Monday, October 25, 2010

A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 4 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In the first three parts of this series of posts commemorating Pro Bono Week 2010, I described the extent of the unmet civil legal needs (Part 1) of low-income families in the U.S., the need for a stronger public+private partnership (Part 2) to address that need, and ways that you and your peers can help (Part 3).

This final post lays out a type of wish list of actions that can help private lawyers help more often and includes a new video (at the end). But first, let me tell you about one case I will never forget.

A Client Story

Some years ago, I took the application for legal aid from a couple of elderly women. They were the pastor and a decon of a small, poor, inner-city church located in a very low-income part of town and they had a bunch of documents with them. As I looked through their documents, I saw right away that the church had been sued by a carpet business to collect on its unpaid invoice and establish a lien on the church's only asset: its building and a half-acre of land.

The women looked at me and choked back tears. "We never ordered or received any carpet!" they said. It struck my inner-most sense of justice and I accepted their case on the spot.

When I contacted the business owner, his response made me even more determined. "So what?" he replied when I pointed out that no carpet was delivered or installed. "I got a contract and they owe me for the whole amount."

Well, he didn't have a contract; he had a quote that the minister never accepted. In a nutshell, a carefully drafted answer with counterclaims drove him into bankruptcy court and a quick and easy Adversary Proceeding not only declared his claims for a lien and debt invalid, but also that the church's fraud claims would not be discharged by his bankruptcy. And with that, it was over.

I thought that the result was deeply satisfying. In this case, I helped prevent a gross injustice and hopefully convinced this businessman to never try that again. I wrote a nice letter to the minister to explain the result and that they had nothing to worry about.

A few days later, the front desk called to tell me that the two women were in the lobby asking to see their lawyer. I was worried that they had another problem or didn't understand the outcome of their case. But when I got to the lobby, all I got were hugs, tears and thanks. "You saved our church!" they said. "You were the answer to our prayers." Those hugs and words were more valuable than any fee I had ever collected.

What We Need Now

Growing the ranks of volunteers and increasing donations to help fund pro bono programs will go a long way. We also need changes in our ethics rules and pro bono programs.

The American Bar Association added Rule 6.5, “Nonprofit and Court-Annexed Limited Legal Services Programs” to its Model Rules of Professional Conduct in 2002. That rule attempted for the first time to carve out a limited exception to some of the conflict of interest rules. The exception only applies when a lawyer:
>>>>>a. participates in a qualified “limited assistance” event,
>>>>>b. with no expectation of continuing representation in the matter presented,
>>>>>c. does not personally know of a conflict of interest with the person helped at the event, and
>>>>>d. does not personally know that another lawyer in his or her firm would have a conflict of interest with the person helped at the event.

In the wake of recent major hurricanes in the U.S., scores of prospective volunteer lawyers have shied away from providing legal assistance to disaster victims in large part because they were concerned about inadvertently violating applicable ethics rules or causing an imputed conflict of interest that hurt their firms. Another cause for hesitation to prospective pro bono volunteers, especially in areas near a state border, is the worry about inadvertently violating another state’s “unauthorized practice of law” restrictions.

Well-meaning lawyers need protection from these worries. Some pro bono programs have set up “anonymous” call centers and other systems for assisting people without the lawyer and client knowing the other’s names or the names of the parties involved, but some would argue that even that is not safe, as enough facts can often be inferred from the conversation to trigger a potential conflict of interest or disqualification.

The rules should clearly exempt from discipline any lawyer who:
 Provides:
>>>>>i. free, short-term legal assistance
>>>>>ii. in a setting where complete conflict of interest checking is not feasible,
>>>>>iii. has no plan to ever receive compensation for the work,
>>>>>iv. does not allow confidential information from the assistance to be accessed by anyone at his or her firm, and
>>>>>v. has no personal knowledge that he or anyone else in his firm would have a conflict of interest with the client being helped at the event.
 Provides only general assessment and guidance in urgent situations regarding matters involving state laws where he is not licensed, with appropriate admonitions that the client seek other guidance from a lawyer duly licensed in the other state.
 Provides limited, “unbundled” assistance to self-represented litigants, such as coaching before a hearing, reviewing proposed orders, or explaining court rules.
 Provides free limited answers to general legal questions in online forums (as long as he includes appropriate disclaimers).

