Ever wonder what’s the legal cutting edge of document review? No, not the technology-related cutting edge, because every other day some ediscovery vendor is trying to convince the world that they have the latest and greatest piece of technology that will absolutely “revolutionize” the industry. But the cutting edge of actual law about the practice of reviewing documents. That’s all about the benjamins.
See there are some lawsuits we’ve been tracking here at ATL about whether the Fair Labor Standards Act (FLSA) should apply to contract attorneys reviewing documents at the direction of outside counsel.
On the one side you have the poor schmuck reviewers, personified in the instant case by David Lola, a North Carolina contractor. Last we heard from him, things weren’t going so great (think living in a van down by the river kind of bad). He’s arguing that his work as a contract attorney was so mechanical and rote that it shouldn’t be considered engaging in the practice of law.
On the other side is the prototypical Biglaw monolith Skadden (joined by the staffing agency Tower Legal) saying that even document review rises to the level of practicing law.
The reason there’s such a skirmish about the definition of what is or is not the practice of law is about an exemption to FLSA. If document review (or at least the review that Lola worked on) is legal work then he is not owed overtime, and he has to live with the straight $25 an hour he was paid, but if it isn’t the practice of law then FLSA protections kick in and he is owed time and a half. Yes, there is a bit of cognitive dissonance here — in this instance actually engaging in the practice of law will net him less money than if he was rotely applying coding to documents without analysis.
Lola is on the ropes here. The case was already dismissed by trial court Judge Richard Sullivan finding that the provision of legal services by a lawyer are exempt from federal overtime laws regardless of the nature of the task performed. Back in October, he took his case to the Second Circuit. The most recent development is Lola’s reply brief in his appeal, filed last week:
[The] reply brief assailed the defendants’ assertion that there was no required level of difficulty or sophistication that attorney work had to meet to qualify as the practice of law, calling that claim meritless.
“As discussed in Lola’s brief, the practice of law must entail the application of legal training and the exercise of legal judgment and discretion,” the brief said. “The cases upon which Skadden and Tower rely for this proposition actually support Lola’s position, as they either involve individuals who, unlike Lola, rendered legal advice and applied their legal knowledge or conclude that certain activities may or may not constitute the practice of law, depending on the particular circumstances.”
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It’s like having a junior associate who’s never off the clock.
I am conflicted about this case. On the one hand, sure we’d all like to get paid more money for what we do, and if OT were standard on doc review projects that’d be pretty sweet (or every project would be capped at 40 hours). But if reviewing documents isn’t practicing law — why have a lawyer do it? Why not have a cheaper non-licensed monkey do the work? It’s bad enough we have to worry about the machines taking our jobs it’d be a disaster if we’re also being undercut by non-attorneys.
Maybe the Second Circuit will come up with a definition that splits the baby, where some projects are so straightforward they aren’t considered the practice of law, but other, thornier projects are legal work. Though that outcome is still cold comfort, since it only seems to provide a financial incentive for attorneys to make simple stuff unnecessarily complicated to give it the veneer of legal work.
Guess we’ll just have to wait on the Second Circuit to see if we are real lawyers.
Alex Rich is a T14 grad and Biglaw refugee who has worked as a contract attorney for the last 7 years… and counting. If you have a story about the underbelly of the legal world known as contract work, email Alex at [email protected] and be sure to follow Alex on Twitter @AlexRichEsq