Introduction:
“Privilege” is defined in the glossary to the Civil Procedure Rules (CPR) as “[t]he right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognized by law.” “Privileged” documents are communications between a party and its legal advisors which those parties are not obliged to disclose during the disclosure and inspection process of an arbitration or litigation action, and generally relate to (e.g. legal professional privilege or litigation privilege). The privilege documents can be broadly classified under the attorney-client privilege and the work product doctrine.
The Attorney-Client Privilege:
The Attorney-Client Privilege protects communications made in confidence between a lawyer and a client for the purpose of seeking or giving legal advice without fear of discovery by third parties. The attorney-client privilege extends to both written and oral communications. The essential elements of the attorney-client privilege are detailed in Humphreys, Hutcheson, & Moseley v. Donovan, 755 F.2d 1211, 1219-1220 (6th Cir. 1985). The privilege extends to both outside and in-house counsel providing legal advice. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 360 (D. Mass. 1950). Further, communications to agents retained by the attorney (e.g., accountants, investigators, and consultants) would be privileged if those agents were retained because their services were necessary for effective legal representation. Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 632 (M.D. Pa. 1997). The attorney-client privilege also protects an attorney’s communication with corporate representatives if: (1) the communication was with an employee of the corporation; (2) the communication was made at the direction of a corporate superior so that the attorney could provide legal advice, and (3) the communication was within the scope of the employee’s duties. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981). The attorney-client privilege protects only communications related to the rendition of legal services, not business advice. United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984). However, advice concerning mechanics and tax consequences of alternative business strategies is considered to be legal, not commercial, in nature and thus may be privileged. In re Grand Jury Subpoena Duces Tecum (Rich), 731 F.2d 1032, 1036 (2nd Cir. 1984).
"A client is entitled to hire a lawyer, and have his secrets kept, for legal advice regarding the client's business affairs." United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). Commercial transactions too are entitled to protection and “[t]he attorney-client privilege still applies . . . where business advice is incorporated into legal advice. See Western Trails, Inc. v. Camp Coast to Coast, 139 F.R.D. 4, 8 (D.D.C. 1991). The Ninth Circuit has recognized that:
[p]rofessional communications, made by client to attorney, or communications passing between client and attorney, are, upon principles of public policy, and from the necessity of preserving confidence in all matters of business where the assistance or agency of an attorney is required, held to be privileged from disclosure; and this privilege . . . embraces all communications made by the client to his attorney for and in the course of the business for which the attorney may be employed.
Baldwin v. Commissioner, 125 F.2d 812, 814 (9th Cir. 1942). The privilege extends to cover both the substance of the client's confidential communications and the attorney's advice in response thereto.
Work Product Doctrine:
The work product doctrine allows attorneys and clients to create documents and gather information in the course of rendering legal advice without fear that those documents may be discoverable by third parties. The doctrine protects information that is prepared by or for a lawyer or client in anticipation of litigation or for trial. Fed. R. Civ. P. 36(b)(3). The basic element for applying the work product doctrine is that the material must be prepared in anticipation of litigation. The “anticipation” requirement does not, however, require that a lawsuit already be on file. Upjohn Co. v. United States, 449 U.S. 383, 386-87, 397-402 (1981).
The Crime-Fraud Exception:
A legal advice, which was sought in furtherance of a crime, a fraud, tort or other misconduct, will not be protected either by the attorney-client privilege or by the work product doctrine. The “crime-fraud exception” applies depends on, first, whether the client was engaged in or planning to commit criminal or fraudulent conduct when he sought legal advice or whether he committed such an offense after receiving the advice, and, second, if so, was the advice obtained in furtherance of, or otherwise closely related, to that misconduct. In re: Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987).
Conclusion:
This memorandum is only an introduction to attorney-client privilege and work product doctrine in United States. There are several federal courts decisions and different state laws for respective states on the attorney-client privilege and the work product doctrine that has not been discussed here for brevity. I have tried to summaries shortly some of the federal case laws on the privilege doctrine for a preliminary understanding of the attorney-client privilege and the work product doctrine.
Thursday, April 17, 2008
Enforceability of Electronic Contracts
Introduction:
The era of information technology and increasing use of internet and E- commerce has witnessed the emergence of new forms of contracts. An attempt is made here to analyze the enforceability of such contracts.
In India the first step to make the electronic contracts enforceable is the Information Technology Act, 2000 basing the UNICITRAL Model Law on Electronic Commerce 1996 with additions made in 1998.
