This year, we’ve received questions about remote support staff based out-of-state or even internationally. Between staffing shortages, wage increases, and businesses’ interests in reducing overhead, some attorneys are looking abroad for staffing.
After reviewing our guidance below and considering your business’ needs, an ethics consult might be best used to review oversight policies, client disclosure language, or measures in place to ensure confidentiality and data protection.
The American Bar Association Standing Committee on Paralegals published “The ABA Model Guidelines for the Utilization of Paralegal Services” in 2018. These 10 Model Guidelines suggest best practices for the use and employment of paralegals in a law firm. While not specific to offshore staff, the Guidelines synthesize rules and requirements of delegation, supervision, fees, and responsibilities of a lawyer when employing a paralegal or legal assistant. Guideline 10 sets out the ideal that a lawyer should ensure the paralegal’s participation in continuing education and pro bono activities. The National Federation of Paralegal Associations encourages 24 hours of pro bono service annually by paralegals. While continuing education and pro bono service can be done online or in the community where the paralegal resides, consideration should still be given to this criterium even when contracting with a remote paralegal service.
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility published Formal Opinion 506 earlier this summer on a lawyer’s responsibilities for nonlawyer assistants. This Opinion examines what may be delegated to a paralegal related to the start of an attorney-client relationship, such as tasks related to the fee agreement or performing an initial conflict check. The opinion emphasizes the importance of proper policies, training, and supervision based on the Model Rules of Professional Conduct.
Turning to Ohio’s guidance: “the Ohio Rules of Professional Conduct do not prohibit an Ohio lawyer or law firm from outsourcing legal or support services domestically or abroad, either directly to lawyers or nonlawyers or indirectly through an independent service provider, but applicable rules do impose significant ethical requirements.” Opinion 2009-6 (August 14, 2009), at Syllabus.
The Opinion also indicates that attorneys should ensure that they follow certain recommendations including making a disclosure to clients about the paralegal’s location and obtaining informed consent.
The Board reminds lawyers that they are responsible for any violation of professional obligations by subordinate contractors, lawyers or nonlawyers, and that the subordinate must be appropriately supervised. Particularly when a paralegal is working remotely, confidential and sensitive client information must be communicated securely, ensuring protection of the attorney’s work product and client’s information.
While the use of paralegals and legal assistants can have immeasurable benefit to a lawyer’s practice, there are several considerations that must be addressed and protective measures in place including effective use of technology, written policies, and sufficient training. We urge caution in considering hiring offshore assistants. Attorneys should take extra precautions to ensure that the paralegal is competent in US legal systems and has sufficient knowledge of US laws and rules. Irrespective of where the paralegal is located, the attorney is held responsible for the violations of professional conduct rules or the errors or omissions of a subordinate. Remember that remediation of an error may be more difficult with a fully remote assistant.
We also encourage attorneys to review your OBLIC Legal Professional Liability Policy and review your Cyber Breach and Employment Practices Liability endorsements. Typically, coverage is limited to claims made in the United States and restricts application of law in the US but would not necessarily exclude a claim arising out of an act by a subcontractor abroad. Please review the Cyber Breach Endorsement carefully and contact us with any questions.
Related articles from OBLIC:
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.