Attorney Client Privilege – Unraveling the enigma

Attorney–client privilege is the very premise which grants the special and strong character to the relationship between an attorney and his client. In essence it casts a positive obligation upon the attorney to ensure that all communication between the client and the attorney shall not be revealed to any other person. The concept has been sanctified in some way or the other by jurisdictions across the globe¹. The issue gains immense importance once again in light of newer technological changes which are bringing about a gradual shift in the traditional ways of the legal industry. The paper analyses this issue from an objective point of view to understand it’s implications with respect to outsourcing.

Legal outsourcing has been around for over half a decade now and one issue that has forever retained attention and constantly been a source of apprehension amongst attorneys/firms willing to outsource is the treatment of attorney–client privilege and whether or not outsourcing amounts to a breach which may leave them legally vulnerable to suits.

On a closer look this apprehension might appear to be an obvious offshoot of the wider issue pertaining to data-protection. Clients have forever maintained the sacrosanct nature and requirements for data protection as a mandatory pre-requisite for outsourcing. Legal process, however takes this issue to the next level, owing to the very fundamental reason that jurisdictions cast a duty upon the attorneys to protect all communication provided to them by the clients.

The concern amongst attorneys and firms is founded on the simple premise – whether the duty to confidentiality can be effectively enforced upon the outsourcing vendor with the same vigor as they abide by. Clients also face the same dilemma, as to whether or not the outsourcing vendor be as careful and protective of his confidential information as the firm/attorney, especially in the absence of a legal necessity for them to uphold this duty.

While the issues are well founded, they have more or less been lent redundant as all LPO vendors have stuck with the highest levels of confidentiality even in the absence of a specific law.

It is also pertinent to note here that some of the committees formed in the United States at the highest levels confirmed to this stand and gave a regulatory green light on the matter, much to the relief of firms/attorneys looking to gain the cost advantage.

The case of United States of America

In the United States, laws governing client confidentiality are subject to the State jurisdiction and different States have differing approaches, yet none of these State laws perceive outsourcing as a threat to client confidentiality.

To this date there have been six Bar Association Ethics Committees along with such heavy weight opinions as that of the the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline and the American Bar Association Standing Committee on Ethics and Professional Responsibility.

While all these committees discussed the issue from one point or the other, all were unanimous on one conclusion. All of the Opinions have concluded that a lawyer in the U.S. can outsource legal work without defeating his or her ethical obligations. However, one report that outshines most others is the opinion from the American Bar Association as released in August 2008. Almost all the reports have had a reconciliatory tone and clearly understand the operational efficiencies that can be achieved through outsourcing.

The simple and the most straightforward way out of this legal ambiguity is by allowing law firms to extend the client confidentiality to the vendors, effectively making them one with the firm/attorney’s practice. This is akin to the lawyer dictating notes to his secretary or a partner instructing his juniors. In all these cases there is an implicit extension of the doctrine and such is the case with LPOs also. This is also the case when LPOs are hired by attorney/firm for providing specific services.

Thus, the principle doctrine that applies to the US Law Firms also applies, in extension, to their vendors overseas. This is made possible in application by authorizing and enabling secure internet connections and having stringent security measures in place. Some of the security measures taken to protect attorney-client privilege issues include:

• Controlled access of data by password protection
• Implementation of firewalls and encryptions
• Use of Virtual Private Networks

Another important point to note here is the effectiveness of the Service Level Agreements. By incorporating a duty to uphold confidentiality in the applicable service level agreements with the vendors, attorneys/firms can effectively ensure that data protection and confidentiality measures are adhered to.

One of the concerns, as expressed by many vendors is the apparent lack of Indian laws related to data protection.

The Indian position

In India, professional communications between attorneys and clients are protected as ‘privileged communications’ under the Indian Evidence Act, 1972 (the "Evidence Act").²

The Evidence Act provides that no attorney shall be permitted to:

• disclose any communication made to him in the course of or for the purpose of his employment as such attorney, by or on behalf of his client;
• state the contents or condition of any document with which he has become acquainted in the course of and for the purpose of his professional employment; or
• disclose any advice given by him to his client in the course and for the purpose of such employment.

This attorney-client privilege continues even after the employment has ceased. However, there are certain limitations to the aforesaid privilege and the law does not protect the following from disclosure:

1. disclosures made with the client’s express consent;
2. any such communication made in furtherance of any illegal purpose; or
3. any fact observed by any attorney in the course of his employment, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of the attorney was or was not directed to such fact by or on behalf of his client.

While India has an expressly laid out provision related to attorney client privilege, it cannot be adopted for the purposes of legal outsourcing, as it restricts itself to the communication between an Indian – lawyer and clients. Additionally, this is inadequate in so far as it does not create an obligation on the LPO vendors.

Therefore, the best and the most effective way remains ensuring confidentiality provisions through the SLAs. Indian vendors have stood the test of time in so far as data protection measures are concerned and the industry players have collectively and resolutely delivered in this direction. There also seems to be no reason why in future the regulators/legislators should change their policy stand, unless moved by protectionist measures – which would come at a definite price in terms of efficiency.

[1] The policy underlying this privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-client privilege is considered as one of the strongest privileges available under law.http://en.wikipedia.org/wiki/Attorney-client_privilege

[2] https://www.lexmundi.com/.../AttyClient/...Client.../At_Client_INDIA.pdf

TiE joins the Global LPO Conference 2010 as Supporting Partner

After announcing its annual Conference — The Global LPO Conference 2010—Buyers and Vendors Meet in the LPO Industry –to be held in Delhi, India on November 13th and 14th at Hotel Radisson Noida (Delhi-NCR), India—KPO Consultants, today welcomed on board TiE (The Indus Entrepreneurs) as its Supporting Partner.

