General counsel hoping to boost their in-house capabilities by using lower-cost legal work from outside the United States can minimize risk by working with third-party firms and limiting what new-hires can do outside the organization’s IT infrastructure, LegalEase Solutions Co-CEO Tariq Hafeez says. 

India has become one of the top places companies tap for remote legal work because English proficiency is widespread, the country is steeped in the same legal tradition as the U.S. and it has robust data privacy and security laws, Hafeez told Legal Dive. 

There are risks, though. If a remote attorney is believed to have breached security or privacy protections, or if their conduct otherwise breaches their contractual obligations, organizations can face hurdles enforcing their rights.  

But there’s a well-tested road map for general counsel to reduce risk, he said.

Third-party firm

First, general counsel want to work with a staffing firm or alternative legal services provider to connect them with remote legal help. Whether it’s for permanent hires or temporary contractors, the third-party firm can take the first layer of risk if something goes wrong.

“Your contractual right is with this entity,” Hafeez said. “If there is a breach, you can actually go after that company as opposed to having to try to track down the individual.”

That can be the case even if you’re working with a staffing company to find you someone you hire as an employee. 

“The contract you have with the staffing company is going to be important,” he said. “What is their level of responsibility for an attorney they place with you? Do those responsibilities end at the time the staffing company finds you that employee or do they continue? That would be something the GC would want to make sure that, if you’re using a staffing company to find somebody, even if you end up employing them directly after some period, there’s some protection that the staffing company has done a good job vetting this person out and can stand by their placement.”

Protected system

Second, GCs want to ensure that the remote attorney, whether a permanent hire or a temporary contractor, only onboards through the organization's IT infrastructure. 

“Oftentimes it’s about using VPNs for them to log into a central server and central workstation where you can actually limit the employee’s ability to take documents off the server or download things off the server,” he said, referring to virtual private networks. “So, you definitely want to have them work within your IT infrastructure. That’s a must.” 

For permanent hires, a best practice is to supply to them the hardware they use. That means shipping them a laptop so the security is built in. “It would be worth your money to get them their own hardware,” he said.

For contractors, providing them the hardware is less important if they can be set up to work on their project without having to access the organization’s broader system.

“You can set up a separate OneDrive or SharePoint,” he said. “So, you can actually invest less in giving them access to the technology infrastructure.”

Remote monitoring

Third, to ensure there’s adequate monitoring despite what can be big time differences, GCs want to structure their working hours so there’s some overlap with the U.S.-based legal team. If the attorney is in India, where there’s at least a 10-hour time difference depending on where in the U.S. the main operations are based, it’s best that their day have an overlap of at least two or three hours. 

“You can arrange for them to work hybrid hours,” he said. “It’s difficult to find highly trained professionals in India or another country with significant time zone differences to work completely U.S. hours. Although there are call centers and other types of jobs where you do have folks working U.S. hours, when it comes to professionals, it’s difficult to get them to do that, so what we found really works well is to have that 2-3 hour overlap. That allows for collaboration, training and also accountability.”

Apart from that, GCs want to have them use a project management tool where they can do time tracking of their tasks and where there’s visibility over the tasks they’re doing and the stage they’re at at completing them. “So, using project management software is important,” he said. 

Legal system confidence

Fourth, Even with technology protections and the liability layer a third-party firm can provide, there could be times when GCs have to go after a remote attorney if there’s a data breach or other problem. Given that risk, GCs should work with remote attorneys only in jurisdictions in which they have confidence in the legal system or have a subsidiary presence that can manage the matter. In the absence of either of those, the work they give the remote attorney shouldn’t involve the organization’s most important data. 

“You might not want to send things that are highly sensitive from a data privacy standpoint if you’re not as comfortable with the jurisdiction or the laws governing that jurisdiction,” he said.

Even if the jurisdiction has a strong legal system, depending on the matter being pursued, GCs could still be relying on the foreign system to interpret U.S. law, which can increase uncertainty.

“The contract may be governed by U.S. law, or Michigan or Delaware law, but a foreign court would have to actually interpret that and act accordingly,” he said.

If the organization has a subsidiary in the jurisdiction, it could make sense to have an attorney in the subsidiary manage the matter. 

“The local subsidiary would be able to avail themselves of the local court or local legal process because they have their feet on the ground there,” he said. “Or it might be a multipronged thing where the parent company in the U.S. files for breach of contract in the U.S. but then the local subsidiary is also able to file a separate claim to enforce there.”

Bottom line, these and other risks are manageable if general counsel onboard remote attorneys within the organization’s IT infrastructure, work with third-party firms to find attorneys and help defray the risk and put in place robust monitoring, Hafeez said.  

These tips apply to GCs using U.S.-based remote attorneys as well, he said.