Cassandra Burke Robertson, an Associate Professor, at Case Western Reserve University School of Law, has written, A COLLABORATIVE MODEL OF OFFSHORE LEGAL OUTSOURCING. The article was recently accepted by the Arizona State Law Journal. I’m thrilled to see a legal academic provide an analysis of legal outsourcing that looks beyond legal ethics (ethics are important, but have already received extensive coverage from academics). Robertson’s article reviews the operational approaches to disaggregated legal work, and ultimately suggests “a collaborative model [that] would explicitly focus on cooperation, communication, and renegotiation of status and resources.” Robertson’s recommendations are generally in line with the thoughts I outlined in Working with LPO Vendors: Relationship or Transaction? Her commonsense, although perhaps utopian, conclusion is that:
“Parties seeking a successful offshoring practice should instead adopt a collaborative model that builds relationships with both onshore and offshore legal service providers, working cooperatively with the provider best able to complete the projects, maintaining reciprocal communication, managing cultural differences, and acknowledging each participant’s contribution to the whole”
However, Robertson’s analysis is marred by an apparent unfamiliarity with LPO operations in India. For example, in Part III, B WORKING CONDITIONS OF LPO PROFESSIONALS, Robertson suggests that
“because the contract employees suffer periods of unemployment between jobs, and because they also migrate between LPO providers who might be hired by opposing parties, the employees may have incentives to share confidential information.”
While I concur that unemployed contract employees in India may have incentives to share confidential information, I believe these are the same incentives as their counterparts in the U.S., and I also believe that this is much less of a risk in India than in the U.S. Here’s why: The large, reputable LPO vendors in India use the same conflict checking procedures used at large U.S. law firms. In addition, professional reputations are as valuable for Indian lawyers as they are for U.S. lawyers. However, the risk of sharing confidential information is reduced relative to US lawyers because contract employees are much less prevalent at LPO vendors than they are at document review projects in the U.S. Furthermore, all of the reputable LPO vendors have implemented technological solutions that prevent employees from copying or removing information from the cases on which they’re working, whereas in the U.S. this is not always the case.
Companies that are evaluating contract review approaches should consider the risk of confidential disclosure across all options. Scare stories or stereotypes about Indian outsourcing may suggest that the risk is high among Indian firms, but in actuality, there may be more risk of confidential disclosures at a US firm that hires contract workers and doesn’t have technological solutions in place to ensure that employees are not able to copy or remove any information with them. Robertson’s discussion of LPO operations is a good step forward in showing an awareness of increasingly global legal processes, but unfortunately also highlights the legal industry’s relative lack of hands-on experience in offshoring.