TiE seeks to engage not only with global entrepreneurs but also with policy makers in order to foster the spirit of entrepreneurship. It seeks to become the bridge that would connect Indian government and industry with successful Indian entrepreneurs across the world, many of whom are regarded as thought leaders. The focus of TiE is Entrepreneurship which is across sector (including IT/KPO), scale, stage & is open to one & all.

We, at the Global LPO Conference, strongly believe that such collaborations amongst associations, business chambers, entrepreneurs, companies, and law firms are part of an essential strategy to enable the region’s corporations to compete and be successful in the global economy.

IACC & SILF join hands with the GLOBAL LPO CONFERENCE 2010

The Global LPO Conference 2010—Buyers and Vendors Meet in the LPO Industry is proud to welcome its esteemed partners--Indo American Chamber of Commerce (IACC)—the only bilateral Chamber of Commerce in India, committed to development of Indo-US business and trade relations—and the Society of Indian Law Firms (SILF), the apex body of law firms in India. While the IACC is the premier resource for Indian and American professionals and companies to grow their business, SILF has over the past decade worked extensively to create a robust network amongst Indian law firms, big and small, to enhance their interests. We, at the Global LPO Conference, strongly believe that such collaborations amongst companies, law firms, and business chambers across borders are part of an essential strategy to enable the region’s corporations to compete and be successful in the global economy.

With IACC and SILF on board, we hope to further strengthen ties between buyers and vendors, bringing them on a common platform to address common concerns as well as share, discuss and implement ideas to further their business interests.

LPO Industry: Looking back at 2009; Lessons for 2010

The present paper is an attempt to analyze some of the strengths and weakness of the LPO Industry that surfaced during the past year and to apply the understanding towards predicting some of the opportunities and threats that lie ahead for the LPO industry.

2009 was a definitive watershed event in the history of outsourcing and legal process was an equal party to the game. It marked many firsts in the industry- with majors like Rio Tinto upping and upsetting many long established industry standards. The recession that originated in the United States had by now spilled on to the rest of the world and specially Europe. Although by the second half of the year, boardrooms were again buzzing with the talks of ‘green shoots of recovery’, still uncertainty was yet to give way to the confidence of the better days of up until 2006-07.

Some of the major events of 2009 that shaped and defined the industry are as follows:

1. The impact of recession on the global legal industry became a reality. Companies witnessed a stronger cost consciousness and pricing of all services procured came under tremendous scrutiny. This included the pricing for legal services procured and thus in turn the pressure was passed on to the law firms to either rationalize pricing by adopting more efficient methodologies or miss mandates.
2. Law firms thus were faced to take a defensive stand as clients now demanded better and more efficient models of delivery.
3. Some of the corporates, like global mining major Rio Tinto surprised everyone by surpassing the via-firm process and entered into an agreement with an Indian LPO to procure support services for the in house legal counsel team.
4. Another shaping event was the entry of UK firms in the LPO picture. When Clifford Chance entered into the market 3 years back- it was a noted exception and was even frowned upon by many purists. However 2009 saw many other City firms joining the club leveraging the benefits. Find below a table canvassing some of the outsourcing deals by some of the City majors[1].

Services Buyer	Deal Detail
Simmons & Simmons	Integreon will provide document review, due diligence, document production, and research services to the Mumbai's center of the law firm.
Eversheds	Exigent will provide documentation processing. As part of the move 95 secretarial jobs will be cut in the UK by Eversheds.
Osborne Clarke	As per the deal, Integreon will provide technology and business intelligence services, knowledge and information management, transcription and secretarial and word processing services. As part of the deal, Osborne Clarke’s 75 employees will move to Integreon.
Pinsent Masons	Exigent will provide document review.

Thus, an important factor that surfaced in 2009 was the shifting of focus from US to broader European market. While US law firms and corporates had been harnessing the benefits of legal outsourcing for quite some years now, the gradual shift towards the other side of the ocean began rather slowly, but has been steadily catching up. It is indeed good news for the Indian vendors, as they are inherently better equipped to serve UK law firms.[2] Also, as seen in other verticals, a diversified client base acts as a hedge against cyclical changes.

2010 Opportunities

In terms of sheer opportunities, 2010 starts on a promising note. Some of the uplifting trends are as follow:

a) As noticed earlier, English law firms are increasingly finding flavor with the Indian service providers. If this trend continues, other European nations would soon follow suit and there seems to be no reason why it should not, if the Indian vendors continue performing upto the levels and clients’ expectations.

b) Another promising area is that of regulatory compliance related work. While it could be some time before the finance industry returns to the pre-recessionary days of hectic deal making. However, on the upside recession has forced many governments pull the strings tighter and in the process saddling organizations with more compliances related costs. This is another area where LPOs could find takers, as cost efficiency shall continue to be the guiding light for efficiency driven economies.

c) Diversified client base. As explained earlier, once the UK firms traditionally considered to be the most conservative in approach, start utilizing the services of Indian vendors, it is only a matter of time before clients from other parts of the globe come calling.

