international legal outsourcing - a trend washington can't ignore

8/9/2019 International Legal Outsourcing - A Trend Washington Can't Ignore

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Hello Scribd (and Internet) Readers – This is an unpublished law review piece I wrote back in 2004-200 as a law student! It"s ad#ittedl$ na%ve in a nu#ber o& respects! It"salso not &inal as this is the latest version I could &ind (this was be&ore the da$s o& 'ropboso I had to re#e#ber to e#ail #$sel& ever$thin* which* so#eti#es* I did not do)!Thouht it #iht be interestin as an arti&act!

I"ve le&t co##ents &ro# #$ editor* as well as so#e o& #$ own* inline!

Hope $ou &ind it interestin!

Thanks*

'an+ebruar$ ,,* 20,

I. Introduction

t a lare downtown law &ir# a partner is &inishin up her da$! She has .ust

co#pleted a con&erence call with a client! Their discussion has raised an issue o& &irst

i#pression &or the attorne$! s she prepares to walk out the door she dra&ts a /uick e#ail

to her associate* outlinin the issue and re/uestin that the associate dra&t a #e#o

addressin the /uestion! The e#ail arrives in India .ust as the associate is beinnin his

da$! The associate will dra&t the #e#o b$ the end o& his da$* and return it to the partner*

.ust as she is co#in into the o&&ice &or the da$!

Si#ultaneousl$* across town* a s#all solo practicioner is buried in a stack o&

virtual paper! She recentl$ bean representin a &a#il$ in a wron&ul death suit aainst

their #other"s &or#er e#plo$er! Her re/uests &or discover$ and interroatories have

$ielded a sini&icant volu#e o& docu#ents! s she prepares to catch her bus &or the short

ride ho#e* she uploads the docu#ents to the secure server o& an international leal

research &ir#! The &ir# will review the docu#ents* oranie the#* and return the# with

suestions &or &urther interroatories and discover$ re/uests in less than sevent$ two

hours!


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These scenarios are eaerated* but the$ are not unrealistic! 1hile #uch o& the

S leal co##unit$ has $et to e#brace the 3India leal outsoucin trend* the te#poral

and econo#ic e&&icienc$ o& these services is #akin this t$pe o& opportunit$ harder and

harder &or do#estic leal service providers to inore!, Increasin lobal econo#ic and

technoloical interconnectivit$ have #ade this t$pe o& corroboration cheaper and #ore

e&&ective!

In concert with* or probabl$ #ore accuratel$* as a result o&* these increased

international connections* #an$ S attorne$s now have a #uch larer presence abroad

then the$ did two decades ao

2

! 1hether the$ are doin so b$ de&ault* in providin

counselin services to lare corporations whose actions have sini&icant lobal

conse/uences* or directl$* b$ takin advantae o& increasin reciprocit$ o&&ered to S

leal pro&essionals b$ the international .urisdictional bodies* these attorne$s are #akin

their presence &elt outside o& both their state and national leal .urisdictions!5

In contrast* .urisdictions within the nited States have been slow to provide

si#ilar reciprocit$ to international leal pro&essionals who wish to ain access to the

#erican leal #arket!4 The 6* as well as local .urisdictional bodies* has assu#ed a

, See generally 7achar$ 8! 6ossenbroek and 9uneet :ohe$* Should Your Legal Department Join the IndiaOutsourcing Craze?* 22 ;


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dut$ to ensure that those practicin law in a iven .urisdiction #eet certain #ini#u#

standards o& co#petence in order to practice law! However* these local bodies can no

loner a&&ord to inore the political reciprocal repercussions* as well as the

overwhel#in econo#ic e&&icienc$*? o& outsourcin!

The 1ashinton leislature should take action to clari&$ the status o& these

3international leal pro&essionals! >onclusive action b$ the leislature to de&ine the

scope o& practice &or these individuals will allow 1ashinton entrepreuners to capitialie

on what is sure to be a pro&itable #arket in international leal outsourcin! >oncerted

action b$ the leislature will encourae the develop#ent o& this $oun industr$ in

1ashinton! It will also establish 1ashinton as a ke$ pla$er in this e#erinF industr$!

9ar t II o& this rticle will describe the international leal outsourcin trend* and its

develop#ent! 9art III will &ocus on the uni/ue situation o& outsourced international leal

pro&essional in liht o& current ad#ission to practice and unauthoried practice o& law

uidelines and cases and wh$ those rules are inade/uate to handle the in&lu o&

outsourced international leal work! 9art IJ will outline the reasons that 1ashinton

should take this speci&ic step in order to &acilitate the participation o& international

outsourced leal pro&essionals in the 1ashinton leal #arket! nd 9art J will ive a

brie& outline o& what a possible new set o& leal uidelines #iht look like!

it is the position o& this author* as discussed in detail below* that this rule does not etend su&&icient practice&leibilit$ to &orein leal pro&essionals to #ai#ie the e&&icienc$ o& this resource! See discussion supra 9arts III() and III(C)!

