@Gordon: Non-lawyers are already doing it. A recent foreign-language document review I know about included several reviewers with JDs who weren’t admitted in any U. S. jurisdiction, one reviewer with an undergraduate degree in law from a European university, and one reviewer who had a paralegal’s certificate but had never even worked as a paralegal. (The non-lawyers were paid $35/hr plus overtime. The lawyers got $50/hr and no overtime. But everybody was doing exactly the same work, and everybody had to work a 70-hour week.)

Obviously, employers and law firms aren’t concerned with professional standards, or even with avoiding the unauthorized practice of law, as long as they get the dough. I’d love to know what the client was billed for these non-lawyers’ work, and whether or not it was informed that non-lawyers were doing the work. (Of course, I’m even more interested in knowing what clients pay for temp /lawyers’/ work.)

The only way we’re going to get professional standards and compliance with ethics rules (not to mention reasonable compensation and working conditions) is if we organize and demand them. Anybody interested in that should write me (using a false name and an untraceable email account for now) at charliedeltaesq at gmail.com.

@Matt: Document review, as it’s currently conducted, isn’t the practice of law. Most of it’s just spotting key words and names. There’s no way you can exercise independent professional judgment when you’re forced to meet a 600-document quota every day. