I think everybody who has ever sat in a windowless conference room while staring at a screen and clicking through millions of documents has thought to themselves: “
I wish I were dead.” “ Somebody, please help me, it hurts.” “ Zihuatanejo.” “I am not doing legal work.”
Whether you find yourself contracting after three years of law school or you were fired from a real legal job and are now contracting in lieu of moving back home with your parents, you don’t actually need a law degree to know that trained chimpanzees could be doing contract attorney work. In fact, the only reason they don’t use trained chimpanzees is that it’s much, much cheaper to train human beings to do it. And after a while, the chimps might revolt and kill their document room overseer while the humans will sit there in docile and vain hopes that one day they might get a real lawyer job.
Which brings us to the subject of today’s lawsuit challenging the Biglaw system of hiring contract attorneys to do menial, low-level, thoughtless work, and then not paying them overtime. Attorney Willian Henig has sued Quinn Emanuel alleging that contract attorneys should not be exempt from the Fair Labor Standards Act rules about overtime pay.
We’ve seen suits like this before, but this one is coming at one of the biggest and most well-known firms in all of Biglaw….
In a lawsuit filed today, a former Quinn Emanuel contract attorney is bringing a class action suit against Quinn Emanuel on behalf of all contract attorneys in New York. Here’s the PDF. The lawsuit alleges that Henig worked more than 40 hours a week, didn’t get overtime, and deserves it. Henig is suing Quinn, and the temp agency that got him the job, Providus.
The suit alleges a violation of the Fair Labor Standards Act. It says that people should get overtime, unless they are exempt, and the exemptions cover pretty much everybody who has to execute a modicum of true intellectual thought in the course of performing their duties, and has minimal control over their schedule.
The key then is whether or not contract attorneys execute any thought or control, OR if they are just mindless document monkeys. So… now comes the fun part of this post where a contract attorney argues that he was a mindless document monkey:
Man, I was hoping for more self-deprecating descriptions of the “extremely routine” nature of contract work. Like: “One day, I had a minor stroke and couldn’t control the motor functions on my left side and was bleeding from my right ear. Luckily, I’m right handed and was able to finish my document stack for that day.” Maybe we’ll get some juicy details at trial.
If it goes to trial. Which it probably won’t. Because we’ve been here before. We’ve written about this before. New York contract attorneys have bitched for years, maybe decades, that they don’t get paid overtime. Paralegals do, secretaries do, but contract attorneys are treated like “lawyers” whose advice and counsel has been reduced to “this email did not have any of the eighteen magic words on this list, so I clicked ‘non-responsive.’” (It’s different in California, right? In Cali, contract attorneys get free Botox injections if they have to work more than 40 hours, right?)
I spoke with Maimon Kirschenbaum, the attorney for William Henig. Kirschenbaum has tried before to get fair pay for contract attorneys. But this is the first time he’s gone after a Biglaw firm. Kirschenbaum told me:
I find it disappointing that large, profitable law firms that should know better really give the contract attorneys the short end of the broomstick. The least they could do is pay them overtime as required by the law.
I also reached out to Quinn Emanuel, but they have not yet responded with a comment about the lawsuit.
However, in fairness to Quinn, there are probably hundreds of other firms in New York City that pay contract attorneys exactly $0 in overtime. It’s pretty standard in New York. It’s not like Quinn is some kind of contract attorney sweatshop. Using low cost contract attorney work is just how big, complex litigation gets done these days.
Kirschenbaum notes that contract attorneys are reluctant to anger these market employers with lawsuits:
I have been arguing for years that contract attorneys are entitled to overtime pay under the FLSA and New York law. However, I have found that contract attorneys tend to be reluctant to file such suits out of fear of being blackballed in the industry.
I’ll add that contract attorneys are also reluctant to sue because they want to feel (and put on their résumé) that they worked as “real” attorneys. You might find people who are lifelong legal secretaries, or career paralegals. But nobody with a J.D. wants to be a career contract attorney. And telling people that they are “attorneys” building towards a better job is at least a line that works on their parents and their non-lawyer friends. As much as they want extra money, how many contract attorneys would really sign up for this class and eagerly admit that they do menial work that is not at all like what practicing lawyers do for a living?
Of course, speaking of what practicing lawyers do for a living, have you checked in on the case load of your average Biglaw junior associate? What a mind-numbing intellectual swamp that’s all about.
I asked Kirschenbaum about that directly, and he said that, the expectation at least, is that junior associates have a number of cases, only some of which are document intensive. And I suppose that’s true. Also, generally, junior associates have much more control over their own schedules. When a partner says to you at 5:00 p.m. that you need something on his desk by 9:00 a.m., you’re still free to decide if you are going to sleep under your desk, slumped over in your chair, or if you are going take some… performance enhancing nasal relief and crash two days from now. THE CHOICE IS YOURS.
Look, we all know that contract attorneys aren’t doing real legal work. They’re there because predictive coding hasn’t advanced to the point of making them obsolete. But that doesn’t mean that they are going to get overtime. The decision to mark a document responsive is still an executive function. A computer can’t do it, not yet, not itself.
And even in the glorious world where Henig prevails and New York law firms are forced to pay overtime to contract attorneys, then those temp workers are going to really find out what it’s like to be a “real” attorney. “Who said you can leave? How does 40 hours of overtime this week sound?”