>arol ! ;eedha#* The Licensing o! )oreign Legal Consultants in the *nited States* 2, +


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s an overarchin the#e o& this article* the author would also like to spur debate

on the topic o& international leal outsourcin! There has been surprisinl$ little acade#ic

writin on this i#portant and i#pendin topic!B Speci&icall$* the topic was hotl$ debated

durin the 2004 presidential race!= 1hile the issues o& protectionis# and &ree trade are

co##on a#on both other t$pes o& outsourcin and leal outsourcin* the barriers to the

outsourcin o& leal work present i#portant .urisdictional issues that are not &ound in

other industries!,0It is the author"s hope that this piece will inspire others to enae this

e#erin pheno#enon!

II. The Nature of the Current International Outsourcing Trend

A. Predictions Indicate Continued Growth of Outsourcing

The international leal outsourcin industr$ is still ver$ $oun,, but predictions

suest that it will to continue to row! It is anticipated that* in the $ears &ro# 200, to

200* the a#ount invested nationall$ in business process outsourcin* includin those

&ocused on leal services* will triple!,2 Speci&icall$* the worldwide leal outsourcin

B

1estlaw search on :arch ,2* 200 in law review database &or Minternational leal outsourcinM producedno docu#entsG a search &or 3leal outsourcin and India* produced three docu#ents* one o& which is citedin this work* another was a >@C dealin with the ethics o& o&&shore outsourcin and the third was unrelatedto the present topic!= See+ e(g( >o##ission on 9residential 'ebates* 'ebate Transcripts* 2004 Transcripts* a/ailale at

httpwww!debates!orpaesdebtrans!ht#l (last visited :arch ,2* 200)G see also Nahoo ;ews (9ressRelease) Indian Legal Support Center ,xpands+ a/ailale at httpwww!openoutsource!co#resource-datedB5-IndianO20@ealO20SupportO20>enterO20Cpands!pht#l (8une ,?* 2004) (reportin that theoutsourcin o& white collar .obs to India had beco#e a hot topic in the presidential ca#pain and reportinthe response b$ an outsourcin pro&essional to recent co##ents #ade b$ then presidential candidateSenator 8ohn Aerr$* de&endin the econo#ic bene&its o& outsourcin)!,0 +or a discussion o& restrictions on eneral outsourcin see ;ick Steidel* Congress has Its Say on Sending

Jos O!!shore* ST! @CLIS@TRCS* :a$ 2004* Jol! 50* Issue * 5, (reportin on &ederal leislation passed in

8anuar$ 2004 prohibitin the &ederal overn#ent &ro# outsourcin an$ &ederal .ob to a contractor that plansto send the .ob overseas)G 8ustin :arks* The Outcry O/er Outsourcing * ST! @CLIS@TRCS* :a$ 2004* Jol!50-52* Issue (reportin on leislation passed in so#e state leislatures that would prohibit state contractswith contractors outsourcin .obs overseas)G See supra Section III &or a #ore detailed discussion o& the possible restrictions on leal outsourcin speci&icall$ in 1ashinton State!,,C#ail &ro# @eon Steinber* >hie&-eecutive-o&&icer* Intellevate* @@>* to author* (8an! 2B* 200* 0F,09ST) (on &ile with author) (#ost #a.or oraniations involved in international leal outsourcin started upin the last &ive $ears)!,2 Carl insworth* 'uh? Legal Wor0 )armed Out To India* ,2 ;!8! @1! 1A@N! ;C1S99CR ?,* :ar! 5,*2005 at col!,! (statin that 3revenues &ro# all such business process outsourcin operations* includin those


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industr$ is epected to row to a E,?5 billion b$ 200?!,5 senior director at a #a.or leal

consultin &ir# has stated that the outsourcin o& leal work 3strikes #e as the biest

wave in the last &ive $ears in its abilit$ to rework both sides--law &ir#s and law

depart#entsM o& the leal services industr$!,4 6$ 20,* it is predicted that 4B=*000 !S!

law$er .obs* nearl$ BO o& the &ield* will shi&t abroad!, @isted below are a &ew notable

characteristics o& the industr$ that de#onstrate the inevitabl$ o& this trend!

1) These International Legal Professionals are Lawyers

:an$ o& these international leal pro&essionals are law$ers!,? :ost are Indian*

speak &luent Cnlish and were educated in India"s co##on-law leal s$ste#* a s$ste#

that is ver$ si#ilar to that o& the nited States!,F These attorne$s undero three to &ive

$ears o& post-secondar$ studies in law!,B ll levels o& leal education in India are tauht

in Cnlish* includin the riorous leal trainin and Socratic teachin st$le!,= So#e o&

these Indian attorne$s were actuall$ educated in S law schools!20


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;ot onl$ are these outsourced leal pro&essionals are attorne$s* but the$ are

per&or#in the sa#e work that S law$ers per&or#! Speci&icall$* patent pre-&ilin search

and anal$sis work*22 patent application work*25 vendors" contracts*24 consu#er &inance*2

con&identialit$ contracts and* so#ewhat ironicall$* outsourcin aree#entsG2? plans are

also bein developed to #ove leal electronic databases abroad!2F

+urther#ore* while these international law$ers are not onl$ doin the sa#e work

as S law$ers* one individual close to the industr$ believes that the /ualit$ or technical

skill o& international law$ers to per&or# these tasks #a$ actuall$ #eet or eceed the skill

o& S attorne$s!

