paralegals in India?

Yes. The ABA and the Florida Bar have both said outsourcing is permitted if the lawyer meets the duties of competence, supervision, confidentiality, conflicts and appropriate client disclosure.

Do I need my client's consent to outsource work overseas?

It may be required, especially where the provider will receive confidential information and is outside the firm's direct control. Many firms address it in the engagement letter. Check your state's rules and opinions.

Can I bill the client for outsourced paralegal work in a contingency case?

Under Florida Opinion 07-2, the firm should not separately charge for work the client's lawyer would normally handle in a contingent-fee matter. In hourly matters, the actual cost may be passed through unless it is normally overhead.

Who is responsible if the offshore provider makes a mistake?

The supervising US lawyer. Outsourcing does not shift professional responsibility.

Sources

• The Florida Bar, Ethics Opinion 07-2
• ABA Journal, "A Qualified Yes" (Formal Opinion 08-451)
• ABA Litigation Section, Ethical Implications of Outsourcing Legal Work

Related services and reading

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We assist licensed attorneys; we do not provide legal advice or represent clients. This article is general operational information. Applicable law and professional rules must be checked by supervising counsel.