ISBA 2019

Can an Illinois lawyer outsource legal or support work to lawyers and nonlawyers outside the firm, and is client consent required?

Short answer: Yes, with conditions. The opinion concludes a lawyer may outsource legal and support services if she reasonably believes they will be competent and ethical, protects client information, and avoids conflicts; client consent is ordinarily required and always required to transfer substantial responsibility.

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This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The committee addresses whether outsourcing legal or legal-support services to lawyers and nonlawyers outside the firm (often temporary or contract workers, sometimes in other jurisdictions or countries) is permissible under the Illinois rules, especially given Illinois Rule 1.2(e) and Comment 15. It traces the history: ABA Formal Opinion 08-451 (2008) treated the outsourcing lawyer as ultimately responsible for outsourced services, but the 2012 ABA amendments and Illinois's adoption of them (effective January 1, 2016) did not retain that "as if affiliated" responsibility; instead, new Comments 6 and 7 to Rule 1.1 and the revised Comments to Rule 5.3 require only that the lawyer reasonably believe the services will be competent and ethical.

The opinion concludes outsourcing is permitted if several conditions are met. Competence (Rule 1.1, Comment 6): the lawyer must reasonably believe the outside lawyers' services will contribute to competent, ethical representation, judged by their education, experience, and reputation and the legal environment where the work is done; the rule does not make the outsourcing lawyer responsible for the nonfirm lawyers' conduct. Disclosure and consent: the lawyer should ordinarily get the client's informed consent (Rules 1.2(a), 1.4(a)(2)), though a supervised contract lawyer working under a firm lawyer ordinarily does not require client notice (ABA Op. 88-356; ISBA Op. 98-02); and Rule 1.2(e), unique to Illinois, always requires informed consent before delegating complete or substantial responsibility to an unaffiliated lawyer. Unauthorized practice: ordinary single-matter outsourcing does not aid UPL (distinguishing ISBA Op. 12-09's systematic-and-continuous Illinois practice), though Rule 5.5(a) still bars assisting unauthorized practice. Conflicts: the lawyer must avoid impermissible conflicts, including imputed ones, under Rules 1.7, 1.9, and 1.10 (NYC Bar Op. 2006-3). Confidentiality: the lawyer must take reasonable measures to protect client information under Rule 1.6, and the duty continues after retaining a reputable provider (ISBA Op. 16-06; ABA Op. 477R).

In practice

Under this opinion, a lawyer may outsource legal and support work outside the firm if she reasonably believes the work will be competent and ethical, protects client information under Rule 1.6, and avoids conflicts under Rules 1.7, 1.9, and 1.10. The opinion holds the lawyer should ordinarily obtain the client's informed consent, that a supervised contract lawyer ordinarily does not require client notice, and that Illinois Rule 1.2(e) always requires informed consent before transferring complete or substantial responsibility to an unaffiliated lawyer. It holds the outsourcing lawyer is not made responsible for the nonfirm lawyers' conduct, but must still avoid assisting unauthorized practice under Rule 5.5(a) and must continue monitoring confidentiality safeguards after retaining a provider.

Common questions

Q: Can an Illinois lawyer outsource work to lawyers or nonlawyers outside the firm?

A: Yes. The opinion concludes outsourcing is permitted if the lawyer reasonably believes the services will be competent and ethical, protects client information, and avoids conflicts.

Q: Do I need my client's consent to outsource?

A: Ordinarily yes. The opinion concludes informed consent is ordinarily required, though a supervised contract lawyer usually does not require notice, and Rule 1.2(e) always requires consent to transfer substantial responsibility to an unaffiliated lawyer.

Q: Am I responsible for the outside lawyers' work?

A: The opinion concludes the Illinois rules do not make the outsourcing lawyer responsible for the nonfirm lawyers' conduct, but the lawyer must reasonably believe the work will be competent and must avoid assisting unauthorized practice and protect confidentiality.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.1 (competence, Comments 6 and 7), Rule 5.3 (responsibilities regarding nonlawyers outside the firm), Rule 1.2(e) (the Illinois-specific bar on delegating responsibility without consent, Comment 15), Rule 1.6 (confidentiality), and Rules 5.1 and 5.5(a). These correspond to Model Rules 1.1, 5.3, 1.2, and 1.6.

Citations and references

Rules:

Illinois RPC 1.1 and Comments 6, 7 (MR 1.1): competence in outsourcing
Illinois RPC 5.3 and Comments (MR 5.3): nonlawyers outside the firm
Illinois RPC 1.2(e) and Comment 15 (MR 1.2): delegating responsibility requires consent
Illinois RPC 1.6 (MR 1.6): protecting client information
Illinois RPC 5.1, 5.5(a): supervision and unauthorized practice

Other opinions cited:

ABA Formal Ops. 88-356, 08-451, 464, 477R; ISBA Ops. 98-02, 12-09, 16-06; NYC Bar Formal Op. 2006-3: outsourcing and supervision

Source

Landing page: https://www.isba.org/ethics/opinions/1904

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