2B

nother individual involved with leal outsourcin has boasted that

these international attorne$s could handle nearl$ an$ kind o& leal work !2= The potential

o& international leal pro&essionals as attorne$s is &urther de#onstrated b$ the &act that

#an$ corporations use these pro&essionals instead o& hirin a do#estic te#porar$

attorne$!50

'espite the con&idence that so#e #a$ have in these international leal

pro&essionals* the actual abilit$ o& these international leal pro&essionals to handle #ore

co#ple work is still larel$ untested!5, t this point* #ost o& the work that these

outsourced pro&essionals are handlin is the &airl$ repetitive* ele#entar$* work that does

not re/uire sini&icant epertise in a particular &ield!52

22 Helen >oster* #rie!ed in #angalore* :CRI>; @1NCR * ;ov! 2004* at =B!25 +ried* in!ra note ,!24 +ried* in!ra note ,G insworth* in!ra note ,2!

2 insworth* in!ra note ,2!2? +ried* in!ra note ,!2F insworth* in!ra note ,2!2B +ried* in!ra note , (client o& outsourced leal provider stated 31e wouldn"t be a&raid to send an$thinto Pour outsourced counselQG 6ossenbroek* supra note ,* at 2!2= Schoenberer* in!ra note ,F at L5!50 insworth* in!ra note ,2!5, See in!ra 9art II()2 &or a #ore detailed discussion o& the work that is currentl$ bein handled b$outsourced leal pro&essionals!52 Id(


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&) Lawyers' Clients are (ri%ing the International Legal Outsourcing Trend

6usinesses* and not law &ir#s* are drivin the trend o& international leal

outsourcin!55 :an$ corporations have alread$ established R ' centers abroad* and as

a result* are co#&ortable dealin with the loistics o& cross-border co##unications!54

This is especiall$ true o& technolo$ co#panies* so#e o& which have directl$ established

leal o&&ices abroad! Speci&icall$* in 200,* Leneral Clectric opened a leal o&&ice in

India!5 isco and Sun :icros$ste#s are enaed in the process*

5F

and

Intel and hie&-eecutive-o&&icer* Intellevate* @@> (;ov! 22* 2004)

(statin that corporations tend to be less politicall$ sensitive* at least co#pared to law &ir#sG co#panies inthe technolo$ &ield also see# to be particularl$ co#&ortable outsourcin leal work abroadG these &acts#a$ be because these co#panies have* b$ nature* an international &ocus* and have alread$ tested and

proven the co#petence o& international pro&essionals in other arenas)!54 Id(5 insworth* in!ra note ,2!5? >oster* in!ra note 22 at =B!5F 6ossenbroek* in!ra note ,* at 2!5B 6renda Sandbur* India In0ed * R C>


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s &ar as bene&its* international leal outsourcin is alread$ showin sins that it

will be pro&itable &or those involved in the process o& outsourcin and cost e&&ective &or

those who utilie outsourcin services!

+irst* outsourcin is econo#icall$ e&&icient!4, The disparit$ between the cost o&

leal services per&or#ed b$ an #erican leal pro&essional and those per&or#ed b$ an

Indian leal pro&essional is sini&icantG the cost o& a patent search done do#esticall$ is

nearl$ ?0O hiher than one done in India!42 6$ utiliin this opportunit$* oraniations

save #one$ on their leal &ees! This in&lu o& capital allows do#estic co#panies to be

#ore co#petitive!

45

'ependin upon whether the oraniation is a law &ir# or

corporation* these new &unds can then be reinvested in #ore innovative or specialied

business practices that* in turn* will brin reater pro&its and #ore .obs!

isco also boast that outsourcin hassaved the# #illions in leal &ees)!42


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present econo#$ is creatin a de#and &or attorne$s who can understand the co#pleit$

and nuance o& cross-border leal issues!4F Increasinl$* those attorne$s who have leal

eperience in both the S and other countries are in reat de#and!4B llowin

international leal pro&essionals to participate #ore &ull$ in the S leal s$ste# will

create a population that has those characteristics!

9rovidin international leal pro&essionals increased access to the S leal

#arket will* in turn* encourae &orein leal .urisdictions to open their #arkets to S

attorne$s! Reciprocit$ has been a drivin &actor in the develop#ent o& reulations

overnin access to cross-border leal #arkets!

4=

In certain &orein .urisdictions*

#e#bers o& a speci&ic State bar have been denied entr$ into a leal #arket because the

law$er"s ho#e .urisdiction did not provide access to the attorne$s &ro# the &orein

.urisdiction!0 It #a$ also encourae the leal s$ste#s o& other countries to o&&er reater

reciprocit$ to S law$ers seekin to assist clients in &orein countries!

I& allowed to trul$ per#eate all levels o& the leal pro&ession in this countr$* the

outsourcin trend could also provide leal services at a cost so low as to #ake leal

services available to those who do not have access to the# toda$!, Studies have shown

that rouhl$ hal& o& those below the povert$ line o without leal services because the$

are too epensive!2 International leal pro&essionals can provide #an$ o& these sa#e

4F ;eedha# in!ra note at ,,2BG see also 8ohn ! 6arrett* 8r!* International Legal ,ducation in *(S( La$Schools- %lenty o! O!!erings+ #ut Too )e$ Students* 5, I ;TK@ @1! B4 (,==F)G :ar$ >! 'al$* The

Cultural+ ,thical and Legal Challenges in La$yering !or a .loal Organization- The &ole o! the .eneralCounsel * 4? C:


