Legal Ethics
D.C. Area Law Firm Sues Over Outsourced Legal Work, Alleges Privilege Issue
Posted May 23, 2008 2:38 PM CST
By Martha Neil
Updated: Outsourcing legal work to India permits the U.S. government to intercept confidential documents, violating attorney-client privilege and the constitutional rights of those accused of wrongdoing, a Washington, D.C., area law firm contends in a federal lawsuit.
The government interception is possible because the National Security Agency is free to spy on foreign companies, due to a lack of constitutional restraints on the government's overseas activities, according to a complaint (PDF) filed by Newman McIntosh & Hennessey earlier this month in federal district court in Washington, D.C.
The Bethesda, Md., firm has also written lengthy letters to District of Columbia (PDF) and Maryland (PDF) bar officials, seeking opinions on whether outsourcing arrangements violate constitutional protections and legal ethics rules.
"We are really heading toward a collision between globalized economic interests and the limited extension of constitutional rights," name partner Joseph Hennessey tells the Blog of Legal Times.
Additional coverage:
Legal Times: "Law Firm Files Suit to Bar Outsourcing of Client Data"
Updated at 1:30 p.m., central time, on May 27, 2008, to include subsequent Legal Times coverage.
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Comments
associate
May 26, 2008 8:48 AM CST
Outsourcing is all fun and money until the malpractice claims come.
msg
May 27, 2008 7:58 AM CST
Then stop outsourcing work to India in order to save a buck!
Overly broad?
May 30, 2008 6:17 AM CST
The objection to outsourcing seems overly broad, but I admit this is not my area. How are the concerns with outsourcing of for example document review different than concerns when co-counsel on a transaction is based in lets just say India ?
John
May 30, 2008 7:16 AM CST
What about if I go on a business trip to China and take some client documents with me? For that matter, what if I take my computer with numerous client emails being a part thereof? By the logic of this lawsuit, once I expose those documents to even the potential for seizure by a government—in this case at least China, if not also the United States—without the benefits of the Fourth Amendment, then I’ve waived the privilege on those documents. Does that make any sense as a standard? It would seem that no waiver should occur until an actual seizure take place, in which case the client simply needs to be aware of the risk that porting their documents into a foreign country subjects them to different jurisdiction’s laws. All major companies, particularly those doing business in internationally, are well attuned to such risk in the first instance.
Elmore Leonard
May 30, 2008 10:39 AM CST
I’ve never been able to understand the guys I reach when I call my local bank. Evidently they’ve outsourced the help line to India. I usually give up after trying to talk to the customer service representative. I don’t think this rises to the level of privilege, but I am not comfortable giving personal information to someone in in India, or whereever that guy is.
RL
May 30, 2008 12:27 PM CST
In view of the direction where our jobs are headed, it’s only a matter of time before we find Americans taking jobs in convenience stores in India!
cdf
May 30, 2008 4:41 PM CST
What if a firm were organized in the United States with an Indian place of business. Would that company then qualify as a ‘foreign company’ for purposes of government spying? Would the U.S. government still be permitted to spy on that ‘domestic’ company?
I sense a new market for the straw-man lawyer in the U.S. with legal staffers in India. But then you get into legal ethics questions like attorney supervision, etc.
If it could be done so that it passed constitutional attack - I think it would be a great idea if state bars made outsourcing legal work a violation of the code of legal ethics. Its not like there are not enough young attorneys in the states who would be willing to work on spec.
Karlos Waterman
May 30, 2008 5:57 PM CST
Under the policies of the current US administration the 4th Amendment does not exist. It matters not whether the communications are foreign or domestic.
Irwin Ironstone
May 31, 2008 6:56 PM CST
Has anyone ever heard of encryption? This would eliminate most issues. Then, the issue would be the transfer of technology.
Issues related to UPL should be raised by the Bar Associations of most states? Or is the Bar suggesting that Paralegals and foreign lawyers are capable of drafting most papers?
CO
Jun 1, 2008 10:14 AM CST
Mr. Hennessey overlooks the fact that every internationally-focused law firm, which is almost the entire Am Law 200, regularly exchanges unencrypted communications with their or their clients’ foreign operations. This practice subjects their clients’ confidential information, including privileged communications, to seizure by the NSA. Why didn’t Mr. Hennessey name some of the top U.S. law firms in the U.S. in this suit?
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