The Government of India has also considered various legislation prevailing in other countries like Utah digital Signature Act, 1995, Malaysia Digital Signature Act, 1997, Malaysia Computer Crimes Act, 1997, Singapore Electronic Transactions Act, 1998, Texas Penal Code Chapter on Computer Crimes in addition to the above the UNICITRAL Model before enacting The Information Technology Act, 2000.
The Act provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies.
Essential Elements of Electronic Contract:
When forming a electronic contract one has to be careful to see the essential pre-requisites of a contract under the Indian Contract Act, 1872, the valid contract must fulfill the following essential pre-requisites:
(i)Consensus ad idem (consensus of minds on the subject matter) by way of offer and acceptance, Section 2(a) and (b)।
(ii)The proposal must be supported by consideration, Section 2(d).
(iii)The parties must be competent to contract, Sec 11,12.
(iv)The agreement must be made by the free consent of the parties, Section 13 to 22.
(v)The object must be lawful, Section 23 to 25.
(vi)The agreement must not be expressly declared to be void, Sections 26 to 30.
(vii)The agreement must comply with the provision of any law requiring it to be in writing attested or registered.
The Digital signatures:
While talking of Electronic Contract the first issue that raises is about the authenticity of the source from which the offer has come. This is solved by the use of digital signatures which affirms the authenticity. The Information Technology Act has defined digital signature in Sec.2(p) as follows:
Digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of Sec.3.
Sec.3 speaks about Authentication of electronic records: (1) Subject to the provisions of this Section any subscriber may authenticate an electronic record by affixing his digital signature.
However most of the electronic contacts are still entered into through without using the Electronic Signatures. The reasons are many, one of the reasons is that, though India’s IT sector is developing the cost of installing a Digital Signature system and registration is high and still continues to be a gray area for most of the importers and exporters.
Fax is also used for entering into contract and the acknowledgment sent from particular number in reply to the offer affixing signatures of the accepting party is considered as acceptance of the offer.
The Shrink wrap agreements and Click wrap agreements:
An area which has to be included in the Information Technology Act 2000 is the enforceability and validity of shrink wrap agreements and Click wrap agreements. These types of agreements. These new forms of agreements have dispelled well-settled notions of contract law.
The “Shrink wrap agreements” are terms and conditions that accompany software that is sold in computer stores. The terms and conditions are often contained in paper form within the sealed package or they appear electronically as part of the installation process of the software on one’s computer.
In either case, the terms and conditions are not known or accessible to the buyer of software until he or she actually buys it by paying for it and either opens the packaging or commences the installation process.
“Click wrap agreements” are electronic variations of the shrink wrap agreement. These usually appear on websites on the Internet, and are terms and conditions through which the user must navigate before conducting a transaction on-line.
These agreements require the user to click the button “I Agree” on the website before proceeding with an on-line transaction, thereby requiring a positive act on the part of the user which constitutes his or her assent to the contract.
The terms are usually heavily sided in favor of the service provider and onerous on the user and there is rarely any clause to protect the interest of the buyer.
In a landmark decision relating to enforceability of "shrink wrap license" the United States Court of Appeals in ProCD Vs Zeidenberg, 86 F.3d 1447 (7th Cir., 1996), held that such a license was valid and enforceable.
E-mail correspondence
Courts in U.S has recently ruled that proposals through e-mail correspondence will be recognized as binding as a written contract. See Shattuck v. Klotzbach, (14 Mass.L.Rptr. 360, 2001 WL 1839720). In Schattuck the Massachusetts Superior Court denying the defendants' motion, held that, “Here, all e-mail correspondence between the parties contained a typewritten signature at the end. Taken as a whole, a reasonable trier of fact could conclude that the e-mails sent by the defendant were "signed" with the intent to authenticate the information contained therein as his act.” New York courts also have expressed similar standards, “the 'signature' on the e-mail is valid under our general statute of frauds...” See, Vista Developers Corp. v. VFP Realty LLC, 2007 NY Slip Op 27418, 5 (N.Y. Misc. 2007).
The bottom line is that, a record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
Recommendation
In spite of innumerable transaction through these types of electronic contracts, there is no step taken to lay down regulation protecting consumers as well as business men who enter into these types of contracts which does not give any right or protection to the consumer or buyer.
The Rules may be laid down in such a way that:
The user of such contract should be given a reasonable opportunity to review the terms and conditions of the contract before it is concluded.
The user should have the opportunity to reject the transaction upon review of the terms and conditions.
The warranties, disclaimers and limitations of damages should be conspicuous and should not be unfair or excessive.
The Language of the terms and conditions should be intelligible to the common person.
