We know from experience that countless U.S. law firms and solo attorneys continue to benefit from legal outsourcing to India. This has confirmed the wisdom of the American Bar Association's Formal Ethics Opinion 08-451, in which the ABA Ethics Committee found that legal outsourcing is "a salutary trend in a global economy" -- a practice that "can reduce client costs and enable small firms to provide labor intensive services" that they otherwise might not be able to manage. No wonder the LPO industry is booming, and not just because of corporate clients.
But not all U.S. lawyers are happy with legal outsourcing, unless of course the work is outsourced to them! In the last week, several thoughtful and articulate freelance and/or solo attorneys have taken aim against the trend of legal process outsourcing to India, in blog posts, tweets, and other internet comments.
FreelanceLaw Inc.'s Melody Kramer, blogging in the Legal Outsourcing Journal, wonders why law firms are not hiring more contract lawyers in the U.S. instead of Indians:
What I am trying to understand is why law firms would first look to India for legal outsourcing when a wealth of educated legal professionals are right under their noses in the United States? Can they not find them? Do they not trust their abilities? Do they simply want to pay dirt cheap prices to ensure that profits per partner remain unaffected despite a recession and massive layoffs of both attorneys and support staff?
Lisa Solomon, blogger with Research and Legal Writing Pro, points in part to a couple of Indian legal outsourcing providers that apparently are guilty of atrocious spelling, grammatical, and more serious errors, concluding:
If you’re intent on squeezing every last penny of profit out of the outsourcing equation, you may be willing to spend the time to re-write poorly-written briefs, or to submit lightly-edited versions of those same briefs to the courts, in the hope that the judges before whom you practice aren’t sticklers for good writing. But are you willing to re-do the research, too, or run the risk that the brief you submit overlooks significant cases or statutes. or cites bad law? At what point does the extra work you have to do, or the extra risk you have to take, as a result of sending legal work offshore outweigh the benefit you obtain by maximizing the spread between what you pay to outsource the work and what you bill your client for that work? There’s no question that you’ll most likely make less profit if you work with a freelance lawyer who lives, is admitted to practice in, and works in the United States than if you hire a foreign LPO company. But there’s more to outsourcing than dollars and cents: foreign LPOs may offer a better price, but onshore freelance lawyers offer solos and small firms better value.
Solo attorney Carolyn Elefant, based on her own experience with outsourcing legal work to India, joined in the conversation:
[W]ith the questionable reliability of foreign LPOs, any short term savings simply give rise to longer term risk in the form of potential malpractice liability. In addition, if I have to scrutinize all of the memos that I receive from a foreign LPO, I’m spending more time on the matter, which adds to the cost.
Certainly it is easy to find some incompetent Indian providers (just as it is easy to find incompetent attorneys in the U.S.), but the success of the legal outsourcing industry in India is not based on incompetence.
In fact, as mentioned in a recent post on this blog, our experience has been that unless the work involves conveying legal advice, appearing in court, or physically holding a client's hand, it can be done expertly in India. One of the clients of our own Indian legal outsourcing company, SDD Global Solutions, even arranged for one of our India teams to edit the work of partners and associates at an AmLaw 100 firm, correcting not only English grammar, but also legal mistakes. This was not because the U.S. lawyers were incompetent. It was to save costs, by eliminating a layer of BigLaw review, while at the same time providing a high-quality second look. Moreover, most of our Indian lawyers are preparing to become admitted to practice law in U.S. jurisdictions. When that happens, I guess some critics will be left with the argument that it is not good enough to hire U.S.-admitted lawyers -- they must be U.S. lawyers in the U.S.!
As for the attacks on the English writing skills of Indians, I freely confess that according to census data, about 80% of Indians do not know that particular language. Of the 20% who do, the vast majority know English only as a second, third, fourth, or fifth language. So I guess I’m underwhelmed that the critics are able to find a few examples of Indian lawyers who make grammatical and other mistakes when writing in English -- in this case, two examples out of an LPO industry with hundreds of companies. I also don’t think there is anything controversial or wrong with saying that hiring an Indian company to draft a brief or a contract, if that company’s employees cannot write effective and correct English, is a mistake. This is regardless of what the supposed “cost savings” are. But the same applies to hiring U.S. law firms or U.S. contract attorneys, some of whom are unable to deliver a high-quality written product. As for the Indians, most of the legal work going to India does not involve drafting at all. But when drafting is needed, Indian providers need to offer outstanding results at a lower cost. That’s a no-brainer. Conversely, if U.S. contract attorneys can provide top-tier quality at a lower cost than the qualified Indian companies, then they deserve to be hired!
For the most part, law firms do not look to India as their first choice, but rather as a last resort, and usually under pressure from corporate clients. If there were plenty of U.S. freelance lawyers who are readily available, in adequately-sized teams, easy to locate and vet, highly qualified, consistently reliable, and better, more responsive and less expensive than the best-ranked LPO providers in India, then I doubt we would be having this conversation. Although I’ve seen plenty of bias against Indian attorneys on the part of Western lawyers and corporations, I’ve never seen anyone in the West who irrationally discriminates against Western lawyers in favor of Indians. And I personally have no complaints about U.S. contract lawyers.
However, some clients of our law firm's Indian company have chosen our India team over U.S. contract lawyers because, according to the clients, the contract lawyers they tried were (a) not consistently available to do the work, (b) required training by the clients, (c) delivered a work product that required extensive revision, and (d) usually, but not always, charged higher fees. As the LPO critics have pointed out, it also is easy to find examples of unsatisfactory legal services companies in India, so I’m certainly not saying Indian providers are always better, or even always less expensive. But when they are better, or just as qualified, and when they are less expensive, they are going to be hired.
For the sake of U.S. freelance attorneys, I hope their argument does not boil down to a plea to simply “Buy American,” even if the result is more expensive and not any higher in quality. Corporations, law firms, and solo attorneys are increasingly unwilling to do that, just as U.S. consumers are not going to stop shopping at WalMart (where most of the products are from China), or stop buying foreign-made clothes, etc. And if anyone wants to appeal to compassion for the human suffering caused by unemployment and poverty, then suggesting a boycott of the people of India may not be the most logical or effective means. A better strategy for U.S. contract lawyers to promote their services might be to find ways to compete with the Indian providers regarding all of the above-mentioned attributes that clients want. It seems that a number of on-shore providers are rising up to try to meet that demand, and I wish them well!