The ABA Journal is reporting another development in attorney-client privilege concerns with the booming legal outsourcing market. Here are the questions:
Does the monitoring of cross-border communications by the United States government under the Patriot Act and the Wiretapping Act and the lack of US constitutional protection in foreign countries violate an attorney’s duty to keep client matters confidential?
Does outsourcing act as a waiver of the attorney-client privilege or otherwise permanently affect a client’s legal rights?
One law firm is concerned that the answer is ‘yes’ — and has sued the Bush administration for declaratory judgment and asked the District of Columbia and Maryland bars for ethics opinions on the matter. According to Newman McIntosh & Hennessey, US government interception of attorney-client communications is highly probable because the National Security Agency (NSA) is free to spy on foreign companies. The Newman firm filed the complaint and ethics opinion requests seeking guidance on whether outsourcing of legal services compromises constitutional rights — and wants the court to order law firms to disclose their use of outsourcing and foreign legal support to clients, and to order the US government to establish protocols to shield attorney-client information from US government surveillance.
The complaint and legal inquiry arose out of a solicitation to the Newman firm by Acumen Legal Services (India) Pvt., Ltd./Acumen Solutions, LLC (TX) to provide the law firm with outsourced litigation support. Hennessey, a named partner for the firm, is concerned that information from his personal injury and medical malpractice practice could fall into the hands of competitors who employ outsourced services, through the electronic discovery process. According to Hennessey:
It’s not paranoia. It’s just fact . . . . [N]ow that we’re outsourcing services, we have given no consideration to the ongoing practice of the government harvesting information out there.
Hennessey openly wonders whether explicit client consent should be required before any data is sent abroad.
Legal outsourcing has grown dramatically in the last decade as bandwidth has improved to easily handle large amounts of imaged data, facilitating remote document scanning and low-cost document review, primarily in India.
Here’s why this is a particularly interesting story to watch: A. large law firms are now relying heavily on the practice of outsourcing their legal document imaging and legal document review work to maintain their profit margins. B. The regulation of attorneys is almost entirely a matter of state law. I’m not aware of any federal controls over the attorney-client relationship or attorney-client privilege (except with regard to the recent encroachment on attorney-client communications in the representation of enemy combatants in connection with Guantanamo and Bush administration military tribunals).
The case has been assigned to District Judge Colleen Kollar-Kotelly (chief judge of the Foreign Intelligence Surveillance Court – although this is apparently not a FISA issue).
Tip of the hat to the Blog of Legal Times for breaking this story.