---------------------------
The era of information technology and increasing use of internet and E- commerce has witnessed the emergence of new forms of contracts. An attempt is made here to analyze the enforceability of such contracts.
In India the first step to make the electronic contracts enforceable is the Information Technology Act, 2000 basing the UNICITRAL Model Law on Electronic Commerce 1996 with additions made in 1998.
The Government of India has also considered various legislation prevailing in other countries like Utah digital Signature Act, 1995, Malaysia Digital Signature Act, 1997, Malaysia Computer Crimes Act, 1997, Singapore Electronic Transactions Act, 1998, Texas Penal Code Chapter on Computer Crimes in addition to the above the UNICITRAL Model before enacting The Information Technology Act, 2000.
The Act provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies.
Essential Elements of Electronic Contract:
When forming a electronic contract one has to be careful to see the essential pre-requisites of a contract under the Indian Contract Act, 1872, the valid contract must fulfill the following essential pre-requisites:
(i)Consensus ad idem (consensus of minds on the subject matter) by way of offer and acceptance, Section 2(a) and (b)।
(ii)The proposal must be supported by consideration, Section 2(d).
(iii)The parties must be competent to contract, Sec 11,12.
(iv)The agreement must be made by the free consent of the parties, Section 13 to 22.
(v)The object must be lawful, Section 23 to 25.
(vi)The agreement must not be expressly declared to be void, Sections 26 to 30.
(vii)The agreement must comply with the provision of any law requiring it to be in writing attested or registered.
The Digital signatures:
While talking of Electronic Contract the first issue that raises is about the authenticity of the source from which the offer has come. This is solved by the use of digital signatures which affirms the authenticity. The Information Technology Act has defined digital signature in Sec.2(p) as follows:
Digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of Sec.3.
Sec.3 speaks about Authentication of electronic records: (1) Subject to the provisions of this Section any subscriber may authenticate an electronic record by affixing his digital signature.
However most of the electronic contacts are still entered into through without using the Electronic Signatures. The reasons are many, one of the reasons is that, though India’s IT sector is developing the cost of installing a Digital Signature system and registration is high and still continues to be a gray area for most of the importers and exporters.
Fax is also used for entering into contract and the acknowledgment sent from particular number in reply to the offer affixing signatures of the accepting party is considered as acceptance of the offer.
The Shrink wrap agreements and Click wrap agreements:
An area which has to be included in the Information Technology Act 2000 is the enforceability and validity of shrink wrap agreements and Click wrap agreements. These types of agreements. These new forms of agreements have dispelled well-settled notions of contract law.
The “Shrink wrap agreements” are terms and conditions that accompany software that is sold in computer stores. The terms and conditions are often contained in paper form within the sealed package or they appear electronically as part of the installation process of the software on one’s computer.
In either case, the terms and conditions are not known or accessible to the buyer of software until he or she actually buys it by paying for it and either opens the packaging or commences the installation process.
“Click wrap agreements” are electronic variations of the shrink wrap agreement. These usually appear on websites on the Internet, and are terms and conditions through which the user must navigate before conducting a transaction on-line.
These agreements require the user to click the button “I Agree” on the website before proceeding with an on-line transaction, thereby requiring a positive act on the part of the user which constitutes his or her assent to the contract.
The terms are usually heavily sided in favor of the service provider and onerous on the user and there is rarely any clause to protect the interest of the buyer.
In a landmark decision relating to enforceability of "shrink wrap license" the United States Court of Appeals in ProCD Vs Zeidenberg, 86 F.3d 1447 (7th Cir., 1996), held that such a license was valid and enforceable.
E-mail correspondence
Courts in U.S has recently ruled that proposals through e-mail correspondence will be recognized as binding as a written contract. See Shattuck v. Klotzbach, (14 Mass.L.Rptr. 360, 2001 WL 1839720). In Schattuck the Massachusetts Superior Court denying the defendants' motion, held that, “Here, all e-mail correspondence between the parties contained a typewritten signature at the end. Taken as a whole, a reasonable trier of fact could conclude that the e-mails sent by the defendant were "signed" with the intent to authenticate the information contained therein as his act.” New York courts also have expressed similar standards, “the 'signature' on the e-mail is valid under our general statute of frauds...” See, Vista Developers Corp. v. VFP Realty LLC, 2007 NY Slip Op 27418, 5 (N.Y. Misc. 2007).
The bottom line is that, a record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
Recommendation
In spite of innumerable transaction through these types of electronic contracts, there is no step taken to lay down regulation protecting consumers as well as business men who enter into these types of contracts which does not give any right or protection to the consumer or buyer.