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leal services that do#estic providers do* &or rouhl$ hal& the cost!5 Interal to this idea

is the role o& teleco##unications technolo$! 1hile it is di&&icult at this point to

anticipate how* eactl$* an outsourced attorne$ will aid an indient individual* it is not

i#possible to describe a &ew likel$ scenarios! n outsourced law$er represents a tenant

aainst a landlord seekin to evict! The outsourced law$er &irst #eets with the client* via

telephone or video telecon&erence! The attorne$ then prepares a #otion or brie& that the

he either sub#its online to a .ude* or arues* via telecon&erence or video telecon&erence*

at the hearin! Si#ilarl$* a couple seekin divorce could #eet with a trained leal epert

via telecon&erence! 1hile both partners will eventuall$ re/uire individual representation*

the initial visit can serve to help the couple bein the process and understand what

avenues to &ollow up on!

III. The Current $tate of International Legal Professionals

ruabl$ there are* alread$* su&&icient #easures in place to provide &or the

appropriate and econo#icall$ bene&icial use o& the international leal outsourcin

industr$ in this state! There are a nu#ber o& avenues available to international attorne$s

enerall$* to participate in 1ashinton"s leal #arket!4 The &ollowin discussion will

outline these #ethods and eplain wh$ the$ are insu&&icient to #eet the needs o& the

international outsourcin trend!

5 See supra 9art II()(2)* while speci&ic cost data is not available &or #atters in which internationalattorne$s #iht represent indient individuals* it can be assu#ed that i& patent searchin* a #orespecialied t$pe o& work* is ?0O cheaper* representation in various civil #atters would be less epensive b$a considerable #arin!4 See supra 9art III!


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+irst is should be stated that a search b$ the author has revealed are no current

court rules or leislation* in 1ashinton or an$ other .urisdiction* speci&icall$ overnin

the outsourcin o& leal work to international leal pro&essionals!

The 1ashinton State Rules o& 9ro&essional >onduct (31R9>)* d#ission to

9ractice Rules (39R)* and Leneral Rules (3LR)*? de&ine the scope o& the practice o&

law* who #a$ practice law and how that practice is to be conducted!F The eneral polic$

behind the d#ission to 9ractice Rules is to keep non-law$ers &ro# enain in the

practice o& law! 1hile attorne$s that violate the Rules o& 9ro&essional >onduct are sub.ect

to sanctions &ro# the bar* the public has no recourse &or poor* illeal* or nelient

per&or#ance o& these &unctions b$ a nonlaw$er!B 6$ li#itin access to the law$erin

pro&ession* the d#ission to 9ractice Rules* and their e&&ective en&orce#ent* establish a

#ini#u# standard o& both ethics and per&or#ance that all leal practitioners in this state

#ust uphold!

Reardin the practice o& law itsel&* even dra&ters o& LR 24* which de&ines the

3practice o& law in 1ashinton State* were hesitant to place an$ clear boundaries on

what is and what is not the practice o& law! However* LR 24 does establish a &ew speci&ic

actions or behaviors as the practice o& law

3 (,) Livin advice or counsel to others as to their leal rihts or the leal rihtsor responsibilities o& others &or &ees or other consideration!(2) Selection* dra&tin* or co#pletion o& leal docu#ents or aree#ents whicha&&ect the leal rihts o& an entit$ or person(s)!(5) Representation o& another entit$ or person(s) in a court* or in a &or#alad#inistrative ad.udicative proceedin or other &or#al dispute resolution process

nu#ber o& searches &or leislation or rules overnin outsourcin ca#e up &ruitlessG however* there&erences discussed in supra note ,0 reardin possible bans on state contracts oin to co#paniesinvolved in outsourcin #a$ eventuall$ have an in&luence on leal outsourcinG See H6 ,F24 * =th Re!200 Sess!* (1a!) &or a cop$ o& a current house bill in 1ashinton state that would serve a si#ilar purpose!? See 1SH! R CJ! >!* R @CS 9R>TI>C LR 24 (?th ed)!


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or in an ad#inistrative ad.udicative proceedin in which leal pleadins are &iledor a record is established as the basis &or .udicial review!(4) ;eotiation o& leal rihts or responsibilities on behal& o& another entit$ or person(s)!=

The present anal$sis will not delve #uch &urther into this topic! However* there is a bod$

o& case law and other scholarl$ works on the topic to which the reader #a$ turn &or

&urther elucidation!?0

Liven this de&inition* d#ission to 9ractice Rule , establishes that 3Ccept as

#a$ be otherwise provided in these rules* a person shall not ! ! ! practice law in this state*

unless that person has passed the 1ashinton State bar ea#ination ! ! ! ?,


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international attorne$ who has ained ad#ission to one state"s bar #a$ &ind it easier to

swear in as an attorne$ in 1ashinton under this rule than to seek ad#ission to throuh

9R ,!?

