Ethical Considerations of Outsourcing

I caught this post over at Above and Beyond KM today while I was taking a look at twitter updates from LegalTech New York.

It’s about the ethical and practical considerations of outsourcing legal work. Mary doesn’t mention ediscovery specifically, but she did share with me that ediscovery was absolutely mentioned during the session. Specifically in regards to this:

San Diego County Bar Association Ethics Opinion 2007-1 (January 2007) — this is an important opinion and should be read by every firm considering outsourcing. It discusses a hypothetical in which a firm fails to meet its ethical obligation to prevent the unauthorized practice of law because they lacked the necessary substantive legal knowledge required to assess accurately the quality of the work performed by the LPO provider.

So the question becomes, what level of expertise does an attorney need to have in order to ethically “oversee” someone conducting e-discovery? Even if the outsourcing is just allowing the client to self-collect, or allowing an IT person to do the collection, and processing? It’s an interesting question. One I’m not qualified to answer, necessarily, but I’d like to throw a hypothetical at you.

Let’s suppose you’re an attorney, and your client has been asked in a discovery request to produce all emails between two custodians. You allow one of those custodians to self collect, with instructions to search for emails that are responsive to the request. The custodian, in turn, simply exports the folder he created regarding this business contract, and you turn this over to opposing counsel, signing off on the discovery as “complete”.

Is it really complete? Nope. Should you, as the attorney have signed off without knowing how this custodian “searched” their email and the limits of what they had done? In this case, simply watching how they collected would have told even the most technophobe attorney that it wasn’t a complete search. In other cases though, the attorney would need to know the limits of email search (Outlook cannot search the contents of attachments, for example), and perhaps understand how the email server archives messages, or if there is a DMS where email might be stored, etc.

Does the ethical duty to oversee legal work being done by non-lawyers apply here? What do you think?

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