I wrote last spring about India's coming growth in knowledge process outsourcing, in particular in the area of legal outsourcing. As if to confirm the trend, Indian outsourcing giant Infosys Technologies launched a division devoted to legal process outsourcing in late 2007.
At least one attorney practicing in the U.S. took note of the trend and didn't like what he saw. Now Maryland lawyer Joseph A. Hennessey wants a federal judge to decide whether offshoring legal work constitutes waiving attorney-client privilege and Fourth Amendment protection from unreasonable search and seizure, since the U.S. government can conduct surveillance of communications between U.S. residents and foreign nationals.
Bethesda-based Newman, McIntosh & Hennessey LLP, Hennessey's employer, filed a complaint for declaratory judgment and injunctive relief in the U.S. District Court for the District of Columbia, reports The Maryland Daily Record. The law firm also wants the ethics committees of the Maryland State Bar Association and the D.C. Bar to issue an opinion.
The MSBA has declined to do so, both because the matter is in litigation and because it involves "political issues that are really not the purview of the committee," says the chairman of its ethics committee.
According to Hennessey's complaint, offshoring legal work "would nullify the reasonable expectation of privacy that American citizens -- litigating purely domestic disputes in U.S. Courts -- would have in the documents that they produce in the course of civil litigation."
President Bush and the Indian and American offices of Acumen, a legal outsourcing company that apparently pitched its services to Newman, McIntosh & Hennessey, are named as defendants in the complaint. Additional defendants include John and Jane Doe lawyers, whom the complaint defines as either competitors of Newman, McIntosh & Hennessey or opposing counsel. Hennessey said he wants to know whether opposing counsel would need to obtain his consent before outsourcing data that could be intercepted by the U.S. government and shared with its allies.
Addressing Hennessey's concerns, the VP of sales and marketing for LawScribe, a company that provides legal process outsourcing, says the sector's usual practices "almost make it a moot point." For instance, it's usually corporations rather than law firms that contract with outsourcers. Simply hiring such a provider qualifies as consent to any waiver of attorney-client privilege.
William A. McComas, a partner in Shapiro, Sher, Guinot & Sandler P.A. who writes about the law and technology, said law firms that outsource should consider moves such as requiring clients to sign a waiver before representing them. He noted that, to address client concerns about e-mail security, he began including in client retention agreements a statement that, unless he specifically informs clients otherwise, he will use e-mail to communicate about their cases.
Andrew M. Perlman, a Suffolk University Law School professor quoted in the story, says the federal court may decline to consider the matter because judges generally prefer to focus on areas in which there is no clear present dispute and the plaintiff is simply seeking an answer to a question.