The Rules may be laid down in such a way that:
The user of such contract should be given a reasonable opportunity to review the terms and conditions of the contract before it is concluded.
The user should have the opportunity to reject the transaction upon review of the terms and conditions.
The warranties, disclaimers and limitations of damages should be conspicuous and should not be unfair or excessive.
The Language of the terms and conditions should be intelligible to the common person.
---------------------------
Friday, October 5, 2007
Range of Legal Services Provided by LPO 's in India and Concerns Regarding Violation of Legal Ethics.
The range of services processes being outsourced in the legal sector has evolved from transcription, secretarial support, voice messaging and word processing to more domain specific work typically performed by paralegals, legal assistants, and professional support lawyers. This includes contract review, drafting and management, patent research, analysis and writing, litigation support and legal research, general research and review.
Contracts that need reviewing, amendments and tracking are typical activities considered ideal for outsourcing. Further document discovery and processing; preparation of case law bibles, compilation of client/witness, attendance and interview documents are also being done offshore to support an ongoing litigation. Generic research and creation of templates and precedents and other support functions performed by support lawyers are also suitable processes for offshore outsourcing.
Key legal services currently being sourced from India may be broadly categorized into
Paralegal support, Legal support, Legal Research, Patent research and analysis, Patent application drafting and Patent prosecution.
The Bar committees of New York City, San Diego County and Los Angeles County have recently ruled that lawyers may contract with foreign lawyers not admitted to practice in any jurisdiction in the United States, or with non-lawyers outside the United States, to perform legal work for U.S. clients. Two committees of the Florida Bar also have taken notice of the practice of legal outsourcing as acceptable. The outsourcing trend is spreading and on understanding the positive aspects law firms and client are opting for legal outsourcing, for faster turnaround. In this point I would like to quote Robert Glennie, New Galexy’s founder, saying that “ the Indian company offers the same quality of legal support work for half the cost charged by top firms in London’s legal establishment,” quoted by Larry Bodine.
There is no scope for concern over whether the legal outsourcing amounts to unauthorized practice of law, when the legal service is provided under supervision of licensed attorneys in compliance with ABA guidelines on legal ethics.
Contracts that need reviewing, amendments and tracking are typical activities considered ideal for outsourcing. Further document discovery and processing; preparation of case law bibles, compilation of client/witness, attendance and interview documents are also being done offshore to support an ongoing litigation. Generic research and creation of templates and precedents and other support functions performed by support lawyers are also suitable processes for offshore outsourcing.
Key legal services currently being sourced from India may be broadly categorized into
Paralegal support, Legal support, Legal Research, Patent research and analysis, Patent application drafting and Patent prosecution.
The Bar committees of New York City, San Diego County and Los Angeles County have recently ruled that lawyers may contract with foreign lawyers not admitted to practice in any jurisdiction in the United States, or with non-lawyers outside the United States, to perform legal work for U.S. clients. Two committees of the Florida Bar also have taken notice of the practice of legal outsourcing as acceptable. The outsourcing trend is spreading and on understanding the positive aspects law firms and client are opting for legal outsourcing, for faster turnaround. In this point I would like to quote Robert Glennie, New Galexy’s founder, saying that “ the Indian company offers the same quality of legal support work for half the cost charged by top firms in London’s legal establishment,” quoted by Larry Bodine.
There is no scope for concern over whether the legal outsourcing amounts to unauthorized practice of law, when the legal service is provided under supervision of licensed attorneys in compliance with ABA guidelines on legal ethics.
Saturday, September 15, 2007
Whether Legal Process Outsourcing to Indian KPO’s Amounts to Unauthorized Practice Of Law in United States?
The key legal issue while considering off shoring Legal Process Outsourcing to India would be, whether the work performed by the Legal Process Outsourcing Companies (LPO) or Knowledge Process Outsourcing Companies (KPOs) constitutes an unauthorized practice of law? The simple answer is that, works performed by the LPO / KPO would not constitute an unauthorized practice of law if the work is performed under supervision of a licensed attorney.
For understanding further we can take a scenario wherein a U.S Law firm sends legal works to an Indian LPO, after getting approval from the client. The LPO in India under the supervision of the U.S Law Firm conducts research and drafts the assignment using Lexis and Westlaw databases for the Law Firm after analyzing the issues framed by the U.S Law Firm for the Client. The Licensed Attorneys in the U.S Law Firm carefully reviews and edits the assignment and then signs the material and then sends it to the client.