2010 Threats

While there seems enough reasons to expect another good year in terms of revenue, there still exists a few factors which need to be addressed to materialize projections into actual numbers.

a) The first in this line is the apparent rise in protectionism. If the State of the Union speech by President Obama, is anything to go by- some of the clients might want to think again before outsourcing services. Yet, as often repeated earlier, the pricing rationale behind legal outsourcing is too obvious and strong to be ignored in favor of political goodwill.

b) Another strong threat for Indian legal service providers is the upcoming competition from other destinations such as New Zealand, Sri Lanka, South Africa and Philippines. While it is some time before they catch up with the already mature Indian industry, yet the competition looks like here to stay for long.

c) Market consolidation: As the market finally matures there would clearly be a few winners who would collectively share amongst themselves the majority of the market share. This would definitely be a threat for some of the smaller players who fail to adopt and grow either organically or through acquisitions.

One thing, however that can be certainly stated about the industry in 2010 is that profitability is here to stay. While capital issues and other politically motivated issues would find their way on to the course eventually the industry looks poised to conquer the summit successfully.

Those Who Tasted Success...

From The Buyer Perspective: “Trifles Make Perfection, but Perfection is no Trifle.”

Dell - ‘Why should I pay £200 an hour for a three-year qualified UK lawyer if the quality is not significantly better than a seven-year qualified lawyer in India who I am paying at £40 an hour?’ says Bruce Macmillan, Dell EMEA in an interview to the International Bar Association. Dell, along with Eversheds and MIndcrest, in order to demonstrate optimal cost benefits started tepidly focusing on large scale, standard form contracts involving reviewing changes proposed by other parties. Having tasted success in this delivery model, Dell is also examining other areas where LPO could be used, such as reviews of routine advertising material – to ensure compliance with different countries’ regulations – and the administration of some of its internal legal databases. However, Macmillan at Dell is still sceptical about using LPO for anything that requires a high level of briefing per activity. “The more non-transactional it is, the higher the investment cost in getting it briefed up in the first place and the more checking and validation you need to do to make sure you have got comfort that it’s being done properly’, he argues.

Microsoft - Martin Shively, leads the worldwide IP operations of Microsoft Corporation. Shively started outsourcing to India in 2004, when he took over budget responsibility for Microsoft's patent group. At that time, there was a lot of buzz about outsourcing legal work to India; corporations like General Electric Company were doing it, and slashing their legal bills. He started with the most basic task he could think of---proofreading patent applications. Instead of paying high-priced associates to do this work at a dozen U.S. law firms that drafted Microsoft's filings, he hired one vendor in New Delhi to do them all. It was, he says, "a safe place to have a failure." If it flopped "we just wouldn't tell anyone," he laughs. But it didn't flop. "We went there to save money," he acknowledges. "We stayed and expanded because we liked the quality of the work." It wasn't just okay, it was better.

Shively began to fly to India once or twice a year to discuss plans, review the work, and build relationships. More than satisfied with the results, he pushed the volume and complexity of the tasks and hired a second firm. Soon the Indian companies had 35 people working exclusively on Microsoft projects. In July 2007, at the suggestion of his bosses, Shively moved to India himself. He points to the Indian operation's numbers: In fiscal 2005, patent work there amounted to less than $150,000. The work product continues to meet Microsoft's standards, and the cost is never more than 40 percent of what he'd pay in the United States; in some instances, it's a mere 10 to 15 percent, he says. In fiscal 2008, his company saved $6.5 million outsourcing its patent work. He's confident the savings will hit $10 million this year. In fiscal 2009 the tab was estimated to come to around $4 million.

From The Vendor Perspective: “Winners don't do different things, they do things differently.”

Infosys

...and that is exactly how LPO vendors in India today are expanding and creating a niche for themselves. Lets take the example of Infosys Technologies that ventured into the LPO space two and a half years ago, diligently building on its infrastructure and operations, and is today envisaging a growth of 20-25% for the LPO industry. According to an interview published recently by Matthew Sullivan, founder and principal at Red Bridge Strategy, Inc. on his Global Legal blog, Rahul Shah, AVP and Head, Infosys LPO spoke about the LPO market and Infosys’ niche place in it. More specifically, he believes “that full service providers like Infosys offer a very different proposition to the clients that can take the LPO industry towards maturity much faster. Infosys believes in being transformational partners with its clients leveraging consulting, technology, BPO and LPO capabilities. This helps them in the following ways:

• It provides them the scale to invest in best talent as well as significant management oversight to provide world class experience to its/firms clients.
• It enables a connect at a much higher level in the client organization – Head of Business Services in law firms and CFO’s / COO’s / GC in corporates. This enables them to make the LPO initiative much more strategic than tactical.
• It enables a mix of mature services like F&A to be in play apart from LPO services – thus bringing about proven and tested business benefits through mature services and enabling a higher appetite for the clients to do more offshoring.

Lessons Learnt

• Choosing the right vendor: A buyer must define adequate metrics against which he would like to see his vendor perform before he steps into the market to shop for a vendor. With the plethora of vendors available, some with robust infrastructure, some who have created a niche for themselves in certain areas of outsourcing and some others who are offering a broader range of options. With so many options, the buyer must have his laundry list of essentials ready at hand so that he can optimally evaluate and ultimately select the most appropriate vendor.

• Don’t limit your horizons: LPO service providers are fast ramping up their infrastructure as well as deliverables to meet the optimal level of expectations set out by their buyers and would like to secure a larger share of their clients’ legal spend and move up the value chain. The focus is now on offering end to- end solutions, rather than simply handling a defined part of a project. Buyers need to take a step forward and keep the faith.

