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The Ethics of Legal Process Outsourcing to India—Is the Practice of Law a "Noble Profession," or is it Just Another Business?

Aaron R. Harmon, UNC School of Law

Abstract

Published as “The Ethics of Legal Process Outsourcing—Is the Practice of Law a ‘Noble Profession,’ or is it Just Another Business?” 13 U. of Fl. J. Tech. L. & Pol’y 41 (June 2008).

In this Article, I analyze the emergence of LPO in India, as well as the ethical considerations raised for firms that offshore legal work. I focus on India, where the industry has evolved most rapidly, for two reasons. First, as a result of British colonization, many Indian workers speak English fluently, thereby facilitating an East-West synergy more easily than other countries. Second, India utilizes a common law system similar to what is practiced in the United States and Britain (a result of British colonization).

Since the subject of LPO has been, as of yet, relatively unexplored by legal scholars, Parts II and III are provided as an extended background on the evolution of LPO, and can be read independently of the analysis of the ethical issues contained in Part IV. Part II examines the emergence of LPO in India, placing it in the context of a larger trend of globalization and offshoring. Part III looks at LPO as an industry, evaluating several studies that predict widely disparate rates of growth over the next decade.

Readers already familiar with the LPO industry can proceed directly to Part IV, which takes the “business of law” focus explored in Parts II and III, and places it back into the context of the “profession of law.” Part IV considers LPO in conjunction with the fiduciary duties unique to the legal profession, considerations that do not arise when other industries consider sending their work offshore. Part IV analyzes the five major ethical/professional conduct issues raised by LPO: (1) unauthorized practice of law by non-lawyers; (2) conflicts of interest; (3) client confidentiality; (4) client disclosure and consent; and (5) billing issues related to outsourcing. Each of these ethical considerations is examined using three sources of authority: the Model Rules of Professional Conduct, the Formal Opinions issued by the ABA Committee on related subjects, and the recent opinion on LPO issued by the NYC Bar. In Part V, this Article assesses the efficacy of the Model Rules as applied to LPO and concludes that the present Rules are ill-equipped to deal with the unique issues posed by this new development in the “business of law.”

I. INTRODUCTION

II. BACKGROUND—THE EVOLUTION OF OFFSHORING IN INDIA A. Outsourcing and Offshoring—A Brief Overview B. Business Process Outsourcing (BPO)—Office Services By the Pound C. Knowledge Process Outsourcing (KPO)—From Service to Solutions

III. LEGAL PROCESS OFFSHORING (LPO)—PARALEGALS WHO WORK WHILE YOU SLEEP A. A Brief History of LPO B. Benefits of LPO—Taking “Associate Leveraging” to a Whole New Level C. Conflicting Growth Projections—Dueling Studies 1. LPO is Blowing UP!—The ValueNotes, Forrester, and Nasscom Studies 2. A Lone Voice of Caution—The Evaluserve Report

IV. ETHICAL CONSIDERATIONS—FROM THE MODEL RULES TO THE NEW YORK CITY BAR A. Unauthorized Practice of Law and Lawyer Supervision 1. Model Rules of Professional Conduct 2. New York City Bar Position B. Conflicts of Interest 1. Model Rules of Professional Conduct 2. ABA Committee on Ethics Position

Suggested Citation

Aaron R. Harmon. "The Ethics of Legal Process Outsourcing to India—Is the Practice of Law a "Noble Profession," or is it Just Another Business?" University of Florida Journal of Technology Law & Policy 13.2 (2008): 41-83.
Available at: http://works.bepress.com/aaron_harmon/1