Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
COMMENT
. . .
Retaining or Contracting With Other Lawyers
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should reasonably believe that such services meet the standard of competence under this Rule.
[7] Where the client has chosen or suggested lawyers from other law firms to assist in the provision of legal services to the client on a particular matter, the law firms who will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervising any nonfirm nonlawyers who will be working on the client’s matter. See Rules 1.2 and 5.3. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.
The Commission's Explanation for the Proposal
Model Rule 1.1 requires a lawyer to perform legal services competently. The Commission concluded that, in light of the frequency with which lawyers now outsource work to another lawyer or law firm, the Comments to Rule 1.1 should be expanded to refer specifically to the practice.
The Commission concluded that Model Rule 1.1 is the appropriate location for this guidance for two reasons. First, Comment [1] to Model Rule 1.1 already addresses a related subject: a lawyer’s duty to associate with another lawyer to ensure competent representation of a client. Model Rule 1.1, cmt. [1]. Second, as Formal Opinion 08-451 makes clear, the primary ethical consideration when retaining a nonfirm lawyer is whether the nonfirm lawyer is competent to assist in the representation. The Commission considered other locations for the new commentary, including Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), but concluded that the primary ethical consideration when retaining nonfirm lawyers is the competence of those nonfirm lawyers and that Rule 1.1 is therefore the appropriate location for further guidance.
The first sentence of the proposed new Comment [6] restates a general position expressed in ABA Formal Opinion 08-451 and in the various state and local ethics opinions cited in this Report: lawyers should ensure that the outsourced services will be performed competently and that they contribute to the overall competent and ethical representation of the client.
The first sentence also explains that, ordinarily, a lawyer should obtain a client’s informed consent before retaining a nonfirm lawyer. The Commission was reluctant to conclude that consent is always required, because consent may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information. Nevertheless, the Commission concluded that consent will typically be required, and will almost always be advisable, when a nonfirm lawyer is retained to assist on a client’s matter.
Following the first sentence is a list of other Rules that lawyers should consult when retaining nonfirm lawyers. The Commission concluded that these Rules are commonly implicated in this context and that lawyers should be aware of their potential application.
The next sentence lists several factors that lawyers should consider when retaining nonfirm lawyers. This list is not intended to be exhaustive, but is intended to give lawyers some guidance regarding some of the most important considerations to take into account when retaining nonfirm lawyers.
The third sentence provides guidance regarding the lawyer’s assessment of the work that the nonfirm lawyer performs. In particular, the lawyer should ensure that the nonfirm lawyer’s work is performed in a manner that is consistent with the lawyer’s own duty of competence. This sentence differs from the first sentence in the Comment in that the first sentence requires the lawyer to conclude, before retaining the nonlawyer, that the nonlawyer will contribute to the competent representation of the client. The last sentence suggests, however, that the lawyer should conclude that the services that the nonlawyer actually performed after being retained were performed competently. In many circumstances, the lawyer will not have to independently confirm that the work performed by the nonfirm lawyers was performed competently. In other circumstances, however, it may be necessary to do so (e.g., the lawyer has reason to believe that the work of the nonfirm lawyer may not have been performed competently).
Proposed Comment [7] is intended to describe a lawyer’s obligations when a client requests multiple firms to perform discrete legal tasks concerning the same legal matter. In such situations, the law firms that will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm lawyers who will be working on the client’s matter. (The word “monitoring” is drawn from new proposed language in Rule 5.3 and is described in Part V of this Report.) When making any allocations of responsibility, the proposed Comment reminds lawyers that they (and their clients) might have additional obligations that are a matter of law beyond the scope of these Rules, particularly in the context of discovery.
Finally, although the new Comments address outsourcing, the Commission’s does not use the word “outsourcing” in its proposed additions to the official Comments. The Commission concluded that, in this context, lawyers are more familiar with the concept of “retaining” or “contracting with” a nonfirm lawyer and that the word “outsourcing” would create unnecessary confusion. Moreover, the word “outsourcing” may become dated or fall out of use, to be replaced by a new term-of-art. Thus, the Commission retained the traditional terminology, but concluded that outsourcing as it occurs today is conceptually identical to the retention of nonfirm lawyers.