9R ,4 provides &urther opportunities &or an international leal pro&essional to

ain access to this .urisdiction"s leal industr$! The applicant #ust #eet a nu#ber o&

ad#inistrative re/uire#ents and pa$ an annual &ee!?? This rule per#its the &orein law

consultant to enae in the practice o& li#ited practice o& law provided that the applicant

not ,) appear in person in court &or an$ person other than hi#sel& or hersel&G 2) prepare

an$ docu#ent relatin to the trans&er o& real estate located in the SG 5) prepare an$ will

or trust instru#ent e&&ectin the disposition on death o& an$ propert$ located in the S or

an$ instru#ent relatin to the estate o& a deceased person in the SG 4) prepare an$

instru#ent e&&ectin #arital or parental rihts* custod$ o& children or rihts and duties o&

a resident in the nited StatesG ) render an$ pro&essional advice on the law o& this state

or o& the S* ecept on the basis o& advice &ro# a person dul$ /uali&ied and entitled

? See discussion o& 9R , in!raG the &ew /uali&ications re/uired b$ 9R ,B are hardl$ as strenuous astakin the bar ea# and #eetin the other re/uire#ents o& 9R,!?? 3(i) 9resent satis&actor$ proo& o& both ad#ission to the practice o& law* toether with current oodstandin* in a &orein .urisdiction* and active leal eperience as a law$er or counselor at law or thee/uivalent in a &orein .urisdiction &or at least o& the F $ears i##ediatel$ precedin the applicationG and(ii) 9ossess the ood #oral character and &itness re/uisite &or a #e#ber o& the 6ar o& the State o&1ashintonG and (iii) Cecute under oath and &ile with the 6ar ssociation two copies o& an application insuch &or# as #a$ be re/uired b$ the 6oard o& LovernorsG and (iv) +ile with the application a certi&icate&ro# the authorit$ in such &orein countr$ havin &inal .urisdiction over pro&essional discipline* certi&$inas to the applicants ad#ission to practice* and the date thereo&* and as to the ood standin o& such law$eror counselor at law or the e/uivalent* toether with a dul$ authenticated Cnlish translation o& such

certi&icate* i& it is not in CnlishG and (v) +ile with the application a letter o& reco##endation &ro# one o&the #e#bers o& the eecutive bod$ o& such authorit$ or &ro# one o& the .udes o& the hihest law court orcourts o& oriinal .urisdiction o& such &orein countr$* toether with a dul$ authenticated Cnlish translationo& such letter* i& it is not in CnlishG and(vi) 9rovide with the application such other evidence o& theapplicants educational and pro&essional /uali&ications* ood #oral character and &itness and co#pliancewith the re/uire#ents o& this rule as the 6oard o& Lovernors #a$ re/uireG and (vii) 9a$ upon the &ilin o&the application a &ee e/ual to that re/uired pursuant to rule 5(d)(2) to be paid b$ an attorne$ applicant totake the bar ea#ination! 1SH! >T R @C !9!R! ,4!


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(otherwise then b$ virtue o& havin been licensed under this rule) to render pro&essional

leal advice in this stateG In addition* those who /uali&$ as leal consultants under this

rule #ust also sub.ect the#selves to the pro&essional disciplinar$ rules o& this state!?F

>urrentl$ under review in 1ashinton State* as o& 8anuar$ 5,* 200* is the :odel

Rule &or Te#porar$ 9ractice b$ &orein law$ers!?B This rule is desined to &acilitate the

practice o& law b$ &orein law$ers who are seekin to per&or# te#porar$ services in the

nited States!?= This rule would si#pli&$ the ad#issions procedure &or those &orein leal

pro&essionals who co#e to the nited States onl$ brie&l$ in order to neotiate a

transaction on behal& o& a client in the law$er"s own countr$!

F0

The rule provides &ive

li#ited circu#stances in which this &orein leal pro&essional #a$ participate in the leal

process in the S!F, 3Such a law$er does not enae in the unauthoried practice o& law in

this .urisdiction when on a te#porar$ basis the law$er per&or#s services in this

.urisdiction that

(,) are undertaken in association with a law$er who is ad#itted to practicein this .urisdiction and who activel$ participates in the #atterG(2) are in or reasonabl$ related to a pendin or potential proceedin be&orea tribunal held or to be held in a .urisdiction outside the nited States i&the law$er* or a person the law$er is assistin* is authoried b$ law or b$order o& the tribunal to appear in such proceedin or reasonabl$ epects to be so authoriedG(5) are in or reasonabl$ related to a pendin or potential arbitration*#ediation or other alternative dispute resolution proceedin held or to beheld in this or another .urisdiction* i& the services arise out o& or arereasonabl$ related to the law$er"s practice in a .urisdiction in which thelaw$er is ad#itted to practiceG

?F Id(?B 1hile the 1S6 website does not indicate that this rule is currentl$ under review* the 6 website* aso& :arch 5* 200 states that this rule is under review in 1ashinton! :CRI>; 6R SSITIC;TCR +


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(4) are not within pararaphs (2) or (5) and(i) are per&or#ed &or a client who resides or has an o&&ice in a .urisdiction in which the law$er is authoried to practice to theetent o& that authoriationG or (ii) arise out o& or are reasonabl$ related to a #atter that has a

substantial connection to a .urisdiction in which the law$er isauthoried to practice to the etent o& that authoriationG or () are overned pri#aril$ b$ international law or the law o& a non-nitedStates .urisdiction!

However* 1ashinton has not $et adopted this rule!

