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The outsourcing of legal services to foreign countries presents ethical challenges as well as business opportunities for small firms. Implementing measures to protect against the disclosure of confidential client communications is critical. Non-lawyers who work at a lawyer’s direction must also respect the confidentiality of client information. SPECIAL ISSUE OF OFFSHORING Taking measures to protect client confidences becomes far more complicated when the employees or third-party contractors are outside the United States. It is not simply, or even fundamentally, a question of geography. If the offshore company is owned by foreign lawyers, they may not fully appreciate the extent of a U.S. law firm’s duty to preserve confidential information. Their own legal system may reflect different public policy choices. Even if the foreign lawyers have an L.L.M. from a U.S. law school, they may not be sensitive to the nuances of confidentiality and the attorney-client privilege. If the offshore company is owned by non-lawyers, the danger of misunderstandings and miscommunications about confidentiality increases geometrically. SOME PRECAUTIONS Educational and management initiatives. Attorneys should adopt specific measures to educate new employees and independent contractors about the importance and scope of the duty of non-disclosure. These measures include, at a minimum, a discussion at the time of hiring and the execution of a statement acknowledging this duty. In addition, the law firm should send periodic reminders. Restricted access. Make sure that only reputable employees have access to confidential information and that adequate measures are in place to prevent both physical and electronic theft of the information. Studying the legal environment. Investigate the substantive law of the country where the services are being performed. A law firm must consider the risk, if any, to confidential information that would result if an employee, customer or creditor of either the client or the offshore company instituted a lawsuit and sought to seize the client’s or company’s property (e.g., papers and documents containing confidential information) within the jurisdiction. Such an evaluation must also include an assessment of the efficiency and honesty of the jurisdiction’s court system, because in certain countries the judiciary is notoriously slow and/or corrupt.

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