In this scenario there is no violation of any of the state statutes or regulations and is in compliance with America Bar Association’s rulings on ethics. Thus the unauthorized practice of law by a LPO appears to be the amount of supervision over the non-licensed lawyer / non-lawyers.
It is clear from the above that when work is done directly for a client by an LPO without having license to practice or licensed attorneys to practice respective state law, then such practice would amount to unauthorized practice of law.
If the Law Firm has direct supervisory authority over the non licensed / non lawyer LPO and takes responsibility for the conduct of the LPO in compliance with the Rules of Professional Conduct, such practice would not be falling under unauthorized practice of law.
More importantly in the above given scenario the U.S Law Firm in turn exercises independent judgment in deciding how and whether to use the opinion on the client’s behalf. Thus the work performed by the LPO would not amount to unauthorized practice of law.
Conclusion:
The key issue on the unauthorized practice of law by a LPO appears to be the amount of supervision over the non-lawyer. The law on legal outsourcing is still evolving and the Bar committees of New York City (NYCBA Formal Op. 2006-3), San Diego County (SDCBA Formal Legal Ethics Op. 2007-1) and Los Angeles County ( LACBA Ethics Op. 518) have ruled that lawyers may contract with foreign lawyers not admitted to practice in any jurisdiction in the United States, or with nonlawyers outside the United States, to perform legal work for U.S. clients. These authorities hold that foreign legal outsourcing does not constitute aiding the unauthorized practice of law. “Outsourcing overseas has begun to command attention in the legal profession, as corporate legal departments and law firms endeavor to reduce costs and manage operations more efficiently.” NYCBA Formal Op. 2006-3. Underlining the fact that legal process outsourcing would not amount to unauthorized practice of law when supervisory and decision-making functions are done by licensed attorneys.
---------------
For understanding further we can take a scenario wherein a U.S Law firm sends legal works to an Indian LPO, after getting approval from the client. The LPO in India under the supervision of the U.S Law Firm conducts research and drafts the assignment using Lexis and Westlaw databases for the Law Firm after analyzing the issues framed by the U.S Law Firm for the Client. The Licensed Attorneys in the U.S Law Firm carefully reviews and edits the assignment and then signs the material and then sends it to the client.
In this scenario there is no violation of any of the state statutes or regulations and is in compliance with America Bar Association’s rulings on ethics. Thus the unauthorized practice of law by a LPO appears to be the amount of supervision over the non-licensed lawyer / non-lawyers.
It is clear from the above that when work is done directly for a client by an LPO without having license to practice or licensed attorneys to practice respective state law, then such practice would amount to unauthorized practice of law.
If the Law Firm has direct supervisory authority over the non licensed / non lawyer LPO and takes responsibility for the conduct of the LPO in compliance with the Rules of Professional Conduct, such practice would not be falling under unauthorized practice of law.
More importantly in the above given scenario the U.S Law Firm in turn exercises independent judgment in deciding how and whether to use the opinion on the client’s behalf. Thus the work performed by the LPO would not amount to unauthorized practice of law.
Conclusion:
The key issue on the unauthorized practice of law by a LPO appears to be the amount of supervision over the non-lawyer. The law on legal outsourcing is still evolving and the Bar committees of New York City (NYCBA Formal Op. 2006-3), San Diego County (SDCBA Formal Legal Ethics Op. 2007-1) and Los Angeles County ( LACBA Ethics Op. 518) have ruled that lawyers may contract with foreign lawyers not admitted to practice in any jurisdiction in the United States, or with nonlawyers outside the United States, to perform legal work for U.S. clients. These authorities hold that foreign legal outsourcing does not constitute aiding the unauthorized practice of law. “Outsourcing overseas has begun to command attention in the legal profession, as corporate legal departments and law firms endeavor to reduce costs and manage operations more efficiently.” NYCBA Formal Op. 2006-3. Underlining the fact that legal process outsourcing would not amount to unauthorized practice of law when supervisory and decision-making functions are done by licensed attorneys.
---------------
Thursday, September 13, 2007
Legal Outsourcing In India
Introduction.
MNCs (in-house legal departments), international law firms, legal publishing companies and legal research firms are now outsourcing legal services to India.
Legal outsourcing can be categorized into low-value and high-value services. The low value services include processes like legal transcription, document conversion, legal data entry, legal coding, indexing, paralegal services, etc. which can be categorized as paralegal support. These jobs are typically quite process-oriented, requiring less complex capabilities, and are hence billed at lower rates.
