Contract Attorneys, Labor / Employment

Contract Attorney Wins Battle. . . Status of War Unclear

As mentioned in yesterday’s Morning Docket, William Henig’s case against Quinn Emanuel has survived a Motion to Dismiss. For those of you that haven’t been following this case closely, Henig is the contract attorney-cum-plaintiff suing Quinn for overtime under the Fair Labor Standards Act and New York State law claiming the document review work he was hired to perform does not amount to the practice of law.

While Staci is correct — we humble peasants are rejoicing — I wouldn’t start mentally cashing those back OT checks just yet…

While Judge Ronnie Abrams ruled in favor of the “little people” on the Motion to Dismiss, it wasn’t a full victory. Discovery in the matter will be limited, which may leave the putative class in the cold.

I think it’s best for the parties to hold off on full discovery and motions for collective and class certification.  Discovery at this stage shall be limited to the issue of whether Henig was practicing law.

The Court also isolated the issues she believes will be determinative on the question of whether the “mindless” document review work that helps make the minimum payment on many a student loan is actually the practice of law.

[T]he Court distills several factors that bear on the definition [of whether Henig was engaged in the practice of law], whether the individual at issue renders legal advice to a particular client; whether he holds himself out as an attorney; and whether his duties require him to draw on legal knowledge and judgment. (Citations omitted.)

This case has always created an interesting dichotomy between pride and money. While it may not seem like it from the outside, there are many contract attorneys who take pride in their work. It may be the lowest rung of the legal profession, but it is still a profession — we have the debt to prove it. So, maybe it does sting a little to think that a court may be deciding that what we do isn’t using our legal knowledge and judgment (this also may help explain why there hasn’t been a ton of OT litigation by a contract attorney). On the other hand — money. Yup, money probably wins, especially when you think about the huge markups that law firms frequently pass onto clients for the work we do and we are lucky to get $30/hour.

Another reason to not be doing cartwheels over this decision is the lengths to which Judge Abrams goes to remind the parties that these issues may be easily resolved on summary judgment, after the limited discovery. I’m not mind reader — hell, I might not even be practicing law, but it seems to me the judge is leaning pro-defendant on quite a few of these issues.

But these allegations leave unanswered a number of determinative questions.  Did Quinn Emanuel specifically request attorneys for the project, and did the firm communicate in some manner to its clients that attorneys, as opposed to paralegals, would be performing this task?  One imagines so but the amended complaint does not say.  Was Henig held out, and billed out, as an attorney?  Presumably, but one cannot be sure.  Did defendants require him to be a member of the New York or other Bar to participate in the project?  Most likely, but nowhere does the amended complaint make “unequivocally” clear the answer to this and the other questions.

 The Court goes on to add:

Defendants argue that they “hire contract attorneys to perform work that licensed attorneys do” because they count on their judgment, their skill, and the fact that they’re bound by the ethical rules.  That may well be, and may ultimately help lead the Court to conclude that Henig was indeed practicing law, but the Court cannot resolve these questions by resort to “common sense” or “judicial experience” as defendants urge.
Similarly, the Court cannot conclude at this stage that Henig did or was expected to draw on his legal knowledge, judgment or training to perform his responsibilities.  Indeed, the amended complaint alleges just the opposite.  Paragraph 34 of the amended complaint states that “plaintiff was not required to, in fact, could not utilize any legal knowledge and/or judgment in performing his job duties for defendants.” Such disputed matters cannot be definitively determined as a matter of law on this motion to dismiss.

Ut-oh, the fact the judge sounds inclined to decide against Henig if the record ends up showing that he was “bound by ethical rules” or exercised his legal judgment does not sound good. Contractors are, in fact, “bound by ethical rules” and the whole crux of the job is recognizing legal advice for the purposes of privilege and making calls on the most relevant (or “hot”) documents from a legal perspective. If these issues are a hang up for Judge Abrams, this does not inspire hope for an industry-wide change.

If you need me I’ll be doing my flat-rate coding in the corner.

The transcript is reproduced on the next page if you feel like perusing it….

(hidden for your protection)

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