Two recent Fair Labor Standards Act (FLSA) cases in the Second Circuit addressing whether contract attorneys are engaging in the “practice of law” when they perform document review services should be giving the legal community plenty of food for thought.
Whether contract attorneys are practicing law or making rote, or even just human as opposed to legal, decisions as they execute their document review duties is important, because that distinction may determine whether they are entitled to overtime pay. (The FLSA exempts from overtime requirements any “employee employed in a bona fide professional capacity,” including “any employee who is the holder of a valid license…permitting the practice of law…and is actually engaged in the practice thereof…”.)
In a suit brought in North Carolina by David Lola against Skadden, Arps, Slate, Meagher & Flom and Tower Legal Staffing, Lola alleged that his entire responsibility consisted of looking at documents to see what search terms may have appeared in them, marking those documents into predetermined categories, and at times redacting. Sound like the practice of law?
Lola thought not, and although the district court dismissed his case, the Court of Appeals for the Second Circuit reversed, noting that “inherent in the definition of ‘practice of law’…is the exercise of at least a modicum of independent legal judgment,” of which Lola’s document review services, at least as described in the complaint, could possibly be deemed devoid. The case ultimately settled, leaving unresolved Lola’s exemption status.
A different suit with similar claims brought different results. William Henig filed suit against Quinn Emanuel Urquhart & Sullivan and Providus New York, claiming he was not required to exercise legal judgment in document review and thus was not practicing law. In this case, a Southern District Judge found that Henig’s work, under less constraint than Lola’s, did require at least some legal judgment. The case was dismissed on summary judgment.
Both the Lola and Henig matters arguably raise a number of legal, jurisdictional, and compensation issues about contract attorneys and document review worthy of serious discussion, especially if the work undertaken was as described. Obviously, not all document review work is created equal, nor are perceptions about what constitutes the exercise of legal judgment or the practice of law (the latter of which, by the way, is state-defined.) Like the matters that require them, document reviews vary in complexity and may call for more or less skill or judgment, legal or just plain human, depending on the case. Employers in these matters no doubt feel more secure with attorneys identifying the type of content that is relevant, making privilege determinations, or knowing what content might require redaction.
That being said, if any of the work that Lola and Henig did was as rote as they described, an obvious question cries out for consideration: Why was such work required of them at all?
Lola said that for fifteen months, part of his responsibility “consisted of looking at documents to see what search terms, if any, appeared in the documents” and “marking those documents into the categories predetermined by Defendants.” Henig contended that he was told “to review documents to see whether they contained any of the terms or names included in the various lists and charts” he was given, in which case he was to mark them as responsive. The judge in the Lola suit when vacating the original judgment concluded that “an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine (italics added) cannot be said to engage in the practice of law.”
Indeed. Why, then, wasn’t this work performed by machine?
In this day and age of information retrieval and software ascendancy—when headlines shout about Big Data, algorithms, predictive analytics and technology-assisted review (TAR), when the bench has repeatedly permitted and even encouraged the producing party’s choice to use technology to address ESI in discovery—shouldn’t we scratch our heads and ask why software tools weren’t used to accomplish at least some of the review goals described in these cases?
If any such tools were used in either of the matters, they apparently didn’t go as far as they could have or Lola and Henig wouldn’t have had to do a good portion of the work they described. It’s inconceivable that skilled attorneys be used for months on end to identify the presence of key terms or even key concepts in such large document populations, tasks that can now be easily accomplished using expert-driven software. Contract attorneys could then spend their time more productively, perhaps executing more complex search scenarios or otherwise engaging in a more technologically-oriented workflow that would expedite the review process, reduce costs, and enable them to apply their legal skills and judgment to the matter in other ways.
The Lola and Henig cases reveal just another ancillary consequence of the legal profession’s reluctance to fully embrace technology. This will have to change; if not by choice, by necessity. Technology-assisted review tools executed with the appropriate expertise are an available, cost-effective and necessary part of today’s document review process, years ago proclaimed able to be more effective and efficient than exhaustive human manual review and encouraged by the court today. But skilled and knowledgeable humans—lawyers or otherwise—are certainly required as well, and in the legal arena this will no doubt be the case for years to come.
Perhaps what should be embraced here is the opportunity for those choosing to perform legal services, whether document review or other work, to add a layer of on-point technological knowledge to their legal repetoire and elevate the potential for such tools to be understood and used more widely. (It wouldn’t hurt for law schools to add legal technologies to their curricula, either.)
Who knows? With model rules changes and ethics rulings increasingly calling for lawyers to up their technological competence, this may be a golden opportunity for contract attorneys to hop aboard a new and better-provisioned gravy train.