As Professor Perlman reported in May, the ABA Commission on Ethics 20/20 has filed final versions of its resolutions and reports with the ABA House of Delegates. I am particularly interested in the outsourcing proposals because, for better or worse, outsourcing has the potential to profoundly shake up the domestic market for legal services (to the extent it has not done so already) and poses potentially serious ethical challenges. I was not privy to any of the Commission's discussions concerning the proposals, but I do have two observations.
1. Although I do not view the proposals as controversial, I expect that there will be a significant public backlash if they are adopted. This prediction might seem odd given that large firms (and some small ones) have been outsourcing for some time and that the Commission's proposals were preceded by Formal Opinion 08-451. Nevertheless, given current economic realities, there are many unemployed, newly-admitted lawyers in virtually every state that likely would be willing to perform the duties being outsourced to attorneys in foreign jurisdictions for marginally higher pay. Indeed, the New York Times reported in 2010 on the phenomenon of attorneys abandoning the U.S. to move to India to work for legal outsourcing firms. The formal recognition and acceptance of outsourcing at this point in time could be viewed in some corners as evidence that the ABA is concerned with protecting the the "wrong" constitutiences. Such complaints are, of course, familiar in debates about the outsourcing of jobs generally but may be particularly heated in this context because the ABA has already faced a great deal of criticism in the media, and lawyers obviously incur far greater costs to join their chosen profession than do most other workers.
2. US-style civil discovery is widely decried by the rest of the world. Even if one is an ardent defender of the system, however, it is noteworthy the extent to which concerns about the burden and expense of discovery are increasingly driving changes to the American legal system. Clients naturally want to minimize costs and outsourcing projects to foreign jurisdictions is entirely logical when a case necessitates the review of millions of documents, as many do given the ubiquitous use of email, instant messenger, etc. At the same time, there are obviously risks in having foreign lawyers engaging in work that heretofore has been predominately performed by attorneys who are trained and cultured in the American legal system and are subject to its disciplinary mechanisms. The belief that civil defendants should be more readily able to obviate the burdens of discovery was also part of the rationale for the Supreme Court's holding in Iqbal, which arguably ushered in a seismic shift in pleading practice.
I wonder whether we will reach a point when it will become necessary to fundamentally rethink civil discovery as opposed to continuing to tinker with its ethical and procedural machinery.