• Buyer Vendor relationships are crucial: The success of an outsourcing relationship depends a great deal on how robust is the communication and relationship between the buyer and the vendor. There will be initial hiccups but starting in a discreet manner and road mapping not just the work but also the relationship will help create a conducive environment in which both the buyer and the vendor are on the same page as far as expectations are concerned. On their part, it is essential for a vendor to understand how the buyer works in house while for the buyer it is important to give the vendor adequate exposure to the quality of work that is expected of him. Understanding the nuances of cross cultural communication and collaboration are key requisites here.

• Don’t hesitate to ask: In tandem with my previous point, buyers should necessarily evaluate the infrastructure as well as processes before finalising a vendor. One way to do this would be going by hearsay but a more effective way would be to issue a pilot project to your top five vendors, evaluate them on certain pre-defined metrics and then get into a conversation about costs. This way, both parties would have a fair idea of what to expect.

• Don’t hesitate to say No: This is more for vendors who, many a time tend to take on work that they may be incapable of handling due to stretched resources or absence of requisite resources. Pushing back on work isn’t seen as a minus rather a conscientious decision to deliver quality rather than quantity.

(To be Continued....)

Sources:

• http://www.ibanet.org/Article/Detail.aspx?ArticleUid=039e1b0f-a891-4680-af67-24ecb9405bfe
• http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202426634099

Micro-Level Outsourcing an Under Cover Opportunity for Small Players (Or Entities) – Crystallization of A New Market Sub-Domain

From the perspective of Patent Reforms Act 2005 post-implementation scenario, no matter what is the final outcome regarding "limit access to injunctions", i.e. Heads or Tails, the outsourcing market clearly exhibits an inbuilt capacity to develop. At this point, it is utmost essential for both, service buyers and vendors (or sellers), to create or discover and detect one or more of the following market domains and sub-domains thereof, such as novel, explicit unexploited, implicit unexploited (or under cover) and all potential permutations and combinations thereof (i.e. hybrid market domains and sub-domains thereof). Subsequent to this, customized outsourcing models, which may be adaptive-dynamic, may be implemented in the aforementioned market domains and sub-domains thereof to get businesses.

More to the point, considering the outcomes of the legislation being discussed this week in Washington as “Heads” (or Win) it appears that subsequent to the implementation of proposed amendments suggested under the Patent Reforms Act 2005, US jobs may be outsourced. However, interesting points that appear overlooked are the advantages despite the aforementioned outcomes are “Tails” (or Loss). Noticeable here is the fact that in the context of the Patent Reforms Act 2005 post-implementation scenario no matter what is the final outcome, i.e. Heads or Tails, there still arises a Win-Win situation under the aforementioned scenario. Specifically, in light of the assortment of issues raised in connection with the Patent Reforms Act 2005 in numerous articles note must be taken of the fact that “Micro-Level Outsourcing” is an under cover opportunity for small players (or entities) thereby facilitating crystallization of a new market sub-domain. That said, small entities (or buyers) need to understand that there is an under cover opportunity which needs to be explored on an urgent basis.

LPO ~ Identifying and Mitigating Gaps: The General Counsel Perspective

FACT: SCENARIO 2008
A survey of 115 General Counsel conducted by management consultancy Altman Weil in November 2008 – found that three-quarters of respondents were facing budget cuts. When they were asked to identify how they would deliver savings, the most frequently mentioned strategies were to bring more work in-house, reduce training and use lower-priced counsel. LPO came 13th – out of 13. December 2008 saw the publication of a survey of 143 general counsel members of networking site Legal OnRamp. This study found equal percentages of respondents – 16 per cent – predicting that 1–6 per cent, 6–10 per cent and more than 10 per cent extra of their spend would be offshored in five years’ time. Almost half predicted no change.

FACT: SCENARIO 2010
The newly released Altman Weil Flash Survey, Law Firms in Transition 2010 found that while over 75% of firms surveyed indicate that they believe that more price competition, more non-hourly billing and the use of project management to improve efficiency of service delivery will be permanent changes in the legal landscape; Very few firms will look to outsourcing or offshoring as a means by which to change the service delivery model. Despite the recession and despite the opportunities for cost savings, most law firms remain reluctant to consider outsourcing and offshoring options. Less than 10% of firms outsourced or offshored legal work in 2009 or plan to do so in 2010. Only 28% of law firms expect outsourcing of legal work to be permanently adopted in the future, and 22% expect the same for offshoring.

Fronterion LLC’s Top Ten Trends for Legal Outsourcing in 2010 report predicts “2010 will be the proving year for legal outsourcing. Law firms and corporate legal teams will learn from their peers, resulting in make‐or‐break peer referrals, which will be strong indicators of the success and maturity of the outsourced legal services segment.Supporting – not supplanting – firm operations with an outside legal services vendor has emerged as a successful strategy and will gain momentum in 2010.”

The various studies point to continued resistance among a large section of general counsel to outsourcing legal work. While there is no denying the fact that the LPO landscape has changed considerably over the past few years, the pace at which this industry was/is expected to grow has not met expectations. Despite the potential for cost savings, law firms and corporate legal departments remain sceptical of outsourcing and offshoring, tentative in their efforts with many of them revealing that they were likely to adopt this model of service delivery only when pushed by clients to do so. Thus, the LPO industry will grow, just not at the pace that might have been expected in such a severe downturn.

The obvious conclusion that one comes to, then, is that there are obvious gaps that exist in this industry between demand and supply; between service providers and clients; between services provided and expectations; to name a few. Lets revisit some of the obvious pros and cons of LPO:

Advantages of Outsourcing Offshore:
• Cost effectiveness
• Time zone difference
• Common law legal system
• Availability of talent
• Attorneys can focus on higher priority work such as engaging with business units and focusing on prevention

Why Do General Counsels and Law Firms Not Trust the Outsourcing Industry?

