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Outsourcing Administrative Functions: Is Client Consent Required?

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A newly proposed ethics opinion, Proposed 2011 FEO 14, would require attorneys to obtain written consent from their clients before outsourcing administrative support services where client confidential information is involved.  The opinion specifically deals with outsourcing administrative support services to an individual or company from a foreign country, but there is language in the opinion that is broad enough to cover outsourcing on a local basis.  The question also arises whether “outsourcing” includes basic copy/print/scanning or courier jobs where client confidential information is involved.  The proposed ethics opinion quotes an ABA opinion on topic:  “[W]here the relationship between the firm and the individuals performing the services is attenuated, as in a typical outsourcing relationship, no information protected by Rule 1.6 may be revealed without the client’s informed consent.”  ABA Formal Opinion 08-451 (2008). It is unclear from the North Carolina opinion, as proposed, what administrative functions are covered and whether the opinion would apply to local as well as foreign outsourcing.  As a small law firm, we outsource large copy jobs, some scanning, unusual print jobs, and binding, among other things, on a regular basis.  I try to ensure that the persons handling the administrative work understand and are willing to abide by my professional obligation of confidentiality.  Client consent had not been required, until possibly now.  I have written a letter to the State Bar asking for clarification, so this matter should be taken up at the Ethics Committee’s October 2011 quarterly meeting.  I’m hoping that the Ethics Committee will agree with Virginia’s approach.  VA State Bar Standing Comm. on Legal Ethics, Op. 1850 (2010)(certain “rudimentary functions” that are truly clerical or administrative can be outsourced without client consent).  I’ll keep you posted on developments. . . .