Rules Unclear re Supervising Indian ‘Lawyers’

Legal Ethics

Rules Unclear re Supervising Indian ‘Lawyers’

Posted Oct 19, 2007, 06:17 pm CDT
By Martha Neil

As outsourcing American legal work to foreign attorneys in India becomes more and more common, U.S. lawyers need to give some thought to potential ethical pitfalls.

Because the Indian legal education system is different and the duty of confidentiality to clients is narrower than in the United States, it is dangerous to assume an Indian lawyer's understanding of applicable professional standards is the same as his or her American counterpart's, according to the Professional Lawyer (PDF), an ABA Center for Professional Responsibility publication.

Plus, in a number of states here an Indian attorney is not considered a lawyer for the purpose of applying legal ethics rules, adds the article, which is written by Laura D'Allaird, a third-year student at Columbia Law School. Hence, the American lawyer in charge may be ethically required to adhere to support staff supervisory standards when overseeing the work of an Indian attorney.

However, there is currently little specific guidance about the ethical requirements that apply to U.S. lawyers supervising Indian attorneys and other foreign lawyers, the article notes--even as the booming Indian legal outsourcing market, which produced an estimated $52 million in annual revenue for U.S. law firms in 2002, is expected to bring them between $970 million and $4 billion in 2015.

An ABA Journal feature article this month takes readers inside the offices of one of India's most successful legal outsourcing teams, where local lawyers are eager to work on American law firm projects. As an ABAJournal.com post notes, a well-paid Indian lawyer might start at an annual salary of perhaps $7,000. So, with this enormous savings over the cost of hiring an American attorney, the likelihood of continued growth of the outsourcing industry appears high.

Given that reality, more guidance is needed about American attorneys' supervisory responsibilities, D'Allaird writes. "Indeed, direction from the ABA as to whether confidentiality can be effectively protected while outsourcing abroad, and, if so, what measures should be executed to insure this protection would be of great assistance to U.S. lawyers seeking to outsource to India."

The title of the Professional Lawyer article is "The Indian Lawyer": Legal Education in India and Protecting the Duty of Confidentiality while Outsourcing, and it can be found in volume 18, issue no. 3, for those who don't have an online subscription.

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Posted by ariel troncoso - 8 months, 4 weeks, 7 hours, 8 minutes ago

I’m just a first year law student and have much to learn. My experience in the business world has lead me to believe that outsourcing has been established as an effective cost cutting strategy.

I am working hard to learn criminal, tort, and contract law at night school. It is very discouraging to see a potential job opportunity for me going to India.

These decisions are made by CEO’s, MBA’s whose view of the world by the potential profit that can be made off of a commodity.

The business goal of cost savings undercuts legal education in the U.S. by lessening the value of an American lawyer. The future than looks like Indian lawyers will be teleconferencing at proceeedings, meeting with clients by teleconferencing, and conducting discovery via satellite teleconferening.

I see the cold analytical process of business administration applauding outsourcing. However, the impact on american legal education, future opportunies for J.D’s , and representation for american clients appear gloomy. If I need a lawyer, it would not be one in India, but rather a lawyer born, raised, and trained in our hallowed American legal traditions.
Posted by Mexican American - 8 months, 3 weeks, 2 days, 12 hours, 4 minutes ago

Not all American lawyers with J.D. ‘s were born in the USA. If you are refering to the lawyer’s “birth” in law school, then take out either trained, or raised as they would mean the same thing in such an example.
If you don’t want an Indian lawyer taking your job, improve your grammer and broaden your horizons
Posted by Anonymous - 8 months, 3 weeks, 2 days, 11 hours, 16 minutes ago

Hey ariel troncoso,

I am really sorry to see you in the middle of something you may have wished you realized before you went to law school. Get ready for a bumpier ride than JD classes of years past. There are more freshly minted lawyers today than ever before but paid offered lawyer jobs are not increasing in time with the volume matriculating and passing bar exams. But blaming Indian lawyers is an exercise in futility as you seem to really know.