1. The Nature of Work
• For corporates, legal departments, for long, have been viewed as cost centres and while the mandate for all General Counsels is to lower costs, few GCs are ready to take the risk, rock the boat and jump onto the LPO bandwagon; fewer would like to explain at their AGM about jobs that were outsourced (so we put a few people out of work here to save some money) and not performed satisfactorily. GCs have come up with objections ranging FROM the likelihood of sending across the wrong message to their outside counsel as well as their in house teams (hey, we are taking your jobs and sending them over to a place where it’s cheaper to get this stuff done) TO their distrust in the quality of talent and work in countries that are prominent LPO destinations.

• Traditionally, law firms and attorneys have been less susceptible to change (and less likely to) than their counterparts in other industries, especially considering the nature of their profession and their training. Outsourcing requires a slightly different mindset. It is a change in the way law firms and corporate legal departments view the practice of law. It is not just about delegating work to someone else in a remote corner of the world to save cost and it certainly is’nt something you do just once. Leveraging the benefits of outsourcing requires continuous dedication.

2. The Ethical Risks of Outsourcing
• Client confidentiality is a major concern. Identity theft raises another prominent issue. Clients concerned over privacy may choose a firm with in-office paralegals over a firm with paralegals in India.

• Cultural differences regarding sharing of information remain a challenge.

• Supervision and monitoring of work is understandably a serious concern as well, especially due to the difficulty in monitoring the work of someone in another country. It is unnecessary for a law firm to disclose such an arrangement to its client if the offshore assistant/paralegal is under the direct supervision of an attorney. ABA rules, however, clearly indicate that an attorney must obtain the consent of clients if a temporary lawyer will handle a portion of their case without direct supervision. This complicates the supervision problem further.

• Lastly, attorneys must be careful to screen the projects performed in the past and future by individual overseas to avoid any conflicts of interest.

3. Not All Clients Support Outsourcing
• Over the past decade with increasing volumes of work being outsourced offshore, the outsourcing decision is a controversial one and some law firms may wish to avoid alienating clients who disapprove of outsourcing. Especially in lieu of the economic recession, and an increasing "Buy Native” sentiment across developed countries, a firm that openly sends legal work offshore may be less likely to earn clients who have been negatively affected by outsourcing or simply disfavour the practice.

4. Quality of Work ~ A Sceptical View
• Quality concerns, as mentioned earlier is a factor as well. American lawyers spending more time to carefully review work produced offshore for errors, mitigate to an extent the cost savings from outsourcing. This is particularly critical in the highly technical field of patent law, in which firms often outsource patent drafting to India despite the fact that the value of the entire patent can hinge on a single word.

5. Insufficient Planning And/Or Resources by Buyers and Vendors
• For many of those who tried legal outsourcing but burnt their fingers, some of the main reasons for their failure were insufficient planning and budgeting. Not understanding the vendor landscape; less knowledge of vendor capability, skill, and infrastructure; no checks on talent profiling, acquisition, and retention; were only some of the results of inadequate planning before outsourcing work. Any outsourced project must be run with the same discipline and planning as any other important function of the Company for example Marketing or HR. Adequate transition periods and/or effective cross-training between the client and the supplier are essential to ensure maximum benefit from an outsourcing relationship.

6. Legislation Across Developed Countries Has Targeted and May Continue to Target Outsourcers
• A crucial risk in legal outsourcing is the spectre of protectionist legislation. The political backlash against outsourcing has created a firestorm in the US Congress and US state legislative halls. Much anti-outsourcing legislation has failed, and the protectionist legislative movement is less active than in its heyday of early 2004. With the economic incentives for law firms to engage in out-sourcing outweighing the risks, hopefully more legal jobs will continue to be transferred to low cost nations.

In my next few entries I will try to analyze the cases of those who dared (including the latest one on Denis Field, former chairman and CEO of the US-based accounting major BDO Seidman, LLP, has hired the Mysore-based SDD Global Solutions, a legal process outsourcing arm of New York-based Smith-Dehn LLP, to assist him and his US legal team in his legal battle with the US government. BDO is the world’s fifth largest accounting firm), those who succeeded (Including Dell, Microsoft, to name a few) what did they do differently, lessons learnt, law firms of the future, growth and expansion for LPO vendors and more........

Sources and Further Reading:
• http://www.fronterion.com/FronterionTenFor2010.pdf
• http://www.altmanweil.com/dir_images/upload/docs/2010LFiTSurvey.pdf
• http://www.hgexperts.com/article.asp?id=5857
• http://papers.ssrn.com/sol3/papers.cfm?abstract_id=907343
• http://www.gcmidatlantic.com/article.php?id=42
• Protiviti: Managing The Risks Of Outsourcing: Survey Of Current Practices And Their Effectiveness

Attending a business conference--a tool for thought-leadership

Many organizations would view the cost of attending a conference as an extra burden. Some would think whether it is at all necessary to attend conferences. While a few others, would postpone such attendance to a later date.

The fact is that it is extremely necessary that the members of any senior management of an LPO should be allowed the budget to attend Conferences within the industry. It really pays to attend.

Each conference comes with innumerable possibility of networking with prospective clients as well as with peers. You get to know what the client community expects of you as well as what your peers are doing. This exchange of ideas, do definitely help the senior management to provide efficient thought-leadership to the organization that they work for.

Networking done during the lunch and tea-breaks in the Conference do go a long way if nourished and watered in the right manner. This is the era of contacts and communications, the more you are connected the more is your chance of being offered with the right opportunity at a future date.

