3/16/12

Defining 'Adequate Supervision' of Outsourced Legal Work

Sometimes a 3 Geek post generates responses that expand the idea presented and make it even better. The recent post of Managing the Law Firm Risk Role in Outsourcing is one such example.
My good friend Laney Altamar at Special Counsel keyed in on one of my closing points, “Firms should also consider leveraging technology to better connect and integrate LPO services into their matter management processes.” This statement highlights the need for firms to use technology to directly connect with an LPO or other outsourced provider to truly enable ‘adequate supervision’ per the ethics rules.
Not surprisingly, Laney agrees completely with this assessment. However, she suggested I should 'up my game' a bit on the topic. Which lead to an interesting conversation about the ethical duty of ‘adequate supervision.’
My take-away from the conversation is that what ERM is offering is likely necessary, but perhaps not always adequate. In some circumstances, supervision could mean something more like ‘over the shoulder’ oversight. So the real crux of the issue is that ‘adequate supervision’ requires different levels of supervision in different situations. In some cases, partner review of a document might be sufficient. In other cases, project management oversight will do (ala ERM). But at the highest level, supervision would mean actually witnessing the work performed.
Here’s the good news – Special Counsel has a tool, aptly named SightManager, that allows lawyers to view the computer screens of those performing outsourced worked. The screen shot shows what the application looks like in practice. A lawyer is viewing the various screens of outsourced workers and has the ability to zoom in on any of them and watch tasks being performed real-time. Impressive stuff.
Now the bad news – SightManager is only available when working with Special Counsel (which is actually good news for Laney). I give credit to Special Counsel for innovating this way, using technology to truly create a collaborative environment. Perhaps we will see more products like this in the market soon.
In my original post I referenced how I enjoy lively dialogs with ethics counsel on these issues. By chance, my current ethics counsel stopped by my office yesterday. Instead of our usual highly charged debate, when I mentioned the capabilities of SightManager to him, all I got was a smile.

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3 comments:

Lisa Solomon said...

I agree with your assessment that, "in some circumstances, supervision could mean something more like ‘over the shoulder’ oversight. So the real crux of the issue is that ‘adequate supervision’ requires different levels of supervision in different situations. In some cases, partner review of a document might be sufficient. In other cases, project management oversight will do...."

However, a tool like SightManager is helpful or necessary only if a similar tool is helpful or necessary when working with in-house lawyers. Watching someone's screen while they work tells you whether the person is surfing the web instead of working, but it tells you absolutely nothing about they level of skill the person is employing. Adequate supervision includes reviewing the quality of the work product. In the context of document review (which, to be honest, I don't do), that might call for quality control review of a certain percentage of documents by a second reviewer. In the context of legal research, the hiring attorney might review the researcher's research trail. In the context of brief-writing, the hiring attorney should review all authorities cited in the brief (and, of course, should edit the brief as necessary).

Of course, as you noted in your original post, firms also have a duty to exercise due diligence in evaluating outsourced providers.

Finally, as I noted in "Report Accompanying ABA Ethics 20/20 Commission’s New Outsourcing Resolution Suggests Supervision Standard Less Client-Protective than Existing Law," http://tinyurl.com/75lm9ee:

[A]dequate supervision—whether over an associate or a nonfirm lawyer—is judged on a reasonableness standard. The level of supervision required depends on factors such as the background of the supervised lawyer (a junior lawyer with no experience in the substantive practice area will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area) and the length of the relationship between the supervising and supervised lawyers (a new relationship calls for greater supervision than an established one). Thus, to comply with ethics rules without losing the efficiency benefit of outsourcing, a solo or small firm lawyer should develop a relationship with an experienced freelance attorney.

Anonymous said...

Anybody else think this is just really creepy?

Poor document-review "attorneys" are demoralized enough... now they're gonna have some goon spying on their screens from another city?

Anonymous said...

While they're at it, they should license this technology to law firm partners. Afterall, associates cost significantly more money than doc reviewers and every ounce of efficiency should be squeezed out of their working bodies.

What about the corp counsel market? How much are they paying partners again?

 

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