In contrast, the higher-end jobs like legal research, litigation support and patent related work require much higher skill levels and knowledge, and hence command a higher billing rate.
Billing rates.
Legal Counsel: - $30 – 125/ph.
Outsourced legal counsel services for an in-house firm (with or without a legal
department) or a legal firm, encompass most of the areas: Antitrust, bankruptcy, construction, corporate, criminal, civil rights, employment and employee benefits, energy, entertainment, family, government, healthcare, immigration, insurance, intellectual property, Internet/E-commerce, litigation, real estate, tax, telecommunications, trusts and estates and other areas.
Legal advice and counsel is provided through telephones, emails or online methods and includes drafting of opinions, briefs, complaints, responses and other court documents following the relevant statutes and local rules of the respective jurisdictions.
Legal Research -$35-50/ph.
Lawyers sift through large quantities of data using electronic databases (Westlaw and Lexis Nexis and the Internet, to provide focused research to law firms and attorneys. Legal research is conducted for all sorts of US laws, including case and statutory law.
Legal Research Online database searches, 50 state surveys, Drafting contracts, Contract management.
Paralegal Support $8-20/ph.
Legal Transcription, Coding, Indexing, Document review, Drafting and revising contracts/agreements:
Various types of contracts and agreements such as employee contracts, non-disclosure agreements, licensing and supplier agreements, etc are initially drafted by trained Indian lawyers and sent for review to US attorneys. Once reviewed, these may be sent back for further revisions and finalization. Proofreading may also be provided.
Intellectual Property work -$25-80/ph.
Patent Services: These include patent research and analysis, helping file patent applications, infringement studies, and patent / trademark ‘prior art’ searches.
Patent research and analysis: Landscape studies, patent appraisals and valuation studies, infringement analysis and prior art searching.
Patent application drafting: The various stages of filing a patent application (prior art searches, patentability assessment, patent landscaping, drafting specifications, drawings, etc).
Patent prosecution: Indian companies are helping US attorneys in the patent prosecution process, from providing a technical assessment of the prior art cited by a patent examiner to drafting responses to the examiner’s objections.Prior art search.
Research tools available.
Westlaw and Lexis Nexis are the most popular online research tools.
Infrastructure – Space to work.
Most of the outsourcing companies in India work 24 hours in two shifts. The paralegal works detailed above are mostly done in the night shifts.
The most important factor while looking into the infrastructure aspect is regarding the Internet connectivity. The broadband enabled satellite Internet connection is preferred for unobstructed net connectivity.
The employees strength varies with the type and number of project handled. When high-end work requires less number of employees the low end requires more.
The salary for an Indian Attorney who has the skill to handle high-end work would be Rs. 35,000 to 55,000 p/month.
For low-end paralegal work it would be Rs.15, 000 – 30,000/-
For coding assignments specific software would be purchased by the outsourcing company abroad wherein all the documents to be coded would be scanned and loaded and the employees will be trained to use this software following the protocols provided by the client.
Training the team
The employees are given test projects on specific issues and are given passwords of databases (westlaw or lexis) for research. Some of the law schools in India give training to follow the ‘blue book’ and the IRAC (Issue, Rules Analysis and Conclusion) system of drafting. If the analysis is good the employee can be taken in and then given the drafting and research training.
Initially a core team has to be trained by a trainer / attorney from the country of outsourcing. The core team should be efficient enough to train the other team members’ later on.
Organization structure.
Most of the companies are Private Limited Companies. However if the employee strength is less than 21 the company could maintain their staff as consultants to avoid various compliances, book keeping procedures and contribution of P.F, Insurance etc., for the employees.
The problems that you probably face:
Searching and analyzing the candidates with ability to shift from Indian legal system to a foreign legal system requires tremendous patience and hard work. The company needs an efficient H.R team for this.
Training is equally tough. The core team should be efficient to handle it.
Companies also have to consider additional expenses for maintaining people on bench to coup up with urgent requirement of human resources.
Internet connectivity and office space also have to be looked into with much care hence the company need an IT team who will take care of the smooth functioning of the computers and internet.
Companies provide pick and drop facility for the employees specifically for employees working at night shifts.
No issues have yet risen regarding the confidentiality of work.
-------------
MNCs (in-house legal departments), international law firms, legal publishing companies and legal research firms are now outsourcing legal services to India.
Legal outsourcing can be categorized into low-value and high-value services. The low value services include processes like legal transcription, document conversion, legal data entry, legal coding, indexing, paralegal services, etc. which can be categorized as paralegal support. These jobs are typically quite process-oriented, requiring less complex capabilities, and are hence billed at lower rates.
