by Wilton H. Strickland

Legal outsourcing has boomed over the past several years, but it remains something of a puzzle for attorneys who are unsure of how to go about it in an ethical manner. A common concern is whether the attorney’s clients must be informed of the outsourcing arrangement. As with almost all things legal, the answer is “it depends.”

The American Bar Association (“ABA”) shed some light on this issue in 2008 with its Formal Opinion 08-451, titled Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services. First and foremost, an attorney cannot affirmatively misrepresent to the client whether outsourcing is taking place. Apart from that, the Opinion notes vaguely that client consent “may be necessary” if the outside work is not closely supervised by the attorney. The Opinion gets a little more specific when stating that client consent becomes important if confidential information is being shared with outside personnel, as follows:

[W]here the relationship between the firm and the individuals performing the services is attenuated, as in a typical outsourcing relationship, no information protected by [ABA Model Rule of Professional Conduct] 1.6 may be revealed without the client’s informed consent.

But there’s the rub, as Rule 1.6 defines confidential information broadly to include “information relating to representation of a client,” which covers pretty much anything an attorney might need to share when outsourcing. From this it would seem that client consent is always necessary as a practical matter.

Just a few years later, however, the ABA adopted Resolution 105C and added new commentary to the Model Rules with regard to outsourcing. Among that commentary was the following observation concerning client consent:

The Commission was reluctant to conclude that consent is always required, because consent may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information.

So, there persists a grey area where outsourcing can occur without client consent, provided the task is limited and there is no disclosure of confidential information. For instance, if an attorney framed a limited work request in hypothetical terms without reference to a specific client, the client would not need to know about it. This approach is paralleled in various state and local ethics opinions, which tend to agree that client consent for outsourcing becomes necessary when confidential information (however broadly defined) is being shared or if the outside personnel is assuming a significant or substantial role in the work. See Los Angeles County Bar Ass’n Opinion 518; New York City Bar Ass’n Formal Opinion 2006-3; Florida Bar Ethics Opinion 07-2; Colorado Bar Formal Opinion 121; Virginia Bar Legal Ethics Opinion 1850; Ohio Board Of Comm’rs On Grievances And Discipline Opinion 2009-6; South Carolina Bar Ethics Advisory Opinion 10-08.

Since it’s likely that an attorney will need to share at least some information about the representation in order to make full use of outsourcing, the safest course of action is to obtain the client’s consent in all circumstances. This can be accomplished by adding language to the standard fee agreement. Here is a sample, though you should check your own jurisdiction’s requirements to make sure that whatever language you use is appropriate:

OUTSIDE PROFESSIONAL SERVICES

It may become necessary for Attorney to hire outside professionals (lawyers and/or non-lawyers) to assist with the completion of work on behalf of the Client. Client authorizes Attorney to use his or her discretion to select which such persons should be hired. Client understands that Attorney’s decision to hire an outside lawyer will not result in additional separate fees and charges to Client, but rather will be incorporated into Attorney’s standard fee. Client further authorizes Attorney to share confidential information with such professionals when necessary, on the understanding that Attorney will enter an appropriate agreement with such professionals to maintain confidentiality and all applicable privileges.