CHICAGO, May 2, 2011 — The American Bar Association Commission on Ethics 20/20, in its release of initial proposals for comment, is recommending amendments to the ABA Model Rules of Professional Conduct to take into account the growing number of lawyers and law firms that outsource legal and nonlegal work, both domestically and internationally.

The recommendations would remind lawyers in Model Rule comments that before retaining a lawyer outside the firm to provide legal services on behalf of a client, they ordinarily must obtain informed client consent and reasonably conclude that those services will contribute to the competent and ethical representation of the client.  Those lawyers should also make every effort to establish procedures to ensure that nonlawyers to whom work is outsourced act in ways that are compatible with the Model Rules and with the professional obligations of the lawyer.  The recommendations also suggest that the lawyer make reasonable provisions for supervision of nonlawyer client work, in consultation with the client.

“Like it or not, outsourcing is a reality, and it takes many forms,” said Commission Co-chair Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C.  “We’re not judging whether that’s good or bad,” she said.  “The goal of these proposals is to ensure that when lawyers engage in outsourcing of client work, that the Model Rules provide guidance about how to do so ethically.”

Commission Co-chair Michael Traynor of Berkeley, Calif., chair of the American Law Institute Council, notes that changes in the way law is practiced in an increasingly globalized world require a review of lawyer ethics rules.  “Outsourcing by lawyers and law firms is not new, but client demand for it, the nature of work outsourced, and the technology-driven sophistication of the industry did not exist until recently. Our job is to help lawyers navigate through the challenges this presents in a manner consistent with the core values of the legal profession,” he said.

The commission’s current proposal is posted on its website, and will also be circulated for comment.  The recommendation may undergo further revision before being presented to the association’s policymaking House of Delegates for consideration in 2012.  A memo from the commission co-chairs soliciting comment on these issues is available here.

In developing the recommendations, the commission solicited feedback from a wide array of legal entities, including courts, domestic and international bar associations, law schools and individuals.  A draft Issues Paper was circulated and posted on the commission’s website, along with a questionnaire to solicit information from those engaged in legal process outsourcing.

The ABA Commission on Ethics 20/20 was created in 2009, and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.  The commission continues to solicit comments on Issues Papers.

Learn more about the Commission on Ethics 20/20, its mandate and its membership here.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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