In contrast, the higher-end jobs like legal research, litigation support and patent related work require much higher skill levels and knowledge, and hence command a higher billing rate.
Billing rates.
Legal Counsel: - $30 – 125/ph.
Outsourced legal counsel services for an in-house firm (with or without a legal
department) or a legal firm, encompass most of the areas: Antitrust, bankruptcy, construction, corporate, criminal, civil rights, employment and employee benefits, energy, entertainment, family, government, healthcare, immigration, insurance, intellectual property, Internet/E-commerce, litigation, real estate, tax, telecommunications, trusts and estates and other areas.
Legal advice and counsel is provided through telephones, emails or online methods and includes drafting of opinions, briefs, complaints, responses and other court documents following the relevant statutes and local rules of the respective jurisdictions.
Legal Research -$35-50/ph.
Lawyers sift through large quantities of data using electronic databases (Westlaw and Lexis Nexis and the Internet, to provide focused research to law firms and attorneys. Legal research is conducted for all sorts of US laws, including case and statutory law.
Legal Research Online database searches, 50 state surveys, Drafting contracts, Contract management.
Paralegal Support $8-20/ph.
Legal Transcription, Coding, Indexing, Document review, Drafting and revising contracts/agreements:
Various types of contracts and agreements such as employee contracts, non-disclosure agreements, licensing and supplier agreements, etc are initially drafted by trained Indian lawyers and sent for review to US attorneys. Once reviewed, these may be sent back for further revisions and finalization. Proofreading may also be provided.
Intellectual Property work -$25-80/ph.
Patent Services: These include patent research and analysis, helping file patent applications, infringement studies, and patent / trademark ‘prior art’ searches.
Patent research and analysis: Landscape studies, patent appraisals and valuation studies, infringement analysis and prior art searching.
Patent application drafting: The various stages of filing a patent application (prior art searches, patentability assessment, patent landscaping, drafting specifications, drawings, etc).
Patent prosecution: Indian companies are helping US attorneys in the patent prosecution process, from providing a technical assessment of the prior art cited by a patent examiner to drafting responses to the examiner’s objections.Prior art search.
Research tools available.
Westlaw and Lexis Nexis are the most popular online research tools.
Infrastructure – Space to work.
Most of the outsourcing companies in India work 24 hours in two shifts. The paralegal works detailed above are mostly done in the night shifts.
The most important factor while looking into the infrastructure aspect is regarding the Internet connectivity. The broadband enabled satellite Internet connection is preferred for unobstructed net connectivity.
The employees strength varies with the type and number of project handled. When high-end work requires less number of employees the low end requires more.
The salary for an Indian Attorney who has the skill to handle high-end work would be Rs. 35,000 to 55,000 p/month.
For low-end paralegal work it would be Rs.15, 000 – 30,000/-
For coding assignments specific software would be purchased by the outsourcing company abroad wherein all the documents to be coded would be scanned and loaded and the employees will be trained to use this software following the protocols provided by the client.
Training the team
The employees are given test projects on specific issues and are given passwords of databases (westlaw or lexis) for research. Some of the law schools in India give training to follow the ‘blue book’ and the IRAC (Issue, Rules Analysis and Conclusion) system of drafting. If the analysis is good the employee can be taken in and then given the drafting and research training.
Initially a core team has to be trained by a trainer / attorney from the country of outsourcing. The core team should be efficient enough to train the other team members’ later on.
Organization structure.
Most of the companies are Private Limited Companies. However if the employee strength is less than 21 the company could maintain their staff as consultants to avoid various compliances, book keeping procedures and contribution of P.F, Insurance etc., for the employees.
The problems that you probably face:
Searching and analyzing the candidates with ability to shift from Indian legal system to a foreign legal system requires tremendous patience and hard work. The company needs an efficient H.R team for this.
Training is equally tough. The core team should be efficient to handle it.
Companies also have to consider additional expenses for maintaining people on bench to coup up with urgent requirement of human resources.
Internet connectivity and office space also have to be looked into with much care hence the company need an IT team who will take care of the smooth functioning of the computers and internet.
Companies provide pick and drop facility for the employees specifically for employees working at night shifts.
No issues have yet risen regarding the confidentiality of work.
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Thursday, July 5, 2007
Factors Driving Growth of Legal Outsourcing to India
The range of processes being outsourced in the legal sector has evolved from transcription, secretarial support, voice messaging and word processing to more domain specific work typically performed by paralegals, legal assistants, and professional support lawyers. This includes contract review, drafting and management, patent research, analysis and writing, litigation support and legal research, general research and review.