Si#ultaneousl$* 1ashinton Rule o& 9ro&essional >onduct ! li#its the #eans b$

which a licensed attorne$ #a$ assist a non-law$er in an$ action that #iht constitute the

practice o& law! Speci&icall$* a law$er shall not 3b) assist a person who is not a #e#ber o&

the bar in the per&or#ance o& an activit$ that constitutes the unauthoried practice o& lawG

or c) per#it his or her na#e to be used as a law$er b$ another person who is not a law$er

authoried to practice law in the state o& 1ashinton!F2 >ase law has clari&ied the

#eanin o& this ruleG speci&icall$ the 1ashinton State Supre#e >ourt has also held that

an attorne$"s rubber sta#pin o& instru#ents prepared b$ a collection aent* in essence*

had enabled the aent to practice law* and was held an in&raction o& the rule !F5

+inall$* on a #ore eneral note* 1ashinton allows closin o&&icers to per&or#

speci&ic preparation o& closin docu#ents related to loans and trans&ers o& propert$!F4 9R

,2 authories la$ persons who have speci&ied /uali&ications to prepare leal docu#ents

related to real estate closins and personal propert$ transactions!F This rule li#its

F2 1SH! >T R @C R!9!>! !F5 Yount /( 4arell * ,F 1ash!2d 2FB* ,5 9!2d 50= (,=45)!F4 1SH! >T R @C !9!R! ,2G 1ritten in response to public pressure a&ter the 1ashinton state Supre#e>ourt held that a law* authoriin closin o&&icers to per&or# these t$pes o& tasks* was unconstitutional* seeA R@ 6! TCL@;'* 2 1SH! 9R>!* ':ISSIC R @C ,2 (?th ed)G see also #ennion /(

5assler ,scro$+ Inc( =? 1ash!2d 445 (,=B,) (R>1 ,=!?2 held unconstitutional as violatin the separationo& powers)!F Speci&icall$* 3a person certi&ied as a closin o&&icer under this rule #a$ select* prepare and co#pletedocu#ents in a &or# previousl$ approved b$ the 6oard &or use in closin a loan* etension o& credit* sale or other trans&er o& real or personal propert$! Such docu#ents shall be li#ited to deeds* pro#issor$ notes*


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the do#estic applicant!B, This is an a#ount &or which #an$ S law students #ust take

out a loan!B2 Liven that &act* it is certainl$ not unreasonable to epect that an

international leal pro&essional* #ost likel$ &ro# India or another countr$ in which

inco#e is less than that o& individuals in this countr$* would not have the resources

available to #eet that re/uire#ent!B5

This re/uire#ent see#s a bit super&luous because #an$ international leal

pro&essionals have likel$ alread$ passed a bar ea# o& so#e sort!B4 The 1ashinton State

6ar ssociation is willin to* in e&&ect* reconie the leal education obtained b$

international attorne$s educated outside o& the S in a co##on-law .urisdiction b$

allowin the# to sit &or the bar ea#!B It see#s a bit counterintuitive that 1S6 be

unwillin to reconie* at least on so#e li#ited level* the bar ea# taken in that sa#e

.urisdiction!

+inall$* debatin this issue at this point is probabl$ a bit pre#ature! Realisticall$*

an$ proress initiall$ #ade in clari&$in the role o& outsourced international leal

pro&essionals* is ver$ unlikel$ to be #ade in the &or# o& &ull reciprocit$* such as that

o&&ered to #e#bers o& other S bar associations o&&ered under 9R ,B!B? :ore likel$ is

so#e &or# o& li#ited reciprocit$!BF +urther#ore* such an epansion would likel$ lead to a

B, See in!ra note ?,!B2 6ar loans are o&&ered to #ost law students at #ost law schoolsG a search o& 3bar ea# loans on a searchenine reveals that #ost S law schools provide this t$pe o& &inancin to law students!B5To provide a basis o& co#parison* averae 9er capita L'9 in India is E2*=00 versus E5F*B00 in the nited

States* >entral Intellience enc$* 1orld +act 6ook* Rank ACT ,02 (2005)G India also re/uires that individuals pass a bar ea# be&ore practicin law there* drienne Sanders* The Jet Set- Shantanu Supure #elongs to a .eneration o! La$yers at 'ome in the World * THC R C>


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reea#ination o& the ad#inistration o& the 1ashinton State bar ea# in eneral* the

#eans o& whose ad#inistration* in #an$ wa$s* is alread$ outdated!BB s a result* this

/uestion* o& whether the bar ea# is too sini&icant a barrier* #a$ be resolved b$ so#e

other #eans!

9R ,4 is also incapable o& handlin the e#erin trend o& international leal

pro&essionals! +irst o& all* evidence suests that* &or an$ nu#ber o& reasons* the there are

ver$ &ew international leal pro&essionals that have ained ad#ission as +orein @eal

>onsultants!B= +urther* the scope o& practice &or these &orein leal consultants is ver$

li#ited!

=0

To brie&l$ review* these individuals are restricted &ro# preparin an$ deed*

#ortae* will* trust* instru#ent related to #arital relations* or renderin leal advice on

the law o& the state o& 1ashinton* or an$ other territor$ in the S or 'istrict o&

>olu#bia!=, 1hatever abilities these individuals #iht have had to contribute to the

1ashinton leal industr$ are severel$* i& not co#pletel$ #uted b$ this li#ited practice

scope! In order to #ake the best use o& these international leal pro&essionals* the$ #ust

be per#itted to act in a less li#ited arena!

