For the past year and a half, the ABA’s Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. Yesterday, the Commission issued its Revised Draft Resolution on the subject for comment. The Revised Draft Resolution is the fourth version of proposed changes to the ABA Model Rules (and the comments to those rules) since the Commission first took up this issue; previous drafts were issued in September 2011, May 2011 and November 2010.
As the Commission explains in its cover memo,
The only substantive change to the Commission’s outsourcing proposals appears in Comment  to Rule 1.1 (Competence). That Comment addresses a lawyer’s ethical duties when a portion of a client’s legal work is outsourced to a lawyer in another firm. The last sentence of the prior draft said that, “[w]hen using the services of nonfirm lawyers in providing legal services to a client, a lawyer also must reasonably believe that such services meet the standard of competence under this Rule.” The Commission heard concerns that the sentence as written might be read to impose on lawyers an unnecessary ethical obligation to ensure that the work of a lawyer in another firm was performed competently. The Commission agrees that, in many circumstances, it will be reasonable to rely on the work performed by nonfirm lawyers without independently confirming that that [sic] work was performed competently. The Commission does not believe that the prior draft should be read to impose such a duty, but the Commission nevertheless decided to soften the language by replacing the word “must” with the word “should.”
In the context of the Model Rules comments, I don’t see any practical distinction between the duty imposed on an outsourcing lawyer by merely replacing “must” with “should.” Since the Commission doesn’t intend that Comment  be construed to impose a duty to independently confirm that outsourced work was performed competently, it should have included that clarification in the comment itself, rather than relegating it to the cover memo.
All of this goes back to the hiring lawyer’s duty to appropriately supervise work performed by a nonfirm lawyer. As I explained in my analysis of ABA Formal Op. 08-451, under the current Model Rules, an outsourcing lawyer’s duty to make reasonable efforts to ensure that a nonfirm lawyer conforms to the Rules of Professional Conduct (which impose a duty of competence) is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the lawyer’s firm. However, the statements in the Commission’s cover memo are inconsistent with Op. 08-451, since they can be read as imposing a lesser duty on a lawyer supervising a non-firm lawyer than on a lawyer supervising another lawyer in the same firm. To ensure competent representation, the extent of a supervising lawyer’s obligation to ensure that all supervised work has been performed competently must not depend on whether an associate or a freelance lawyer has performed that work.
This shouldn’t discourage anyone from outsourcing. Remember, adequate supervision—whether over an associate or a nonfirm lawyer—is judged on a reasonableness standard. The level of supervision required depends on factors such as the background of the supervised lawyer (a junior lawyer with no experience in the substantive practice area will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area) and the length of the relationship between the supervising and supervised lawyers (a new relationship calls for greater supervision than an established one). Thus, to comply with ethics rules without losing the efficiency benefit of outsourcing, a solo or small firm lawyer should develop a relationship with an experienced freelance attorney.
The Commission seeks further comments in response to the Revised Draft Resolution. Comments should be submitted by April 2, 2012 to Senior Research Paralegal Natalia Vera at firstname.lastname@example.org.