- The Washington Times - Saturday, May 31, 2008

Some lawyers are worried that the growing practice of outsourcing legal work to overseas companies is undermining the constitutional guarantees that protect the privacy of lawyer-client communications, leaving them vulnerable to electronic spying by the federal government.

Paralegal firms in India are doing a booming business handling the routine legal work of American law firms, such as drafting contracts, writing patents, indexing documents or researching laws.

These so-called legal process outsourcing firms charge an average of about $40 an hour for their work, about one-quarter to one-third of what the work would cost in the United States.

But a lawsuit filed this month by the Bethesda firm of Newman, McIntosh & Hennessey argues that the constitutional guarantees that protect confidential communications between lawyers and clients may not apply when legal work is transmitted abroad - typically by e-mail, fax or telephone.

The lawsuit seeks to prevent such outsourcing until clients can be assured that their privacy will be protected against electronic monitoring by the National Security Agency and other government agencies.

Government officials would not say whether they are monitoring such legal communications, which could include documents about clients’ criminal, marital or financial problems.

“We have no comment for you on the hypothetical scenario you describe involving India,” said Dean Boyd, spokesman for the Justice Department’s national security division.

Law-enforcement agencies that intercept electronic communications in the United States are limited by Title III of the Omnibus Crime Control and Safe Street Act of 1968 and by the Foreign Intelligence Surveillance Act (FISA). Title III is used to gather evidence for criminal investigations. FISA is used to collect foreign intelligence information.

Both of them require court orders based on a likelihood the evidence law-enforcement agencies seek will be found through the intercepts.

“The FBI does not tap electronic communications without court orders,” said FBI spokesman Rich Kolko.

The only exception would be when the “target” of an intercept is in a foreign country and the electronic communication originates in another country, he said.

“The specific number of international calls intercepted is not a statistic that is collected,” Mr. Kolko said.

Evalueserve, a legal process outsourcing firm, estimates that billings to U.S. law firms by foreign outsourcing companies will rise to $970 million by 2015 at the current growth rate of about 60 percent per year.

Outsourcing firms earned about $119 million last year and are expected to earn $180 million this year, said Alok Aggarwal, chairman of Evalueserve. The company has about 2,300 employees, and about 2,000 of them work in New Delhi.

He could give no assurance the U.S. government does not tap into the outsourcers’ electronic communications.

“It could be a one-in-a-billion chance, but the chances are still there,” Mr. Aggarwal said. “We’d have no way of knowing what the U.S. government is doing. Governments don’t tell you what they want to do when it comes to secrecy or when it comes to national security.”

Privacy in the United States is protected by the Fourth Amendment. However, recent congressional hearings on the rights of detainees at Guantanamo Bay showed that legal rights in U.S. courts are sparse when government inquiries occur offshore.

“We have a multibillion-dollar infrastructure that is designed to intercept foreign intelligence and we have lawyers who are pushing a lot of their legal work overseas with very little analysis and very little discussion about what rights are waived when they outsource that legal work,” said Joseph Hennessey, the Bethesda attorney who filed a lawsuit this month in U.S. District Court for the District of Columbia against the U.S. government and a paralegal company in India.

Some of the Washington area’s largest law firms have outsourced legal work, including Arnold & Porter LLP and Howrey LLP. Major corporations that have outsourced legal work include United Technologies Corp., Oracle Corp. and Bayer AG.

Outsourcing firms do not represent clients in court or sign documents for them, which requires a U.S. law license.

Mr. Hennessey said he became concerned about the privacy of clients when he received a business solicitation from one of the Indian firms.

“We at Acumen have an upper edge over other [legal processing outsourcing firms] operating from India both in terms of quality, turnaround time and, of course, cost-effectiveness,” said the letter from Acumen Legal Services India Ltd.

The letter says the firm tries to ensure “data confidentiality,” but Mr. Hennessey says it is unlikely they could avoid the NSA’s ECHELON system for monitoring electronic communications.

As many as 3 billion electronic transmissions daily are filtered through the surveillance system with software that allows unrestrained keyword searches of them, Mr. Hennessy’s lawsuit says. After they are intercepted, there is no legal barrier to prevent them from being transferred to other law-enforcement agencies in the United States or among allied nations.

“Because of the pervasive nature of the seizure and search of electronic transmissions obtained through ECHELON, the United States government is necessarily engaged in the seizure and search of client secrets and client confidences,” Mr. Hennessey’s lawsuit says.

Mr. Hennessey also requested formal opinions from the Maryland State Bar Association and D.C. Bar’s legal ethics committee on whether lawyers should transmit information to overseas legal process outsourcing firms.

Neither organization has issued an opinion on the question.

The NSA monitors foreign electronic communications for counterintelligence and support of military operations.

NSA officials said they had no specific knowledge of legal process outsourcers.

“I wouldn’t have any information to provide,” NSA spokesman Patrick Bomgardner said.

Saul Jay Singer, the D.C. Bar’s legal ethics counsel, said a court ruling might be required to resolve the issue.

“It’s not an issue that’s been ruled on,” Mr. Singer said. “I think the bottom line is that this is an issue that is out there and this is an issue that has to be dealt with and will be in the future.”

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