I am sure that the Global LPO Conference shall provide an appropriate platform to all the attendees to network and take their respective business to the next level.

See you all in the GLPOC in November 2010 in, Delhi, India

How to start off-shoring legal assignments to India-Sharing from London

The UK LPO conference in London last week saw the attendance of a good number of delegates from law firms desirous of off-shoring legal work to India and other foreign destinations. They attended the Conference to get an idea about how to start the off-shoring process. This made them embark into a discussion about the right approach and the right way to go ahead with it.

The following suggestions were put in by delegates from law firms and corporations who have already started off-shoring legal work to India and other destinations. Hope this would be of some help to those intending to off-shore as well as the Indian LPO vendors who must know as to what the suggested process is:

1. Those off-shoring for the first time should start with more simple type of work.
2. Indian legal system looks more aligned to the UK legal system
3. Be clear on what service or part of service that you need from an Indian LPO and stick to it
4. Comprehensive briefing is necessary and treat the Indian team as you internal team
5. You need to own the task throughout
6. Be clear about your scale
7. The more assistance you provide to the LPO Team in India the better the results.
8. Delegate the work of assisting the LPO team preferably on some senior associate of your law firm

Judging the standards-- Sharing from London

“Many people in UK and US have had horrible experiences dealing with Call Centers in India while calling up their banks or other service providers. Many of them would prefer not to have their line routed once again to a call center in India; that’s something different but it would be unfair to judge everything about India with that one experience” …this was a comment made by a senior executive of a London law firm in the Conference. The speaker further added “It is true that by virtue of any bad experience that people might have got from Indian call centers, many people in UK and US start judging LPOs in the wrong fashion.”

In fact I would say that people in the western countries must first reconcile to the fact that most LPOs in India employ qualified lawyers to do the off-shored legal work. These lawyers hold a proper degree in law and many of them have been practicing in Courts as well. We do not have the system of paralegals as it exists in UK or US. Here in India, you are either a qualified lawyer of a lay man as far as law is concerned.

The same speaker did make a candid confession and said that “the moment someone here comes to know that a particular piece of work has been done by an Indian attorney working in a LPO in India, they start judging the work by unfair standards.” He of course did make it clear that such is not a welcome attitude.

While meeting people in the legal circuit in London and Leeds I have more often than not encountered queries about the kind of people that Indian LPOs employ. I have taken time to explain in detail as to how the Indian legal education system works and the process in which a person is turned into a lawyer. I further suggest that anyone who gets a chance to do so must devote a part of his meeting time to make such issue clearly understood by the foreign lawyers.

I would further suggest that the off-shoring law firms should make it a point to ask for the resumes of the lawyers who are supposed to work on their project should the deal mature. There are many other ways of being assured about the quality of people that would work on the assignment rather than to just nourish assumptions and apprehensions.

It isn’t the monopoly of Big Brands

A few days back, one of our Legal Consultants and LPO experts was having a chat with an intending investor. The investor being an Indian businessman of repute, queried as to whether law firms in the west would at all want to be clients of small and mid-sized LPOs in India. The investor, having gone through the recent news items about the LPO industry, seemed to be put off by the fact that all big names of the west were off-shoring their work only to the big names of the east…then where does a small/medium Indian LPO stand?

Now let us see the other side of the story. During the past week, the same consultant of ours was having an exchange of mails and conducting web-meetings with a US lawyer who being a partner of a mid-sized law firm was extremely interested to know about the kind of legal work that small Indian LPOs could handle. “Can you please send me a list of all that a small Indian LPO can handle? How much would you bill us for ……..?”, was the specific query of the foreign lawyer.

We are sure that the above two paragraphs shall serve as two important pieces of a jigsaw puzzle for you to easily put them together to get the entire picture.

You are correct; the big names of the west for very many reasons will always off-shore to the big names in the east. But that is not all of the story; there are numerous small to mid-sized law firms in US and UK who would be more than happy to off-shore their work to the small and medium sized LPOs in India. The reason is obvious; the so called big Indian LPOs with their extremely heavy overheads have a very high billing rate which the small and mid-sized foreign law firms will never be willing to shell out. Whereas the small and medium sized LPOs with their moderate overheads shall always be in an advantageous position to cater to the needs and requirements of the small and medium-sized law firms of the western countries.

While small and medium sized LPOs in India will have the advantage of approaching hundreds of small and medium sized law firms in US and UK for selling their services, the so-called big Indian LPOs will have to anxiously wait till the Tintos and Microsofts knock their door.

The basic fact is that an off-shored legal work must necessarily be:

 Conducted in a data-secured environment;

 In consonance with the quality-prescriptions of the client; and

 Delivered to the foreign client within the prescribed turn-around time.

For the fulfillment of the above mantra: It is not all necessary that the Indian LPO be housed in an all-glass-office located in the most expensive area in the uptown of the city or the floor be laid with Persian carpets. Neither is it necessary that the employees be favored with cocktail parties in Five- Star hotels in every quarter of the year.

Such being so, if run with integrity, meticulousness and observance of legal and business ethics, a small/mid-sized Indian LPO can well cater to the needs of the legal off-shoring industry.

So, cheer up, gear up, rise and do all that is needed to give vent to your business-desire of diversifying into the Legal Process Off-Shoring domain……The horizon is too huge and wide; you can tread great distances.

Equip and groom yourself to be a perfect LPO employee

“Some of London's magic circle law firms have turned to the streets of Mumbai for completion of work that was once the preserve of young UK lawyers….”

