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Outsourced Legal Research and Legal Support Services
for Law Departments
© 2005 Outsourcing Law Global LLC. All
rights reserved.
Using a global model for hiring legal
research can provide significant benefits to corporate law departments. As
with any business process outsourcing, such outsourcing calls for appropriate
assessment of the enterprise customer's needs, due diligence and selection of
one or more suitable service providers, definitions of service quality and
metrics for milestones and completion, ongoing supervision of performance and
evaluation of quality as delivered, and feedback for process improvement.
The Non-Lawyer in the Law
Department. Corporate law departments include non-lawyers performing
legal support and research for the in-house lawyers. Such personnel
may include librarians, paralegals, law students, new lawyers awaiting
admission, foreign lawyers from affiliated companies and even same-country
lawyers not admitted to practice in the local state or other
jurisdiction.
Non-lawyers assist in the practice of law in
many ways that might be instinctive to an experienced lawyer. These
supporting roles are part of the overall business processes of practicing law
but do not constitute practicing law where there is no attorney-client
relationship between the non-lawyer and the firm's client, or where the client
has been informed that the non-lawyer is not admitted to practice and, by
implication, cannot be relied upon to provide legal advice.
Scope of Outsourced Legal Support
Services. Generically, outsourcing consists of hiring a service
provider to perform a defined set of business processes, where the customer
retains its legal liability to its own customers (here, clients) for failure to
perform those processes. The scope must not include any
"unauthorized practice of the law," for which disbarment could be a
sanction for aiding and abetting. Instead, the outsourced legal services
should not involve any discretion that might affect or impair the lawyer's
independence, the attorney-client relationship or the integrity of the legal
profession.
Support functions that appear not to
constitute the practice of law may include:
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conducting factual and legal research,
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preparing documents for review by a lawyer, including
agreements, patent applications and settlement agreements.
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statutory compliance tasks such as docket control (under an
attorney's supervision, since liability for docket malpractice cannot be
shifted from the attorney),
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project management,
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file organization,
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software installation and data base administration,
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document logistics (e.g., document assembly, printing,
filing of pleadings with a court or governmental agency and even service of
process), and
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"litigation support" such as document scanning and
indexing for pre-trial discovery, printing or storing documents for
examinations before trial and for use at trial.
Risk-Based Cost-Benefit
Analysis. As with other forms of outsourcing, legal research and
support can benefit law firms in many ways:
Against these benefits the law firm must consider the risks:
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violating disciplinary or ethical rules,
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privacy violations,
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breaches of security, trust, confidence and
confidentiality,
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loss of attorney-client privilege,
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malpractice risk, and
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more generally, the inability to supervise or discipline a
wayward service provider.
Professional Responsibility and
Malpractice Risk. The risk of malpractice arises from the
attorney's negligence that causes damage or loss to the client.
Where the attorney makes a mistake but the client suffers no compensable
loss, the client has no cause of action.
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Special Risks of In-House Lawyers. In-house law
departments have special risks since they often exercise business judgment
in deciding how to approach a legal or business problem.
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Non-Delegable Liability Retained by the Lawyer. In
outsourced legal research or support services, the hiring law firm retains
the malpractice risk. Accordingly, all services provided to lawyers by
non-lawyers need prudent and timely supervision. Such issues are
handled in the consulting services agreement with the non-lawyer or the
legal research consulting firm. Where the lawyer has never done
the particular type of transaction and is only blessing the consulting
services company's role, the lawyer may be engaging in legal malpractice if
any of the consultant's services cause the lawyer's client to violate any
law, rule or legal obligation.
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Clouding the Lawyer's Independent Judgment.
Consulting services of non-lawyers should not be used to becloud or
substitute for the lawyer's independent judgment.
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Lack of Lawyer's Independent Judgment. If the
lawyer does not have the professional experience and expertise in a field of
law, he or she should not rely upon a consulting firm to provide that
expertise. Under such circumstances, the in-house lawyer should hire
specialized outside counsel.
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Unauthorized Practice of the Law. If the
consulting services firm is advising the client on business strategy
(whether or not within the earshot of the attorney), participating in
negotiations and drafting, then the consulting services firm may be stepping
over the line on unauthorized practice and the attorney might be liable for
aiding and abetting unauthorized practice. This risk might be
overcome by active supervision by the lawyer and the exercise of independent
judgment.
Ethical Constraints. The
scope of any services that are outsourced to a non-lawyer or research firm must
be limited so that it does not impair the "independence" of the lawyer
and the "integrity" of the legal profession. NYS Code of
Prof. Resp. ("NYSCPR"), Canon 1 and Ethical Consideration
("EC") 1-14. Independence includes responsibility to make
decisions governing the life cycle of the attorney-client relationship and
absence of conflicts of interest that might impair the lawyer's ability to
diligently pursue the client's interests.
Lawyers cannot promote, aid or abet the
unauthorized practice of the law. But they may hire non-lawyers under the
lawyer's supervision and professional responsibility.
Hiring a Law Firm vs. Hiring a Legal
Research Service Provider. The in-house lawyer's decision to
hire a legal research service provider ("LRSP") may be influenced by
the degree of difficulty and ease of administration and supervision.
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Where the in-house lawyer has particular expertise and time
to review and manage a repetitive transactional process, hiring a LRSP might
make sense.
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In contrast, hiring a law firm is appropriate where the
lawyer has insufficient expertise or time to manage the project, where a
legal opinion is needed, where the law firm has institutional knowledge of
the company's operations, or where an advocate is needed to identify issues
and exercise professional judgment, or where the legally mandated
professionalism and code of ethics make an important contribution to the
reliability and quality of the result.
Further Information
Selecting a Legal Research
Service Provider
Contracting with a Legal Research Service Provider
Back to Introductory Page:
Legal Research and Legal Support
Posted: January 8, 2005
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