Si#ilarl$* the new :odel Rule &or Te#porar$ 9ractice b$ &orein attorne$s* i&

adopted* will not provide su&&icient outsourced international leal pro&essionals practice

&leibilit$!=2 These pro&essionals would be per#itted to practice in a ver$ li#ited scopeG

essentiall$ onl$ under the supervision o& a licensed do#estic attorne$ and onl$ on issues

BB In liht o& other pro&essional ea#s* #ost o& which are o&&ered in a #uch #ore accessible &ashion* the bar ea# see#s a relic o& an ea# when #an$ pro&essional and other t$pes o& ad#ission ea#s are takenelectronicall$! #on others* >9 ea#s are &re/uentl$ ad#inistered at testin centers in #an$ locations!See #erican Institute o& >erti&ied 9ublic ccountants* >9 Ca# In&or#ation* a/ailale at httpwww!cpa-ea#!ortestinde!ht#l (last visited :ar! ,0* 200)!B= ;eedha#* in!ra+ at ,,5=! In the neihborin state o& T R @C !9!R! ,4=2 See in!ra 9art III(C)4


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related to a #atter that is pendin in the &orein attorne$"s ho#e .urisdiction!=5 9olic$

reasonin that the 6 has provided reardin the basis &or adoptin this new rule onl$

ree#phasies the rule"s li#ited scope!=4


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I*. International Legal Consultants in +ashington $tate

The case &or creatin a uni/ue status &or international leal pro&essionals in

1ashinton State is stron! The inevitable rowth o& the industr$ co#bined with

1ashinton"s tech-heav$ econo#$ al#ost uarantees epansion o& the penetration o&

international leal pro&essionals into the 1ashinton leal #arket!,00 Cstablishin a

speci&ic practice desination &or these pro&essionals will serve a nu#ber o& purposes!

+irst* speci&ic leislation will clari&$ how an attorne$ #a$ or #a$ not use this valuable

resource! Second* such a desination will place 1ashinton state and the 1ashinton

State bar in a better position to reulate the in&lu o& this work that will inevitabl$ co#e

to the state as a result o& the econo#ic technolo$ in&rastructure that has #ade its ho#e

in this state!,0, It is an opportunit$ &or 1ashinton to provide the leal in&rastructure &or

an industr$ that will* undoubtedl$* row* creatin .obs and brinin revenues to

1ashinton State! Third* epandin reciprocit$ in 1ashinton is an opportunit$ &or the

leal co##unit$ in this state to encourae &orein .urisdictions to provide reater

reciprocit$ to attorne$s &ro# this state who wish to epand their practice abroad! +inall$*

it is a sini&icant opportunit$ to epand the services that are available to 1ashinton"s

indient population!,02

+ailure to clari&$ the role o& outsourced international leal pro&essionals will

inevitabl$ result in the unauthoried practice o& law in this .urisdiction!,05 :an$ o& these

international leal pro&essionals are well trained attorne$s!,04 The work product that these

leal pro&essionals will produce is likel$ to be on par with that which S paraleals or

,00 >oster* in!ra note 22 at =B,0, See in&ra 9art II(6),02 n$ statistics available on the lack o& access to .ustice a#on indient persons in 1ashintonU,05 See discussion in!ra 9art III(C) unauth prac o& law,04 See discussion in!ra 9art II(),


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.unior associates #iht produce!,0 Liven these &acts* the te#ptation will be stron &or a

practicin attorne$ in this state* either intentionall$ or inadvertentl$* to sub#it an

outsourced leal pro&essional"s work as their own! 1hile there are no speci&ic rules

&orbiddin the use o& these international leal pro&essionals on an ad#inistrative level* an

attorne$"s rubber-sta#pin o& work per&or#ed b$ a non-law$er is considered the

unauthoried practice o& law in 1ashinton!,0? The creation o& a speci&ic desination or

practice &or these international leal pro&essionals will alleviate this possible proble#!

There are #an$ who could arue that the o&&shorin trend #ounts no di&&erent a

challene to the traditional leal in&rastructure than have the pro&essions o& other

do#estic 3non-law$er leal pro&essionals in 1ashinton* like paraleals* paraleal

assistants or even leal secretaries! 1hile the scope o& the practice o& law has chaned

over the $ears as a result o& these challenes* the law$er"s pro&ession re#ains a viable

and reconieable entit$!,0F

There are a nu#ber o& reasons that the e#erence and availabilit$ o& &orein leal

pro&essionals presents an altoether di&&erent challene than have those brouht b$ other

leal pro&essions! +irst* these international leal pro&essionals have been trained as

.urists!,0B There&ore* their thinkin* reasonin* and writin skills are #uch #ore likel$ to

approi#ate those o& S law$ers than those o& other leal pro&essionals! +urther* havin

seen their work product* S law$ers are likel$ to reconie the sini&icant abilities o&

these international leal pro&essionals! Second* it is businesses* a #a.or client o&

,0 See discussion in!ra 9art II()2,0? See discussion in!ra 9art III(C) unauth prac o& law

,0F Nou #iht cite to the nu#ber o& raduations &ro# 1 law schools last $ear and the nu#ber o& attorne$swho were licensed to practice in 1 last $ear (as well as the nu#ber o& new licensees)!,0B See discussion in!ra 9art II(),


