For the most part, I think not!

Many law firms are starting to outsource work to companies and/or law firms in foreign countries. In the patent field, both patent prior-art searches and patent application preparation for filing in the United States are being outsourced.

However, this does not protect the client, and in my opinion is usually a violation of attorney-client privilege.

While it is common to file patent applications in foreign countries, and the work must be performed by practitioners knowledgeable and permitted to act under the foreign jurisdiction’s laws, such would typically not be a violation of attorney-client privilege because the work being done is for use in the foreign country under its laws by practitioners bound by their countries rules and regulations.

Unfortunately, when the work being outsourced is for use in the United States, those performing the outsourced work are not legally bound by the confidentiality laws and rules of the U.S. Further, there is no means of enforcement, since the outsource workers are located in another country and the laws may not provide the enforcement of secrecy and privilege that U.S. laws and rules do. Attempts by foreign service providers to establish U.S. divisions is only beneficial if all matters are retained in the U.S. The moment the foreign division sends client confidential information back to the home country, attorney-client privilege has potentially been compromised.

In fact, the law firm of Newman McIntosh & Hennessey has recently requested opinions from Maryland and Washington, DC bars whether legal outsourcing violates the Constitution and bar ethical rules. See the BLT: the Blog of LegalTimes “Law Firm Files Suit to Bar Outsourcing of Client Data”.

Other than for filing of legal documents in foreign jurisdictions, when might outsourcing not violate attorney-client privilege?

Since the client is the only one with the right to waive the privilege, it would appear that obtaining client consent for outsourcing should overcome the possibility of an ethical violation. However, consent must be obtained, and must be informed consent, such that all possibilities for disclosure must be identified before the client can waive the privilege.