Second Circuit Sympathetic To Contract Attorneys?

Is it possible the 2d Circuit will be on the side of doc reviewers?

onJune 1, 2015 at 1:50 PMJune 1, 2015 at 8:14 PM

There aren’t too many cases that threaten to change the legal landscape, so when one is active, it gets a lot of attention ’round these parts. Such is the case of David Lola (familiar readers can skip down a graph while I catch the rest of the group up). He is a former document review attorney suing the staffing agency (Tower Legal) and Biglaw firm (Skadden Arps) he worked at for overtime payments. Legal work is generally excluded from mandatory OT payments by existing labor laws, but Lola is claiming the work he performed was so rote that it does not rise to the level of practicing law. The Southern District of New York threw out his case, but the Second Circuit has it on appeal. The oral argument was on Friday.

Lola supporters are cautiously optimistic, and the Wall Street Journal reports that the Second Circuit may be showing their hand.

Mr. Lola appealed, and on Friday, a three-judge panel in the Second U.S. Circuit Court of Appeals heard arguments from both sides. The appellate panel seemed sympathetic to Mr. Lola’s case Friday.

If Mr. Lola’s work truly was as basic as he said it was, asked Judge Raymond Lohier Jr., and could nearly be replaced by a computer, “How in the world is that the practice of law?”

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I’m not a Second Circuit prognosticator, but it seems like Lola is on track for a Pyrrhic victory — if the Second Circuit thinks Lola is eligible for OT payments because his work could be done by a computer, the only ones happy about that are the robot overlords, well, and the pennypinchers.

Skadden’s attorney isn’t content to go quietly into that good night, and the question of whether the document review will qualify as legal work is destined for more nuance.

The work was more complicated than that, said Brian Gershengorn of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., who argued for Skadden and Tower. “Lola can’t take away the fact that he’s trained as a licensed attorney,” Mr. Gershengorn said.

The judges also pressed Skadden’s counsel on why there shouldn’t be a federal standard for what qualifies as the practice of law, as Mr. Lola suggests.

Mr. Lola’s counsel, Mr. Kirschenbaum, told the court that he thinks the definition of law practice should include “some engagement of legal judgment or application of legal knowledge,” which he says his client didn’t need for his $25-an-hour gig.

Speaking after the arguments, Mr. Kirschenbaum said a ruling in favor of Mr. Lola would “open the gates for people to get their wages.”

If Lola wins the “gates” will definitely be open for something… sure in the short term contract attorneys doing document review get a windfall but it may come at the expense of their long term prospects. When document review is not considered legal work then there may be little reason to have lawyers do said work. If paralegals or others without the crushing debt of law school in their financial portfolio are able to perform document review tasks (since it isn’t “legal work”) then supply and demand will crush wages, even when OT is factored in.