Malpractice Liability Related to Foreign Outsourcing of Legal Services
2 St. Mary's Journal of Legal Malpractice & Ethics 262 (2012)
62 Pages Posted: 16 Sep 2012 Last revised: 18 Sep 2012
Date Written: June 1, 2012
The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This article by Vincent R. Johnson and Stephen C. Loomis discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the deficient practices or inferior work product of foreign outsourcing providers. The article begins by exploring the rise and risks of foreign outsourcing in general, the complex nature of legal process outsourcing in particular, and the public policy considerations that should shape the resolution of unsettled questions bearing upon legal malpractice liability related to foreign outsourcing. The article then discusses theories of accountability. These theories include negligence by the outsourcing law firm (including negligent delegation, negligent supervision, and negligent nondisclosure of material information to clients); vicarious liability for the conduct of firm principals and employees (under “ordinary course of business” or apparent agency rules); vicarious liability for the conduct of independent contractors (pursuant to a nondelegable duty rationale); and vicarious liability for the conduct of business partners (based on joint venture, partnership, and concerted action principles). The article concludes by addressing whether outsourcing lawyers may limit their exposure to vicarious liability by narrowly tailoring the scope of their representation of affected clients or obtaining from those persons signed releases from liability.
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