More than ever, freshly minted JDs like you are going to either sink or swim depending on your ability to outcompete for those precious few good jobs and your ability to successfully carry out your business plan (you have one, right?) to hang a shingle as soon as you pass the bar.

Good luck and welcome to life as a lawyer today. If I can help, ask. But when you eventually face the job market and possibly even find yourself seriously considering applying for unemployment or worse, remember that all you have learned correctly taught you not to blame anopther for the color of their skin, be they Indian, red, yellow or green.
Posted by Vulture King - 8 months, 3 weeks, 2 days, 10 hours, 28 minutes ago

Ariel,

Your concerns are valid. I, for one, went to law school so that I could become a part of a tradition that is centuries old. Being a lawyer is more than making a good salary. L

awyering is not a profession, it is a lifestyle.

I support you, whole heartedly, in condemning the outsourcing of our legal work to India as I also condemn the “insourcing” of legal work by India. My objection is to the very notion of treating legal work as a business transaction.

We are not businessmen. We are not here to make a profit. We did not subject ourselves to an excruciating “baptism by Socratic Method” to make a six figure salary. We learnt the law and the constitution and legal writing and legal analysis to become healers of social ailments.

The issue is not clarification of rules of supervision of Indian lawyers undertaking American legal work. The issue is why, at all, should legal work be treated as a commodity, a business transaction!!
Posted by Ivan - 8 months, 3 weeks, 2 days, 10 hours, 5 minutes ago

Don’t you see the outsourcing of the legal work to India as an opportunity? There is more chance for lawyers in India to make a mistake that is easily spotted in US but not so obvious in India. Therefore, if you go solo, you have an opportunity to match and outmatch a big law corporation just because of their otsourcing.
Posted by Ivan - 8 months, 3 weeks, 2 days, 10 hours, 1 minute ago

Don’t you see the outsourcing of the legal work to India as an opportunity? There is more chance for lawyers in India to make a mistake that is easily spotted in US but not so obvious in India. Therefore, if you go solo, you have an opportunity to match and outmatch a big law corporation just because of their outsourcing.
Posted by Andy the Lawyer - 8 months, 3 weeks, 2 days, 9 hours, 40 minutes ago

It’s possible to maintain an upper middle class lifestyle in India for less than in the USA. So, the solution to the problem raised by this article seems obvious. Do what the fabled ancestors of most Americans did. Migrate to the land of opportunity and build a new life and practice there.

Just be prepared to learn HIndi, or Gujarati, or Malayalam in the process.
Posted by Sachin - 8 months, 3 weeks, 2 days, 8 hours, 58 minutes ago

Vulture King posted: “We are not businessmen. We are not here to make a profit. We did not subject ourselves to an excruciating “baptism by Socratic Method” to make a six figure salary. We learnt the law and the constitution and legal writing and legal analysis to become healers of social ailments.”

Clearly you are not a tort lawyer! Your views are shared by very few lawyers. They are naive, but wonderful. I partially share your opinion, in that I want to reform parts of society, but I also want to support 6 members of my family and want to make a good salary! But your point is very well taken.

Has anyone even read the ABA journal article on outsourcing to india?

For all the economists out there, you know what opportunity cost is, for those who do not, please look it up.

Here is the scenario:
A client comes to you and asks to draft a sales agreement for $500. However, you are already up to your neck in work making $1000, so taking this additional job is not possible. So what do you do? Do you just throw your hands up in the air and say “Bye bye $500, I don’t really need you”. Maybe you will, why? Because it’s $500, however imagine this on a larger scale for your firm. WHAT DO YOU DO???

You outsource it to someone in India, who will charge you $200. You get paid $500. What happens? You can STILL make a profit of $300 instead of losing the $500 opportunity.