Rules regulating the legal profession in each state should also clarify what information court personnel and other nonlawyers can provide, such as general procedural guidance, preprinted legal information and how to obtain legal assistance or report lawyer misfeasance to the governing body.

The ABA Ethics 20/20 commission is now reviewing the 2002 Model Rules and issues unaddressed in them. Hopefully, they will come up with more protections and the states will adopt them quickly.

Pro Bono Programs.
Lawyers today are more culturally diverse in many ways than ever before. And “culture” means a lot of things in addition to race, religion, national origin, gender and sexual orientation:

Urban, suburban or rural
Large, medium, small or solo firm
Specialist or generalist
High, medium, low or non-existent technological skills
Heavy, light or zero bar association involvement
These differences make our profession richer and stronger, but give Pro bono program directors challenges:
-> As more lawyers are concentrated in urban areas, fewer are available to provide significant pro bono assistance in rural areas.
-> Some lawyers only communicate by mobile phone and text messages, while others prefer email, faxes or messages left with their secretaries.
-> Younger lawyers tend to work easily with web-based systems, while more-experienced lawyers prefer to deliver aid in person.
-> Lawyers move from firm to firm more frequently, often forgetting to let their pro bono coordinators know of the change.
-> Clients with pre-paid mobile phones can change phone numbers faster than their addresses, yet busy volunteers do not have a lot of time to chase after them to complete a matter.

These and other challenges require program updates in many places to keep attracting new volunteers while retaining valued long-timers. Some pro bono program directors will need to use more online and electronic tools to help busy lawyers volunteer, deliver legal assistance, obtain mentoring support, and report on their results, even as some long-time volunteers still require a phone call to sell them on a new pro bono case. Even more, these tools can be used to connect rural clients with urban lawyers in many types of cases.

Others will have to expand “assisted pro se” projects in ways that require fewer volunteers or incorporate nonlawyers who can deliver legal information and pre-printed guidance. [1]

"Do It Anyway"

But do not let these gaps dissuade you from getting involved. Pro bono programs have existed successfully for many decades and their dedicated staff can accommodate almost every volunteer’s needs who regularly takes cases for them.

It is Celebrate Pro Bono Week. Take an extra case as part of the festivities!


[1] The Texas Office of Courts Administration recently produced informative guidelines [pdf here] for court personnel so they can know where the line is between "legal information" and "legal advice." It is a useful model and has apparently been well received by court personnel across the state.

Monday, October 18, 2010

A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 3 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In my earlier posts, I described the extent of the unmet civil legal needs of low-income families in the U.S. and the need for a stronger public+private partnership to address that need. This one focuses on action.

If you are a lawyer, paralegal, law student, court reporter, court clerk or legal secretary, ask yourself and your peers: is our firm/office/department doing all it can to help relieve the distress our neighbors feel when they cannot afford needed legal help? Some of you are. Thank you. For the rest, take the time to connect with your local pro bono program or look at their statewide website for opportunities to make a real difference. Use your special skills in new ways to help those unable to adequately help themselves through often simple legal problems.

Many paths; one mountain peak

Of course, depending on your present occupation, your volunteer opportunities may seem limited.

 Lawyers in private firms are a rich resource for pro bono programs. Whether sending younger associates to volunteer and build practical legal skills faster or actually co-counseling with staff legal services lawyers to bolster and mentor, firms traditionally have carried their pro bono service banners proudly. Lawyers in small and solo practice tend to have difficulty giving their time away with no one else to keep the revenue stream flowing, but still have traditionally supported pro bono projects either financially or through limited volunteer services. With more cases to place with volunteers than they have on their rosters, Pro bono coordinators sometimes provide CLE courses in partial compensation and always show their thanks openly.

 Corporate and government legal department lawyers have more restrictions on how they can participate, yet they continue to find new ways to help those in need and support legal aid as their “charity of choice.” Some volunteer in “advice-only” events, on speakers’ panels, with fundraising and to recruit other volunteers.

 Paralegals and unlicensed lawyers can be important and valuable volunteers, as well. Many para-professionals have the skills, experience and special knowledge of areas of the law that affect pro bono clients. These “subject matter experts” offer support to lawyers who may be venturing into a new area of the law or taking on several cases at once.