The above lines appeared in “TIMES ONLINE” in their 15th January 2010 edition.

(http://business.timesonline.co.uk/tol/business/industry_sectors/support_services/article6988773.ece)

Yes, this is the LPO scenario now; be it Mumbai, Delhi, Gurgaon, Noida, Hyderabad or Bangalore. But there is a twist in it; not every Indian law graduate is employable in the LPO sector. The reason being, just like other industries, performance of duties in a LPO job also requires specific training, expertise and grooming. After all, it involves the doing of legal assignments of a distinctly different country with an absolutely different set of laws and work culture; in fact it is a job that was once the preserve of young foreign lawyers.

The typical Indian mindset is bound to be a misfit in the LPO space. To be a perfect LPO employee, one has to gear up and get himself trained in the required areas. This calls for professional training. Though clients do provide process specific training during the initial days of transition of processes, but they do not usually provide a general training about the industry as a whole. Before you walk in for your next LPO job interview, ask yourself whether you are well equipped to face all that is in store for you inside the room.

The training that a prospective LPO employee requires is not only about the work and a few processes. Rather it must encompass the whole gamut of issues like work culture, professional ethics, inter personal relationship, responsibility as an LPO employee, effective communication techniques with the client, the US legal market and much more.

The grooming of the candidate needs to be done in such a manner so that he can relate and respond to the work requirement, behavioral pattern, work pattern and ethical consideration of the foreign clients. Without a formal grooming even if you bag an LPO job at the Junior Associate level, it would be difficult for you to “set-into” the entire work environment and further, chances are slim that you shall climb up the ladder to the level of a TL or a Manager within a reasonable time.

Accordingly it is absolutely necessary that an aspiring candidate should go through a proper training prior to joining an LPO company.

Clamoring for cost-effectiveness and higher efficiency...its the M.O.J. now.

The whole of the legal fraternity in UK is abuzz with discussions about the changes that the legal profession shall undergo after the implementation of the Legal Services Act (LSA). To be specific, people are worried about the Alternative Business Structure (ABS) that the Act propounds.

In its 3rd March, 2010 edition, “The Lawyer” reported that nearly 40 senior clerks wined and dined at The Ivy while discussing the challenges facing the profession’s commercial development.

The Legal Services Reform Fact Sheet issued by the Ministry of Justice (MOJ) interalia states that:

“Alternative Business Structures are bodies that have lawyer and non-lawyer management and/or ownership, and that may carry out solely legal services or legal services in combination with other non-legal services. ABS will also allow for increased flexibility: non-legal firms such as insurance companies, banks and estate agents will have the freedom to realize synergies with legal firms by forming ABS firms and offering integrated legal and other professional services.”

The M.O.J. expects that allowing new providers into the marketplace should lead to innovation and price reductions. This should result in more people being able to access legal services.

So the crux of the whole concept is all about:

 Flexibility;

 Increased efficiency;

 Participation of lawyers and non-lawyers to provide “one stop shops” to the customers of legal services;

 Effective competition;

 Wider opportunities for better quality;

 Cheaper legal services for consumers in UK;

Currently of course, the whole scenario is extremely dilute with an air of uncertainty about every aspect of the matter and people are busy discussing the regulatory aspect of the ABS regime.

One of our legal consultants, who is deeply looking into the scheme of Alternative Business Structure (ABS) as contemplated in the LSA, was researching as to whether the creation of synergies between law firms and non-legal firms could be stretched to an extent where Indian LPOs can create ABS synergies with UK law firms. Extensive reading and research on the available materials in the matter did not help. He however proceeded to write to an UK Solicitor asking, whether in the ABS regime an Indian LPO can create synergies with a UK law firm to provide cost effective solutions and services. In reply, the considered opinion of the UK Solicitor was, “There is no reason why an Indian LPO could not be part of the ABS”.

This is where the Indian LPO companies now need to put their thoughts into. As for the aspiring Indian LPOs, it is worth taking further legal opinions from Solicitors in England and Wales and gauge whether they can open up a new horizon for themselves. Being a part of the ABS and having synergies with UK law firms would definitely mean a high level of business activity.

Undoubtedly, Indian LPOs are famous in the UK and US for providing cost efficient and high quality services. We believe that given a chance to be a part of the ABS regime, Indian LPOs can be of great help to the MOJ in giving shape to its proposal of providing cost efficient legal services to the people of UK.

Now we just need to watch as to how the regulatory provisions of the LSA takes shape in UK.

LPO Conference paves the way

India needs one successful LPO Conference, once done; the job is done. Attempts must be made to familiarize foreign buyers with the Indian conditions as well as Indian talents. The fear phobia would be gone in a few interactions.

The distance between US and India as well as the cultural gap restrains the medium sized foreign law firms from off-shoring work to India. Knowing well in their heart of hearts that they stand to gain, the small and medium sized law firms still sit back and keep on wondering about the negative consequences.

Our efforts at any LPO Conference should be to allow them to speak their hearts out and listen to their expectations from us…we need to invite them to specifically speak out as to what kind of training do they expect us to give to our LPO employees, what action/s on our part shall make them feel at home and comfortable.

The so called big LPOs have a sack full to spend on their marketing efforts and they would not much be affected by a Conference either taking place or not taking place in India. The ones who stand to gain are the small and medium sized ones. They are the ones which work on restricted budgets on every count. Their executives need to think twice before traveling to a foreign destination for official work.

Having a whole bundle of buyers right on the Indian soils would allow the small and medium sized LPO vendors to interact with the foreign buyers and thus gain exposure.