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attorne$s* who are not onl$ innovatin the use o& international leal pro&essionals*,0= but

also beinnin to insist that their outside leal counsel do so as well!,,0 1hile #uch has

chaned* and is chanin* about the leal pro&ession* law$ers still #ust be ver$ sensitive

to the re/uests o& their clients! There&ore* whether &ro# within or without* law &ir#s o&

the #ore traditional &or# will be &orced to deal with this e#erin trend! +inall$* #an$ in

the industr$ alread$ view these international leal pro&essionals as additional contract

attorne$s* not paraleals or leal assistants!,,, There&ore* as these outsourced law$ers"

prevalence increases* the natural transition will be into positions as law$ers and not as

an$ other t$pe o& leal pro&essional!

doptin an additional ad#ission to practice rule that #ore clearl$ de&ines the

practice con&ines o& these international leal pro&essionals will not be a radical chane*

because uni/ue practice statuses &or 3non-law$ers are not unco##on in 1ashinton! s

#entioned above* 1ashinton is the lone .urisdiction o&&erin li#ited practice

capabilities to @i#ited 9ractice onsultant*

under 9R ,4!,,5

6$ providin reater reciprocit$ &or international law$ers* 1ashinton will

reatl$ increase the abilit$ &or its attorne$s to ain access to &orein leal .urisdictions!,,4

1ashinton is ho#e to an increasinl$ international population!,, It is also a ho#e to

corporations and industries with an increasinl$ international scope!,,? These businesses

,0= See discussion in&ra 9art II()5,,0 Sandbur* supra note 5B at L5,,, insworth* supra note 50G +ried* in!ra note ,!,,2 Search b$ the author has $et to uncover an$ other .urisdiction with a rule si#ilar to that o& 1ashinton,,5 Sohn* in!ra note =4G 1ashinton State adopted the rule in ,==0* three $ears be&ore the 6"s #odel rulein ,==5!,,4See in!ra 9arts III(6) and ('),, +ootnote needed!,,? +ootnote needed!


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and industries will bene&it &ro# reater access to &orein leal #arkets! s #entioned

above* lack o& reciprocit$ is one o& the reatest barriers &or S attorne$s seekin

ad#ission to practice in a &orein .urisdiction!,,F 6$ etendin reater practice breadth to

international attorne$s in 1ashinton* this state is uaranteein itsel& and its attorne$s

reater econo#ic opportunit$ and practice &leibilit$ in other .urisdictions!

Lranted* not all .urisdictions will respond in kind to increased practice breadth

that 1ashinton #a$ provide international attorne$s! Si#ilarl$* #an$ attorne$s &ro#

#an$ countries that would be eliible &or access to this .urisdiction #a$ not take

advantae o& the opportunit$* thereb$ #akin their ho#e .urisdictions less likel$ to open

their doors to 1ashinton attorne$s! However* there is stron evidence that increased

reciprocit$ b$ one part$ leads* at the ver$ least to dialoue about* i& not the rantin o&

increased reciprocit$ b$ the other!,,B Liven 1ashinton"s increasin international

position* reater international reciprocit$ &or its leal pro&essionals can onl$ brin reater

bene&it ho#e to this state!

+inall$* increased access &or international leal pro&essionals to this .urisdiction

will open the door to #ore a&&ordable leal representation &or 1ashinton"s indient

population! s #entioned above* there is an increasin crisis o& leal under representation

a#on the poor o& this state and nation!,,= :an$ o& these parties cite cost o& leal services

as a #a.or barrier to access! 6$ openin its doors to international leal pro&essionals*

1ashinton will be able to provide lower cost leal services &or its poor and indient

population! 1hile it could be arued that this work is alread$ bein provided b$ pro-bono

,,F See above,,B +ootnote needed!,,= See section above


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attorne$s* there is no doubt that there is a #uch reater de#and &or these services than can

be &illed b$ the suppl$ o& pro-bono attorne$ hours!

@est there be an$ con&usion* this proposed leislation is* b$ no #eans* an atte#pt*

or a proposal* to outsource the entire leal industr$! There can be no doubt that there is*

and will continue to be* a de#and &or leal services provided in person! ssu#in*

aruendo* that a sini&icant portion o& the 1ashinton leal co##unit$ were outsourced*

there would still re#ain a need &or so#e kind o& o between* or an on-site leal

pro&essional who works here in 1ashinton! :ore realisticall$* those tasks that are #ost

e&&icientl$ per&or#ed abroad will be* while those that can"t be outsourced* &or one reason

or another* will not be! +urther* there #a$ e#ere a #arket in which those who still seek

out the 3personal touch* or pre&er workin with the attorne$ with who# the$"ve

established a personal relationship b$ so#e other #eans* and are willin to pa$ #ore &or

those services!


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be too lon – #ost will be copied &ro# 9R ,2 and ,4! However* I think that it would beood to outline in #ore detail what a proposed practice situation #iht look like!

*I. Conclusion

The international leal outsourcin trend presents a uni/ue econo#ic and strateic

opportunit$ &or the 1ashinton leal co##unit$! 1hile the trend in its current &or# #a$

not violate an$ speci&ic ethical rules* its rowth an epansion is inevitable! 1ith swi&t*

caluculated action* the 1ashinton leislature will have an opportunit$ to #ai#ie the

potential o& this e#erin trend!

international legal outsourcing - a trend washington can't ignore

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