 Court reporters, too, are needed in pro bono programs and staff legal services. Discovery is expensive, but often unavoidable for the responding party. While some large law firms may donate the costs of discovery incurred in their cases, many small firms and solo practitioners cannot. Donated court reporter time helps keep the legal playing field level and the volunteer lawyer in the game.

 Other volunteers are key to successful pro bono programs in the areas of fundraising, communications, office management, volunteer recruiting and recognition, technology, and more. Whether earning community service hours for school or exploring the legal profession as a potential vocation, high school, college and law school students can easily find ways to help keep the program moving smoothly along.

Rest assured, there are plenty of opportunities for everyone. Lawyers and other legal professionals in private practice tend to provide more pro bono services than their counterparts in corporate and government legal departments. Government lawyers can provide pro bono services, despite some misconceptions on that. Corporate counsel can find opportunities tailored to their circumstances and skills at web sites such as this one by the ACC and this one at the Alliance for Justice,

Many ways to join the effort

Here are some ideas on how to make a difference that are specific to the legal profession:

Helping People. As any experienced volunteer lawyer will tell you, there is nothing in the for-profit side of our profession that comes close to the satisfaction we get from knowing we have helped someone resolve a personal legal matter. Very few pro bono cases are merely financial disputes, because legal aid is designed to address cases that are not lucrative for the private bar. These are compelling situations often filled with emotions such as fear, anger and depression. Even when you do not win 100% of the client’s goals, they are normally appreciative of the fact that someone helped them speak up, fight back or stand tall. (The smiles and hugs are hard to beat, too!)

Helping Groups. While some will debate whether or not free legal assistance to their local $10+ million symphony should qualify as “pro bono” work, the truth is that nonprofits need legal assistance, too. There are thousands of small nonprofit organizations in the U.S. Many of them were created by or primarily serve families eligible for free civil legal services, so their budgets are very thin. Helping them continue to help others without spending scarce funds on legal fees is one way to help many people in each legal matter. You may not meet all of your “clients,” but those you do work with are sure to let you know how grateful they are for your service.

Helping Pro Bono Programs. As with most nonprofit organizations, pro bono programs are under-funded, under-staffed and over-whelmed by demand for their assistance. Financial support is always needed, but so is emotional support and public recognition for volunteers and pro bono program staff. Those “in transition” can learn new skills, network with peers and keep their sanity by getting involved while they have the extra time to contribute. Anyone can send cookies, drop off supplies, commend staff in a blog or simply stop by to ask the program coordinator what is needed.

A New Pledge

So let’s make a new pledge together:

“I pledge my support, as a legal professional,
to my fellow citizens and less-fortunate neighbors.
And true to the people, for whom I now stand,
I’ll provide, and support, pro bono assistance
To help achieve Equal Access to Justice for All!”
(rest assured, no one will be jailed for NOT reciting it!)

Monday, October 11, 2010

A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 2 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In my earlier post, I described the size of the problem in the U.S., where, for every person who receives federally-subsidized free legal assistance, at least one more eligible applicant is turned away. (See “Documenting the Justice Gap in America” 2009 update, page 12 (PDF).) Other countries have similar unmet needs based on their levels of funding for civil legal assistance. Government funded programs and non-governmental organizations cannot solve the problem alone. They need your help.

Poverty is An Equal Opportunity Status

The unmet need for civil legal assistance to low-income families in our communities is growing. John G. Levi, Chairman of the Legal Services Corporation’s Board of Directors, estimated that nearly 57 million Americans now qualify for free civil legal assistance based on their very-low-income status. And that is just based on 2009 Census data. When the official 2010 results are in, those ranks will no doubt grow significantly.

The numbers are worse than that: although civil legal aid programs report assistance to many people each funding cycle, many of those clients did not receive all of the help they needed due to the lack of staff and volunteers. Go to any civil legal aid office and ask about the applications they have to turn down due to insufficient staff. Without exception, each will have its stories of eligible applicants with compelling needs that they sent away with either no help or insufficient help to resolve the matter.

The issue is nonpartisan, nondenominational and gender and race neutral:

• Federal funding for free civil legal services began as part of the “Office of Economic Opportunity,” an agency created by the Economic Opportunity Act of 1964. The LSC has a bi-partisan Board of Directors (no more than 6 of its 11 Directors can be from the same political party) and bi-partisan support in Congress.

• Most major religions encourage help to the poor. (See these commentaries: Christian, Jewish, Muslim, and Hindu.) Religious organizations have voiced their support for legal aid to the poor around the globe. (See, for example, this story from Jakarta.)

