In Which I Respond to Lawyers Who Complain About Bar Ethics Opinions that Allow Outsourcing Overseas

As I mentioned in my last post, last week I participated on the alternative legal careers panel at Getting Back in the Game: How to Restart Your Career in a Down Economy, a day-long seminar sponsored by the New York City Bar and Vault.com. On Friday, David Lat posted his report on the panel over at Above the Law, as part of ATL’s series on career alternatives for attorneys.

Sprinkled among the snarky, juvenile and despairing comments (which are par for the course, if you’re familiar with ATL) were some comments that attacked bar ethics opinions that approve of outsourcing legal work to foreign countries. For example, commenter 19 asked:

Didn’t the City Bar Association (the same group hosting the ‘alternative pathways’ meeting) issue an Ethics Opinion in August 2006 saying it was OK to outsource legal jobs to other countries’ workers?

Here’s my response:

19 – you’re right: in Formal Opinion 2006-3, the NYC Bar did say that it’s ok to outsource legal work to other countries. Here’s the digest of the opinion (which is available on the NYC Bar website):

A New York lawyer may ethically outsource legal support services overseas to a non-lawyer, if the New York lawyer (a) rigorously supervises the non-lawyer, so as to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserves the client’s confidences and secrets when outsourcing; (c) avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) when necessary, obtains advance client consent to outsourcing.

More recently, in Formal Op. 08-451, the ABA gave its stamp of approval to sending legal work overseas.

What those who complain about these opinions (and other opinions like them) fail to realize is that the same principles that allow firms to send legal work overseas also allow law students – including (gasp!) summer associates at AmLaw 100 firms – and law grads awaiting admission to do actual legal work when they’re working at firms, rather than making copies and getting coffee for the partners. These principles also allow lawyers to work as contract attorneys in jurisdictions in which they are not admitted.

So, actually, these ethics opinions are good news for US lawyers, if you understand all their implications (check out my post on this, entitled “ABA Formal Op. 08-451 Good News for US-based Independent Contract Lawyers and Hiring Attorneys”).

Lest anyone think that I (and others like me) have been able to create successful and fulfilling legal careers outside of BigLaw because we’re not crushed with debt, the only reason my law school debt from NYU wasn’t over $100k when I graduated is because it cost only about $30k a year to attend when I was in school from 90-93. I’m still paying off my loans.

And for those complaining about doing doc review for $35-$40/hr: when I worked for Lexis as a law school trainer, I was making $17/hr, and during school vacations that year I temped as a secretary. I sucked it up and did what I had to do to get by.

One commenter didn’t like that answer:

To 50 (Lisa S.): To the extent you support the recent Ethics Opinions that have authorized the outsourcing of legal work to other countries when such work could be performed here in America by lawyers with families to feed (not law students), you’re a dunce and a traitor to our profession.

My response:

58 – You can’t have it both ways: the same principles that allow outsourcing to foreign countries also allow “outsourcing” within the United States. US contract attorneys have to distinguish themselves on other grounds than cost – just like other successful US companies that have cheaper foreign competition must distinguish themselves in order to survive and profit.

There are plenty of agencies that place contract/temporary lawyers. Some unemployed US lawyers think that kind of work is beneath them.

I encourage any lawyer in the US who wants to start an independent practice as a contract lawyer to do so. In fact, as I say right on my website, I think there is amazing pent-up demand for high-quality outsourced legal research and writing services (and, to add to that, any high-quality outsourced legal services).

I suggest you read my post entitled “What Susskind’s ABA Techshow Keynote Means for Independent US-Based Contract Lawyers.” As I explain in that post, in an April speech at ABA TechShow, Richard Susskind, author of The End of Lawyers?: Rethinking the Nature of Legal Services, discussed his central thesis, which is that, in the next ten years or so, advances in technology will change, in fundamental ways, how legal services are delivered.

First, Susskind explained that the provision of legal services will increasingly be decomposed into component tasks that can be “multi-sourced”: in other words, each component task can be delivered, by different providers, in a manner lying somewhere on the following continuum:

bespoke (customized) > standardized > systematized > packaged > commoditized

A few of the types of multi-sourcing he listed fall squarely within the experience of today’s contract lawyers. Of the twelve types of sourcing models Susskind touched upon, “outsourcing,” is one of the broadest (and is the term that is probably most familiar to contract lawyers). As Wikipedia defines it, “outsourcing” is “subcontracting a process . . . to a third-party company.” In this sense, all work performed by a contract lawyer has been outsourced by the hiring attorney. Susskind also separately mentioned subcontracting as a sourcing model; I would be interested to learn more about the distinction he draws between outsourcing and subcontracting. Most contract lawyers are also a prime example of homeshoring, which, although commonly defined as “the transfer of service industry employment from offices to home-based employees with appropriate telephone and Internet facilities,” can also include the provision of professional services from a worker’s home.

Second, although Susskind predicts that, under pressure from clients who seek lower cost and greater predictability, an increasing percentage of legal work will be provided in a manner that falls farther and farther towards the right side of the continuum illustrated above, Susskind specifically noted in both his speech and his book that litigation practices would be affected the least by technological changes because litigation matters are very fact specific, and because litigators must necessarily appear in court. The fact-specific nature of litigation means that there will always be a demand for contract lawyers who can provide high-quality legal research and writing services. The “face time” required in many litigation matters means that busy solos will continue to seek the assistance of contract lawyers who can handle “outside” work such as depositions and court appearances.

In my view, independent US-based contract lawyers are well-positioned to ride the wave of technological innovation into the legal landscape of the future. Are you ready?
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Want to grab a piece of the outsourcing pie? Great: that’s exactly what I teach other lawyers to do. There’s also a book called The Complete Guide to Contract Lawyering, which you can find on Amazon, BN.com, etc. There are also plenty of books that provide guidance about how to start a solo practice, including the excellent Solo By Choice by Carolyn Elefant.

Finally, if I’m such a dunce, why am I in the post, while you’re hiding behind an anonymous comment?

As another commenter noted (quoting Bruce Springsteen’s My Hometown from Born in the USA), “these jobs are going son/And they ain’t coming back.” Will laid-off and wannabe BigLaw associates keep chasing the past, or will they embrace the future?