Contracts that need reviewing, amendments and tracking are typical activities considered ideal for outsourcing. Further document discovery and processing; preparation of case law bibles, compilation of client/witness, attendance and interview documents are also being done offshore to support an ongoing litigation. Generic research and creation of templates and precedents and other support functions performed by support lawyers are also suitable processes for offshore outsourcing.
Key legal services currently being sourced from India may be broadly categorized into
paralegal support, legal support and patenting services.
· Paralegal support:- Document processing, production and management: The services include word processing,legal transcription, legal coding, document conversion, keyword and XML tagging and
archiving.
· Legal support:- Drafting and revising contracts/agreements: Various types of contracts and agreements such as employee contracts, non-disclosure agreements, licensing and supplier agreements, etc are initially drafted by trained Indian lawyers and sent for review to US attorneys. Once reviewed, these may be sent back for further revisions and finalization. Proofreading may also be provided. In some cases Indian lawyers are also negotiating revisions with third parties.
. Legal Research:- Lawyers sift through large quantities of data using electronic databases and
the Internet, to provide focused research to law firms and attorneys. Legal research is
conducted for all sorts of US laws, including case and statutory law.
. Legal Counsel:- Outsourced legal counsel services for an in-house firm (with or without a legal
department) or a legal firm, encompass most of the areas: Antitrust, bankruptcy, construction,
corporate, criminal, civil rights, employment and employee benefits, energy, entertainment,
family, government, healthcare, immigration, insurance, intellectual property, Internet/Ecommerce, litigation, real estate, tax, telecommunications, trusts and estates and other areas. Legal advice and counsel is provided through telephones, emails or online methods.
· Patent Services:- These include patent research and analysis, helping file patent applications,infringement studies, and patent / trademark ‘prior art’ searches.
. Patent research and analysis:- Landscape studies, patent appraisals and valuation studies,
infringement analysis and prior art searching.
. Patent application drafting:- The various stages of filing a patent application (prior art searches, patentability assessment, patent landscaping, drafting specifications, drawings, etc) may be outsourced to an Indian party.
. Patent prosecution:- Indian companies are helping US attorneys in the patent prosecution
process, from providing a technical assessment of the prior art cited by a patent examiner to
drafting responses to the examiner’s objections.
Contracts that need reviewing, amendments and tracking are typical activities considered ideal for outsourcing. Further document discovery and processing; preparation of case law bibles, compilation of client/witness, attendance and interview documents are also being done offshore to support an ongoing litigation. Generic research and creation of templates and precedents and other support functions performed by support lawyers are also suitable processes for offshore outsourcing.
Key legal services currently being sourced from India may be broadly categorized into
paralegal support, legal support and patenting services.
· Paralegal support:- Document processing, production and management: The services include word processing,legal transcription, legal coding, document conversion, keyword and XML tagging and
archiving.
· Legal support:- Drafting and revising contracts/agreements: Various types of contracts and agreements such as employee contracts, non-disclosure agreements, licensing and supplier agreements, etc are initially drafted by trained Indian lawyers and sent for review to US attorneys. Once reviewed, these may be sent back for further revisions and finalization. Proofreading may also be provided. In some cases Indian lawyers are also negotiating revisions with third parties.
. Legal Research:- Lawyers sift through large quantities of data using electronic databases and
the Internet, to provide focused research to law firms and attorneys. Legal research is
conducted for all sorts of US laws, including case and statutory law.
. Legal Counsel:- Outsourced legal counsel services for an in-house firm (with or without a legal
department) or a legal firm, encompass most of the areas: Antitrust, bankruptcy, construction,
corporate, criminal, civil rights, employment and employee benefits, energy, entertainment,
family, government, healthcare, immigration, insurance, intellectual property, Internet/Ecommerce, litigation, real estate, tax, telecommunications, trusts and estates and other areas. Legal advice and counsel is provided through telephones, emails or online methods.
· Patent Services:- These include patent research and analysis, helping file patent applications,infringement studies, and patent / trademark ‘prior art’ searches.
. Patent research and analysis:- Landscape studies, patent appraisals and valuation studies,
infringement analysis and prior art searching.
. Patent application drafting:- The various stages of filing a patent application (prior art searches, patentability assessment, patent landscaping, drafting specifications, drawings, etc) may be outsourced to an Indian party.
. Patent prosecution:- Indian companies are helping US attorneys in the patent prosecution
process, from providing a technical assessment of the prior art cited by a patent examiner to
drafting responses to the examiner’s objections.
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