• The loss of over 8 million jobs in the past few years means that many families are now living at or near the poverty line who used to be well above it. Many more are very close.

At a time when most politicians are calling for budget cuts and many states face their own financial challenges, there is little hope that federal and state funding for civil legal assistance will ever rise to the point where all eligible families and senior citizens will receive help with wills, child custody, home repair fraud, family violence protection, or appealing wrongful denials of public assistance benefits.

The Founding Fathers wrote the current U.S. Constitution “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” They understood that each of these was essential to the new nation’s long-term success. They also understood what can happen when the citizens stop believing that their government’s institutions deliver justice fairly.

Toward a Better Public+Private Solution

Government funded programs cannot meet the need at present funding levels and more funding is unlikely in the current economic and political climate. While poverty and access to justice are issues for all Americans, those of us in the legal profession have the skills, interests and knowledge necessary to provide immediate help to our most vulnerable citizens.

We need more private individuals, firms and organizations to join the effort. Wherever you find pro bono programs, there are more eligible applicants than there are willing volunteers. Pro bono program directors have very limited staff and funds, but seemingly unlimited pleas for legal assistance. Applicants in rural areas face additional challenges because most lawyers are located in urban areas that can be hours away and those in urban areas overwhelm the service providers every month.

Legal professionals are in a unique position to help fill the gap. Justice Oliver Wendell Holmes once said that “of all secular professions, [the law] has the highest standards.” [1] Roscoe Pound, Dean of Harvard Law School from 1916-1936, observed that professionalism in the law “refers to a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.” [2] More recently, Justice Sandra Day O’Connor, after quoting Dean Pound, went on to say that “lawyers have in their possession the keys to justice under the rule of law—the keys that open the courtroom door. Those keys…are held in trust for all those who would seek justice, rich and poor alike.” [3]

The challenge is still there today. How will you rise to meet it?

There are efforts underway to address the needs. The American Bar Association’s Young Lawyers Division and the Young Lawyers Associations in California, Florida, New York, Maryland and other states focus on unmet legal needs in their communities. The Texas Young Lawyers Association specifically has focused on connecting corporate counsel to pro bono opportunities with its new "Partnering for Pro Bono" program. Some states have established web sites to match volunteers to opportunities of interest without them ever leaving their keyboards: Texas, Colorado, New York, and Minnesota are a few examples.

What will you do to support your local pro bono program or legal aid organization? Are you already active in your local program? If not, you can start with these links to some of the legal aid and pro bono organizations:

United States:
American Bar Association’s Center for Pro
Legal Services Corporation’s Map
of LSC-funded Programs

Texas "C-BAR" (assistance to qualified nonprofits)

Canadian Bar Association
List of links to Legal
Aid Programs in Canada

United Kingdom:

National Pro
Bono Resource Centre

(to be continued...)

[1] Suffolk Bar Assn. Dinner, Feb. 5, 1885, Speeches (1913), reprinted in Lerner, Max, The Mind and Faith of Justice Holmes 29 (1954).

[2] Pound, Roscoe, The Lawyer from Antiquity to Modern Times, 5 (1954).

[3] Remarks at the dedication of Anheuser-Busch Hall, Washington University School of Law, St. Louis, Missouri, on Sept. 26, 1997, as printed in 76 Wash. U. L.Q. 5, 12 (1998).

Sunday, October 3, 2010

A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 1 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

“…with Liberty and Justice For All.”

School children recite the Pledge of Allegiance in the United States nearly every school day:

“I pledge allegiance, to the Flag,
of the United States of America.
And to the Republic, for which it stands.
One nation, under God, indivisible,
with liberty and justice for all.”

To help celebrate National Pro Bono weeks in various countries, I have written a brief series of posts proposing a similar kind of pledge for legal professionals.

Pro bono legal assistance has a long, rich history in nearly all “common law” legal systems. Lawyers have likely been providing free legal assistance to those who cannot afford to hire them since the legal profession began. The concept of providing free civil legal assistance to the poor in an organized fashion dates to the 1800s in the U.S. when legal aid societies were formed to meet the needs of their communities. Perhaps the best known type of pro bono legal assistance is court-appointed counsel for indigent defendants in criminal cases. Think of the American novel, To Kill A Mockingbird, for example.

