Virtual Assistants and Ethics Considerations

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Guest post by Kevin Chern.

You have probably seen a lot written about legal process outsourcing and virtual workers. Virtual workers and outsourced legal services providers can help attorneys increase productivity and cut down the costs that might be spent on hiring full-time, in-house staff. Over the next few weeks, I’d like to dig a little deeper into the nuts and bolts of hiring virtual workers.

Making the decision to hire a virtual worker or pay for legal process outsourcing can be as simple as hiring an independent contractor fresh out of law school to do easy tasks, but if you are serious about using virtual workers on a larger scale in your firm and really getting the most out of it, it is important be aware of ethics considerations; price benefits and initial investments; and intangible benefits and costs when weighing the options of paying for a full-time staff, hiring on-site independent contractors, using outsourced service providers or juggling all of the work on your own.

Before diving into an analysis of costs and comparisons, many attorneys begin with the same question regarding virtual workers and legal process outsourcing: “Is it ethical?” Luckily, the simple answer to this question is “yes,” but there are a few things you should consider when using virtual workers or legal process outsourcing.

Legal process outsourcing has been called “the next big IT thing” in the legal industry, and when it comes to phrases like “virtual,” “technology,” or “telecommuting,” state bars and the ABA are often slow to create rules that respond to ethics questions attorneys may have when venturing into cutting-edge business practices. Luckily, for virtual workers and legal process outsourcing, this tradition is not the case. In 2008, the ABA created a formal opinion—Lawyer’s Obligations When Outsourcing Legal and Non-Legal Support Services.

As usual, it is always a good idea to review your state bar rules, but the ABA opinion outlines the basic ethics considerations you should be aware of when hiring virtual workers or outsourced serviced provider:

  • The attorney is ultimately responsible for rendering competent legal services to the client.
  • Attorneys should make reasonable efforts to ensure that the conduct of the lawyers or nonlawyers to whom tasks are outsourced is compatible with their own professional obligations as a lawyer.
  • The attorney should have supervisory authority over outsourced employees.
  • The attorney should notify the client if he plans to outsource any work, and the attorney should have the client sign a consent form if the work deals with materials protected under applicable rules of client confidentiality.
  • Attorneys should avoid assisting the unauthorized practice of law.
  • Fees charged to the client must be reasonable.

You probably noticed that most of these rules are the same rules applied to using in-house assistants and paralegals. In addition to following the guidelines above when working with virtual workers, it is also a good idea to ask questions before choosing which service provider you will use. This will ensure that the virtual worker or outsourced serviced provider is trained to deal with ethics considerations and issues that are unique to the legal industry. Here are a few questions you should ask:

  • How do you ensure security and confidentiality when working with client files and case information?
  • What process do you use to check for potential conflicts when you are working on cases from separate attorneys?
  • Are the virtual workers trained in legal ethics? Does the outsource provider hire paralegals with any other specific training or certification?
  • What system will the attorney and virtual worker use to ensure that the attorney maintains supervision over the work product? In other words, will the virtual worker merely hand over the work product when it is complete, or will the virtual worker keep a detailed task log that the attorney can monitor throughout the process?

After asking these questions and paying attention to relevant ethics rules, attorneys should choose a virtual worker or LPO provider that will allow the attorney to adequately supervise work, preserve client confidences, avoid conflicts of interest, bill fairly and provide quality services in a professional and efficient manner.

(photo: cote)

Kevin Chern is the President of Total Attorneys, a technology-enabled service provider dedicated to assisting with every aspect of small and solo law firm practice management, growth and development.

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  • Excellent quick summary about using virtual workers, Kevin.

    I would just add that, although many people decry the fact that ABA Op. 08-451 allows foreign outsourcing, it also said that there are substantial additional burdens on the hiring attorney under those circumstances. Specifically, an attorney outsourcing to foreign lawyers abroad must determine whether the system of legal education under which the lawyers were trained is comparable to that in the United States; whether the foreign lawyers are subject to a professional regulatory system that inculcates core values similar to those in the United States; the “legal landscape” of the nation to which the services are being outsourced (and, specifically, whether personal property, including documents, may be susceptible to seizure in judicial or administrative proceedings notwithstanding claims of client confidentiality); and whether the judicial system of the target country will provide prompt and effective remedies to avert prejudice to the client in the event of a dispute between the service provider and the outsourcing lawyer. Some of these items also apply to foreign non-lawyer personnel.

  • Hello Kevin,

    Thanks for these wonderful tips that can help many legal professionals out there. I think that outsourcing nowadays has become so common that we forget to keep our guards up, specially when confidential data is being handled. I believe that a non-disclosure agreement (NDA) will be useful even in the virtual world. Although, the implementation may be hard to monitor, specially when your worker works thousand of miles away from where you are. Just my two cents.