So outsourcing is not a bad idea in ALL respects. However I do agree that we need to preserve this country’s legal system and keep it in the hand of Americans. As for accountability, the lawyer who outsourced his/her job will be held liable for malpractice. (I would assume) Therefore, the lawyer doing the outsourcing should factor this cost into his cost-benefit analysis.
Posted by Sachin - 8 months, 3 weeks, 2 days, 8 hours, 52 minutes ago

Just to edit the above post, I find Vulture’s post very true. I hold most of his/her’s views.

Outsourcing copy-and-paste jobs is what I was talking about, and I believe that’s all that really CAN be outsourced. How can a client from here truly feel the “warmth” and “comfort” of an attorney from india? I wouldn’t! However, a client wanting a real-estate agreement can’t tell the difference, unless the agreement has an accent!

Also, some of the outsourcing firms in India have local offices in California! The invasion has begun!!!
Posted by Terry - 8 months, 3 weeks, 2 days, 6 hours, 40 minutes ago

The problem with outsourcing is that your clients can tap directly into the Indian market, and completely bypass you and your firm; or the client can hire you with strict instructions that the legal research and many other tasks are to be executed by a lawyer in India. The law shouldn’t be all about profits, but are we forgetting student loans and the cost of a legal education? Not to mention the constant increase in the cost of living in the U.S.
Posted by sounder rajan - 8 months, 3 weeks, 1 day, 19 hours, 16 minutes ago

Here in Chennai we have more than 10,00 lawyers. We are a populated country with lawyers turned out of Law scools in thousands every year .Enforcement in India is a problem as 95% of Lawyers in India earn less tha US $ 5000 per annum.It is futile to seek Indemnity from Indian Lawyers as they are financially incapable to provide it.May be for the paper you can have all the documentation done. The best form of Outsourcing is LPO in India with no strings attached.Presently Outsourcing is not reaping benefits for the whole community ,it is exploited by a niche group.This is reality.
Posted by sounder rajan - 8 months, 3 weeks, 1 day, 19 hours, 13 minutes ago

It should read as 10,000 not 1000
Posted by David - 8 months, 3 weeks, 23 hours, 22 minutes ago

Many good comments, but No. 2 is my favorite. Dudes, competition is the name of the game. Always has been, always will be . . . . Maybe.
Posted by Reno Fernandez - 8 months, 2 weeks, 6 days, 20 hours, 9 minutes ago

So, the subject of this article is a tension between US legal ethics rules and Indian law, and potential problems with US-based supervision. We seem to have strayed pretty far here. I wonder whether ordinary US malpractice insurance will protect a supervising attorney when an Indian associate breaches local PR rules, without breaking Indian law. Or vice-versa—can an Indian lawyer working for a US attorney push the envelope beyond the narrower Indian confidentiality laws? I anticipate that the answer to the first question is simple: no. Then how do US firms protect themselves? How have they so far? Also, I speculate that Indian attorneys may be forbade from sharing confidences, even to the detriment of US-only clients. If so, then how do Indian lawyers protect themselves? With US-sized liabilities, can they afford malpractice insurance on Indian-sized salaries?
Posted by Reno Fernandez - 8 months, 2 weeks, 6 days, 19 hours, 59 minutes ago

ERRATA: At first glance, I interpreted the word, “narrower,” in the article summary above, to mean that the Indian confidentiality rules are stricter than their US counterparts. Subsequent comments suggest otherwise—they suggest that the Indian confidentiality rules are actually looser than US standards. I submit that the word “narrower” in the article summary is ambiguous.
Posted by sounder rajan - 8 months, 2 weeks, 4 days, 22 hours, 26 minutes ago

Malpractice insurance in India is unknown.I subscribe to the views of Reno Fernandez .The term’ looser” is inappropriate,none at all.American Law Firms should rather Branch Out in India with supevision right here rather than there. Then the exported end product will have Ameircan Standard comliance.

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