In the U.S., there is a constitutional right to counsel for federal and most state criminal defendants when imprisonment is a potential punishment. (Most U.S. states also provide the right to representation when the State seeks to terminate their parental rights.) In the U.K. and Canada, people who are arrested may request an “Independent Solicitor” at the police station if they cannot afford their own representation.

But indigent defendants in civil cases have no such right to court-appointed representation. Even though depriving a person of a home, job, or marital property or suffering fraud by an unscrupulous business can be as traumatic and injurious as jail for most families, we have not elevated those problems to the same level as deprivation of liberty or life.

--When a relative wants to adopt an abused child who has been rescued by child protective services and placed in their care, the state will not pay for their legal assistance to complete the adoption.

--When an entire family is about to be homeless because a landlord with poor rent records or a sinister motive is evicting them on short notice, the eviction court will not appoint an attorney to represent them.

--When a judge intentionally or unintentionally refuses to correctly apply the law in a battered spouse’s divorce case, there is no right to counsel to avoid having our legal system used as yet one more weapon of abuse.

--When a working family needs to restructure their debts in bankruptcy to get back on their feet after a major illness or income disruption, the bankruptcy process is generally too complicated for them without legal guidance and legal fees can make the process cost more than they can pay.

--When an elderly widow needs title to her home cleared so she can obtain disaster relief funds or qualify for property tax reductions, no one at the tax office or property records office can represent her.

--When a legally-blind home owner who lives entirely on his Social Security retirement check is tricked into signing papers that give his home to a contractor he thought was trying to help him rebuild after a storm, the litigation required to nullify that contract is typically too complicated to handle alone.

--When a small neighborhood church for low-income families is sued by a carpet company for payment even though no carpet was ever delivered, no one can speak for the nonprofit group unless they can find a lawyer to defend them.
The Public Part of the Solution
Most western nations attempt to address this gap with legal aid in one form or another. There are a number of organizations who provide free civil legal help using full time staff. The Legal Services Corporation distributed over $400 million USD in 2009 to help fund over 136 programs across the U.S. and its territories, for example. Canadian governments contributed approximately $300 million CAD (48% of the total funding to civil and criminal legal aid programs). Standing government agencies and NGOs help millions of low-income people every year in many countries.

Yet the need is still there. The Legal Services Corporation in the United States calculated that, in 2009, almost one million eligible applicants were turned away due to insufficient funding. (See “Documenting the Justice Gap in America” 2009 update, page 9 (PDF).) According to the LSC, in the U.S., “for every client served by an LSC-funded program, at least one eligible person seeking help will be turned down.” (Id., at p. 12.)

This is not a small gap in our quest for “equal justice under the law” (Caldwell v. Texas, 137 U.S. 692, 697 (1891).) that only occurs in isolated cases. This is not merely a problem that plagues poorer states, counties and towns. The holes in America’s pledge to “justice for all” are everywhere. This is a national issue of grave importance in every nation. It is time for a new pledge: A Pledge To Strengthen Pro Bono Legal Assistance.

(to be continued...) Go to Part 2

Thursday, September 30, 2010

Mandatory Breaktime for Nursing Mothers at Work

As provisions of “Health Care Reform” take effect, employers and employees should pay attention. The legislation has far-reaching impact and can catch some by surprise who think it only regulates health insurers. There were two separate bills passed that comprise the “Health Care Reform” package: the Patient Protection and Affordable Care Act (PPACA) (full text) and the Health Care and Education Reform Act of 2010 (HCERA) (full text). (See a very comprehensive discussion of both on Wikipedia and a convenient collection of links to Congressional Record items related to both published by the GPO.)

This post focuses on one of the important but often overlooked changes that affect the workplace: mandatory break time for nursing mothers. The Department of Labor recently published Fact Sheet #73 to provide general information on this new requirement. In a nutshell, the new law provides that:

1. It is secondary to state laws if those laws are more generous in this area

2. It applies to “non-exempt” lactating employees only

3. “Reasonable break time” must be allowed for up to 1 year from child’s birth “each time” the employee needs to express breast milk

4. Employers must provide a place, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” and functionally suitable

5. The breaks can be uncompensated, except to the extent the covered employee uses otherwise compensated break time, but only if the employee is completely relieved of duty during the break

The provision went into effect immediately and applies to all employers. However, employers with less than 50 total employees, counting all locations together, who can show that compliance would impose an undue hardship, may be exempt. There are no detailed regulations or guidance on how to show undue hardship, but the statute’s definition of “undue hardship” is “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.” (29 U.S.C. 207(r)(3); PL 111-148, March 23, 2010) There also are no guidelines yet as to whether an employer must apply for confirmation of exemption in advance or rely on its own evidence in defense of an enforcement action.

