Friday, August 29, 2008

Going of Mohammed to the Mountain: ABA's Guidelines on using Legal Process Outsourcing

"A lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client...", so begins the ethics opinion by the AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY. In a report titled, "Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services", the committe outlines, in a soft tone, the guidelines on how to use the now maturing industry of Legal Process Outsourcing. Some highlights, most of those have been previously discussed on this blog, are:

- Do your diligence on the vendor

1. Meet the offshore lawyers who will be working for you

2. Don't just be impressed by claims of client confidentiality, security and "everything world-class" but actually exert to verify the claims

- Educate and convince yourself on the judicial enforcement procedures of the jurisdiction of the vendor's location. If you can't enforce the confidentialy, conflict-check contracts or service-level agreements, they practically don't mean much. It may be an idea to sign such contracts and agreements with a US based entity representing the vendor. In other words, wholly India based vendors may be a strict no-no.

- Supervise, supervise, supervise the offshored entity. If it bears your signature, its yours - doesn't matter if you got it drafted in Jinxmagistan

- Inform your client, rather obtain their formal consent, if you are going to be using offshoring for their work

- If you are passing on the costs of using an offshore vendor to the client as disbursement, no markup costs are allowed - but you are still required to supervise

This blog will conduct interviews with several vendors to get their opinion and the evolution in the landscape of US legal services. Watch this space!

Tuesday, August 19, 2008

Press Release: Acumen Legal Files Motion to Dismiss in Newman McIntosh & Hennessey vs. Bush


Acumen Legal Files Motion to Dismiss in Newman McIntosh & Hennessey vs. Bush

Washington, d.c. , August 18, 2008 — In a closely-watched legal case, apparently designed by a U.S. law firm to place roadblocks in the way of the fast-growing legal services outsourcing industry in India, the Indian lawyers are fighting back. Newman McIntosh & Hennessy (“NMH”), a U.S. law firm worried about off-shoring of legal work, sued India-based Acumen Legal Services, along with U.S. President George Bush, in the Washington D.C. federal court. In response, Acumen today filed a hard-hitting motion to dismiss.

NMH is suing on the basis of speculation, unsupported by even a single example, that the U.S. government is intercepting all or most of the data sent by U.S. lawyers to foreign legal outsourcing providers, as part of an anti-terrorism campaign. Seizing on that speculation as an excuse, NMH seeks a court order against “all United States-based attorneys” who outsource legal work to India, and “all foreign legal outsourcing providers.”

Thanks to a motion to dismiss and supporting legal brief researched and drafted entirely in India, the NMH law firm is getting an unexpected taste of the kind of high-quality legal work that Indian lawyers can provide, even in the Washington D.C. federal court. In their brief on the motion to dismiss, the legal team for Acumen points out the following:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition. The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad. NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, including in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

In addition, by requesting the Court to issue declarations answering seven hypothetical legal questions, purportedly because the NMH law firm “need[s] guidance,” wants “to gain certainty,” and “must understand” various points of law to help the firm “in an increasingly globalized legal services environment,” NMH seeks relief that is impermissible under well-established principles governing declaratory judgments. The NMH lawyers, in essence, are seeking to outsource their legal research tasks to this Court, and secondarily to Acumen, President Bush and their respective counsel.

NMH’s Complaint is extraordinary, not only for what it contains, but even more so for what it does not. Nowhere in the Complaint does NMH allege:
§ any example of an actual or impending injury to itself or to anyone;
§ any actual or impending violation of Fourth Amendment rights;
§ any instance of an actual or impending waiver of Fourth Amendment rights;
§ any basis for finding a waiver of Fourth Amendment rights, given that NMH does not allege that any Fourth Amendment rights are being violated by the supposed government interception of data;
§ any instance of an actual or impending breach or waiver of attorney-client privilege or confidentiality;
§ any actual or impending example of government interception of data;
§ any actual or impending instance of transmission of data to any foreign nationals by anyone;
§ any basis for NMH’s speculation that electronic transmissions to foreign nationals are more likely to fall into the hands of the government than are domestic transmissions, which are subject to possible domestic surveillance by law enforcement agencies;
§ any examples of actual or impending conduct within the District of Columbia by any of the parties;
§ any relationship or interaction of any kind among any identified persons or entities in the District of Columbia or anywhere else, except for the unsuccessful solicitation sent by Acumen in India to NMH in Maryland;
§ any monetary dispute or requested monetary relief that could support the “amount in controversy” requirement for NMH’s assertion of diversity jurisdiction;
§ any legal or factual basis upon which this court could grant the sweeping declaratory and injunctive relief sought against millions of non-parties, such as every lawyer in the United States, and every foreign legal outsourcing company;
§ any reason why NMH cannot avoid the speculative dangers it alleges by simply (a) continuing to refrain from using foreign legal outsourcing providers, and (b) seeking a protective order in any litigation where NMH believes that its clients’ data may be sent by adversaries to such providers;
§ any legal or factual basis upon which the court could require the Executive Branch to “prevent the waiver of Fourth Amendment rights” or “safeguard the attorney-client privilege and client communications and client confidences and secrets;” or
§ any reason why protection is needed beyond the statutory protection already provided by Congress, under which “[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the [applicable government surveillance provisions] shall lose its privileged character.” See e.g. 18 U.S.C. § 2517(4); 50 U.S.C. § 1806(a).

In short, as further discussed in the remainder of this brief, NMH has not come close to meeting the most basic requirements for standing or personal jurisdiction.

A full copy of Acumen’s motion is available by clicking here.

Tuesday, August 05, 2008

Associate Speaketh

The following is an excerpt from a recent email I got. The author of the email is an associate with one of the largest full-service law firms in the US. It is definitely interesting to note acceptance of LPO from the bright graduates entering top firms.

LPO is extremely fascinating and I am shocked at how few lawyers are aware of the trend in its direction. More shocking, was the hostile reaction I received from lawyers I attempted to discuss the matter with. Many feel the legal profession is free from the economic pressures of globalization. It has been particularly interesting from my perspective as a summer associate because the work that will be outsourced is work currently slated for my first and second year training. Thank you for all of the information you have provided on the website.