Annual Meeting

Changes to Model Ethics Rules Clarify Lawyers' Obligations When Using Outsourcing


The ABA House of Delegates addressed lawyers’ ethical duties when using outsourcing in changes to the ABA Model Rules of Professional Conduct approved Monday.

In Resolution 105C, the ABA Commission on Ethics 20/20 explains the changes and acknowledges the debate over outsourcing, which is being used with increasing frequency partly because of the demand for cost-effective legal services.

“The Commission understands that certain outsourcing is controversial in light of the current employment market for lawyers,” the report says. The changes “are neither an endorsement nor a rejection of the practice of outsourcing. Rather, the proposals respond to the existence and continuing growth of these practices and are intended to clarify a lawyer’s obligations in this context.”

The revisions change commentary but not the black letter model rules. They include:

• A new comment to Rule 1.1 on lawyer competence says a lawyer should ordinarily obtain informed consent from the client before retaining outside lawyers, and the lawyer should reasonably believe the outside services will contribute to the competent and ethical representation of the client. The reasonableness of the decision to retain the outside lawyers will depend on factors such as their education and experience, the nature of the services they will be performing, and the legal ethics rules in their jurisdictions, according to the comment.

• A new comment to Rule on 5.3 on responsibilities regarding nonlawyer assistance says a lawyer may hire nonlawyers outside the law firm, but the lawyer must make reasonable efforts to ensure that the engagement is compatible with legal ethics obligations.

• A new comment to Rule 5.5 clarifies that lawyers cannot engage in outsourcing when doing so would facilitate the unauthorized practice of law.

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