One successful LPO Conference shall pave the way for such an event on an annual basis. We shall write in details about the features of the upcoming LPO Conference in out next post.

They are not responsive-- Sharing from London

As my East Coast train zooms away in high speed from London Kings Cross Station towards Leeds this morning, I find that the service is just perfect, the in-train announcements; the food that is being served; the alignment of the seats; the cleanliness of the coach; the reservation-cards stuck up on the head-rests of each of the seats; the soft skills of the people managing the train; the responsiveness of the train staff to the needs of the passengers and their getting back with the right solution.

In fact this is the level of detail to which all service providers must adhere to while providing service to their respective clients. It does not matter whether you are running a Transport service; a Restaurant; a Law firm; a Call Center or a LPO/BPO/KPO. Any client or customer should pretty much have the right to be served with some seamless delivery of end products.

While discussing about the pain areas in dealing with Indian LPOs, a London law firm which regularly off-shores legal work to India did complain about the responsiveness and soft skills of Indian LPO employees. This concern was echoed by many others who off-shore legal work to India. “People don’t always get back in time, they sometimes do not speak out their problems” is exactly what was uttered. “If given a difficult thing to do and they don’t understand it, they would not even tell that they have not understood the work”, “They would start doing the work somehow anyhow and then might end up doing the wrong thing which is pretty much a waste of time”— are the comments that were doing the rounds during the discussion on this extremely sensitive as well as important topic.

“You know some thing? In India they do not know how to say “no”, the just say “yes” to everything”… this was the comment made by a speaker in the Conference. The Indian LPO vendors present in the Conference did of course do their best to explain to the law firm delegates that people in India are very sincere about their work but the law-firm delegates concluded that it was a cultural issue and that needs to be taken care of by both sides.

So my considered opinion is that don’t try to overstretch or promise the impossible while talking to the client. Let not “doing the impossible” be the USP while pitching in for work. In fact every one knows that there are a dozen other reasons for foreign-law firms to off-shore work to India than getting the impossible done.

Sharing from London----Growth path for Attorneys working in LPOs

A very sensitive issue concerning the growth path for Indian lawyers working in LPOs was raised and discussed at the Conference. The same was rightly raised by a delegate from a leading London law firm. All vendor delegates took a special interest in the discussion and it was a question which many seemed not to have dwelled upon in the past.

Would all attorneys become managers? Would all managers become Head of Operations and then again what about the growth path of the person who is already the Head of Operations? It is true that every attorney would not make his way to the managerial level; such being so what do you expect an efficient Indian LPO attorney do to? Leave after sometime and search for another job? Get frustrated and go back to work on Indian legal matters or may be keep on being an attorney in an LPO with an attitude of a bonded labor?

It is not a matter of distant past when we saw Clifford Chance taking two of their attorneys from their Gurgaon Center and putting them in CC Office in a different jurisdiction. They said that those two Indian attorneys working in their Gurgaon office was too brilliant to be kept just there without giving them a forward path to tread.

This is the kind of growth path that should be available to the efficient and brilliant members of the team of attorneys working in Indian LPOs. It should be the right of the clients to pick and choose the best brain from the LPOs in India to place them in their own office in any part of the globe. This would not only help the chosen ones to go ahead but at the same time it would set an example for the others to follow.

Given a wide growth path and such being actually put into action, many Indian lawyers of high caliber and intellect would be drawn to work for the LPO industry. It shall be a win-win situation for all.

If you are a Head of Operations of a LPO in India you must have got your eyebrows raised by now; don’t you worry, there is a huge pool of lawyers in India who are employable in LPOs and you can bank upon them in case your client takes away a few of your employees. As I have already said, this action of your client would attract many other Indian lawyers of good caliber to work for your LPO.

The same does apply to Managers managing the different projects and the Head of Operations as well. Each one must have a fair chance to go up the chain without being chained to a single position.

So I suggest, no non-solicitation clause in the off-shoring agreements restricting clients from offering the attorneys a position in their offices abroad. Of course you can build in a clause in the off-shoring agreement requiring the client to pay a reasonable premium to the concerned LPO for giving a release.

Sharing from London- Becoming too dependant?

Law firms and Corporations in the foreign destinations are not at all comfortable about becoming too dependent on any one particular LPO.

They know it is dangerous because extreme dependency affects them with every administrative and managerial change in the LPO. The LPO’s attrition directly hits their work and they suffer. The change of TLs and Managers during the pendency of the project causes major trouble to the work-flow of the off-shoring company.

Outsiders to the deal might get the impression that a particular LPO has almost monopolized a particular UK or US law firm. But from the comments made by many real time off-shoring law firms it was unambiguously clear that they have no choice because there aren’t too may players who can handle high volume.

They would love to look at alternatives which are equally good as back up, but such equally good LPO has to exist.

It was pointed out to them in the Conference as to what stops them from looking at medium sized LPOs as a viable alternative; the answer that came was that the reason that makes the law firms look only at big ones is because of the quick scalable capacity of the big LPOs.

Hope that those who read my blog articles in the KPOC website, might recall that I had pointed out the very same thing in one of my previous blog posts.

It is a fact that scalability has got a direct connection with the availability of working capital. It is not possible for each and every medium sized LPO to pump in great amount of working capital.

So what would they do?
Keep on existing as small units which the bigger customers would not want to look to?
Be satisfied with what ever comes their way?
Do some clerical job and fancifully wish that they were running LPOs?

Is it not high time that the medium and small sized LPOs made some collaborative efforts to unite and merge rather than struggle to exist as small and minuscule units?