The DOL expects to issue further guidance sometime in the future and hopefully will produce compliance assistance on this statute, per Fact Sheet 73. Employers and employees will benefit from more clarification. For example, is the PPACA’s requirement of an uncompensated break whenever the nursing mother needs it “more generous” than a state’s requirement that the time run concurrently with a compensated break “if possible?”

In the meantime, employers can look to resources and guidance from states that have had similar provisions for nursing mothers who return to work. The National Conference of State Legislatures has an updated survey of national and state Breastfeeding Laws. Susan Heathfield wrote a blog post, “Lactation Accommodation Policy,” that appears to pre-date the PPACA but provides guidance to employers drafting policies.

California already had a lactation accommodation law and is a rich resource for those looking for tested strategies and ways to avoid potential issues. The University of California-San Diego’s Lactation Accommodation policy is available online, for example.

Employers want their employees back at work happy, healthy and productive following maternity leave. Returning mothers who breastfeed need accommodation to be able to focus on work between pumping breaks. When these goals align, both win.

Saturday, July 3, 2010

What You Should Know When Selecting Software for Your Organization - Part Four

After reading Susan Cramm's book, 8 Things We Hate About IT, available through Harvard Business Press, I saw the need to supplement this series.*

(* For prior posts in this series, click to go to Part One (preliminary phase), Part Two (product search phase), or Part Three (final selection phase).)

Cramm, who is also author of the Harvard Business Review blog, "Have IT Your Way," clearly boils down her extensive experience into a simple handbook for the "IT-Challenged" manager. Here are a few points that are applicable to those in my series on purchasing software:

1. Before running headlong into a purchase, (a) evaluate the idea from the perspective of your boss's boss, (b) check to see whether the capability already exists, (d) ensure that you are ready to devote the necessary resources and (e) verify that the idea is as good as you think. (Cramm, p. 81)

2. Dramatically increase the odds of success for your initiative by (a) defining a clear purpose, (b) engage the "head, heart and hands" of those involved in your project, (c) integrate and streamline business processes, (d) leverage existing technology and (e) use a "fast cycle" approach that delivers at least some value every 3-6 months throughout the project. (Id., p. 89)

Rather than trying to digest the book for you here, I recommend you pick it up as soon as you can, especially if you are already planning a new IT project for your organization. It is concise yet you will use it as a reference book for a long time.

If you are the CIO, then get a copy for your "less-than-IT-enabled" managers who impact IT decisions and budgeting. And do it yesterday!

Wednesday, March 31, 2010

Are Your Legal Processes Ready for Outsourcing?

As legal departments around the world look for ways to keep up with demands without growing their budgets, “legal process outsourcing” (LPO) appears to be taking root (1). LPO promises a way to offload certain work to vendors while containing costs and freeing up your in-house resources. LPO is not the same thing as hiring outside counsel, though some outside firms now offer or claim to offer LPO services. LPO is an effort to focus your legal department on its highest and best uses while diverting mundane tasks to those who specialize in them and have thus developed highly efficient workflow without sacrificing quality.

Before you decide whether LPO is right for your department (2), however, or look for a vendor, determine whether your legal processes are suitable for outsourcing. Just because work is done by someone in your office does not mean it is necessarily “legal” or a “legal process.” And just because it is a recurring task does not necessarily mean that it is ready to outsource. The best work for a legal department or firm to outsource is recurring, repeatable, capable of sound quality control and measurable. Anything less than that will be ripe for problems very likely to more than wipe out any cost savings you seek from outsourcing.

Is the process “recurring?”

Given the amount of effort that is necessary to assure results in line with outsourcing expectations, it makes little sense to use an LPO vendor for unique legal work. Traditional outside counsel would most likely outperform the LPO options once you take into consideration the learning curve, knowledge transfer efforts and other intangible aspects of establishing a viable LPO relationship.

