Outsourced Legal Research and Support Services for Law Firms

© Outsourcing Law Global LLC.  All rights reserved.

  Using a global model for hiring legal research can provide potential benefits to law firms of all sizes.  Such services must be performed and managed in a manner consistent with applicable ethical precepts.  Law firms considering hiring an outside resource for legal research and support should develop appropriate rules and consulting services agreements, in addition to appropriate monitoring of performance.

    The Non-Lawyer in the Law Firm.  Law firms include non-lawyers performing legal support and research.  Such personnel include librarians, paralegals, law students, foreign lawyers visiting on an exchange program and new lawyers who have passed the bar examination but await completion of the formalities of admission to the bar.   In certain countries such as England or Germany, the process of admission to the bar requires a clerkship to complete "articles" or acting as a  Referendar.   

    Non-lawyers assist in the practice of law in many ways that might be instinctive to an experience 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.   Law firm engagement letters may stipulate this to limit professional liability.

    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:

• conducting factual and legal research, 

• preparing documents for review by a lawyer,

• statutory compliance tasks such as docket control (under an attorney's supervision, since liability for docket malpractice cannot be shifted from the attorney),

• project management, 

• file organization,

• software installation and data base administration,

• document logistics (e.g., document assembly, printing, filing of pleadings with a court or governmental agency and even service of process), and

• "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: 

• timeliness, 

• scalability of resource allocation, and 

• possibly cost savings.   

Against these benefits the law firm must consider the risks:

• violating disciplinary or ethical rules, 

• privacy violations, 

• breaches of security, trust, confidence and confidentiality, 

• loss of attorney-client privilege,

• malpractice risk, and

• 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.  

• 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.
  

• 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.  
  

• 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.  
  

• Unauthorized Practice of the Law.   If the consulting services firm is advising the client on business strategy (whehter 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. 

    Further Information

Selecting a Legal Research Service Provider
Contracting with a Legal Research Service Provider

    Contact us:

    If you are considering hiring any such providers, you can get further information on the process and vendor selection from wbierce@outsourcing-law.com.  

Posted: Jan. 8, 2005