VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1850
view opinion draft (PDF file)
Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1850, Outsourcing of Legal Services.
This proposed opinion generally addresses the ethical issues involved when a lawyer considers outsourcing legal or non-legal support services to lawyers or paralegals. The opinion is meant to be inclusive of all forms of outsourcing; whether it includes reproduction of materials, reviewing discovery materials, document retention database creation, conducting legal research, drafting memoranda or briefs, or conducting patent searches, just as examples. The opinion walks through several factually distinct hypotheticals and relies upon the Committee’s prior LEOs 1712 and 1735 when opining that a lawyer may ethically outsource legal support services so long as the lawyer/firm: 1) exercises due diligence in the selection of the lawyer/nonlawyer (Rule 5.3(b)); 2) satisfies the duty of competence (Rule 1.1), which requires that tasks be delegated to individuals who possess the skills required to perform them; 3) adequately supervises and sets the appropriate scope for a lawyer/nonlawyer’s work (Rule 1.2 and 5.3(c)); 4) exercises independent judgment on the client’s behalf and does not abdicate that role to a lawyer/nonlawyer (Rule 5.4); 5) communicates with the client (Rule 1.4) to obtain the client’s informed consent to engage an outsourced lawyer/nonlawyer, if the outsourced lawyer/nonlawyer is not directly associated with the firm and receives confidential client information (Rule 1.6); and 6) discloses the actual amount of any mark-up or surcharge, if the payment of the outsourced lawyer/nonlawyer is billed to the client as a disbursement.
Inspection and Comment
The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at (804) 775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.
Not later than November 1, 2010, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.