However, just because the work is unusual or has come up very rarely does not itself make LPO unworkable. It could be that the project is so large and involves so many smaller recurring, repeatable, measurable processes that those tasks can be cost effective to outsource, leaving the remainder of the project handled in-house or by traditional outside counsel. Document review within an unusually-large litigation matter is one example of this situation. With ten million pages to review, LPO vendors may offer better cost-benefit ratios than hiring your own army of contract document review attorneys.

Is the process “repeatable?”

Not all legal work is ideally suited for outsourcing. Work that is unusual for your clients and for which a significant amount of strategic legal analysis is required will be better off kept in-house or sent to outside counsel. The work must be something you can quickly teach another lawyer to do well.

Look first for the tasks that require the least amount of judgment calls, legal analysis and iterative client approvals. You may already have nonlawyer staff performing these in your office. If you are using contract, temporary attorneys for any tasks, those are also prime candidates for LPO.

Ask yourself these things about the work to evaluate suitability for easy outsourcing:

1. Can I write out the exact steps to complete this task accurately?
2. Can I provide adequate written guidelines for any decision points in the task?
3. Can someone who has never set foot in my department complete the task using those instructions and guidelines?
4. Can someone on my staff easily monitor output quality and quantity?

The idea here is to fashion a set of written procedures so that the work can be done in efficient, repeatable steps by interchangeable outsiders without a lot of questions and direct oversight by your legal staff but with consistently high quality. In other words, work you can re-sell to your clients as your own without an apparent loss of value. Those are “repeatable legal processes.”

Is the process capable of solid quality control?

If you lose more sleep by outsourcing than you gain, then something is wrong. You need confidence in the vendor as well as the quality of their work. When deciding which tasks might be suitable for LPO, “begin with the end in mind,” as Steven Covey advises.

Take some time to envision the ideal LPO arrangement for each set of outsourced tasks:

1. What will the output look like?
2. How will my staff monitor progress and accuracy?
3. How easily can errors be identified and corrected?
4. Who will correct the errors?
5. Will my staff need to or be able to add value to the work product before delivering to our clients?

Is there a reliable way to measure the work?

Most LPO vendors will likely have alternative pricing options for the types of tasks you seek to outsource. Some can be priced by the “piece” (such as a set fee per page, like court reporters charge) while others are priced by the hour with a maximum cap for the project. Before you engage vendors, take some time to think about ways to measure and pay for the tasks. The billing arrangement should dramatically shift the risk of inefficiency to the LPO vendor. After all, you are primarily looking for ways to contain costs without sacrificing quality. Otherwise, the LPO route is not likely going to be attractive.

Taking a page from litigation support vendors, some LPO companies look for piece rate options and then seek to set a fee that provides ample margin for their expected inefficiencies and profit. Tasks such as document review, permit applications, routine contracts and routine correspondence (demand letters, notifications, etc.) fit in this category. It will help quite a bit if you already know how much the tasks cost your department before you field bids from LPO vendors. At the least, work through some formula that allocates salary, benefits, overhead and supervision to the work so you have a basis for evaluating bids.

Other LPO vendors request hourly rates that undercut outside counsel but still provide adequate margins for themselves. The key here is naming an acceptable guaranteed quantity per hour or day so you are assured of those savings, assuming quality is at least as high as the work by your own staff or present outside counsel. Legal research and briefing support typically fits in this category. Again, if you understand what the work costs you to perform in-house, you can better evaluate any bids from vendors. Also, determine the realistic turn-around time for your in-house staff. If they are capable of doing the work in less than four hours, but have two weeks of backlog ahead of the task, find a way to evaluate that “delay factor” in your analysis.

Have you considered all the pros AND cons?

There are many other aspects of beginning an LPO arrangement to consider, of course. (3) The points above are directed primarily at your evaluation of the work you want to outsource. Even so, LPO is a growing industry and large corporate legal departments such as General Electric and Rio Tinto have already made large moves to take advantage of the perceived potential benefits.


1 For a very thorough description of LPO by then-Tufts University 3L Maya Karwande, see: “Student Research examining the Legal Process Outsourcing.”

2 This post is addressed to counsel in for-profit businesses in the U.S., though the same considerations are generally applicable to government counsel, some law firms and some nonprofit legal counsel.

3 In another post, I will explore the ethical considerations for LPO work, including the differences between “near-shoring” and “off-shoring” the tasks for U.S. counsel.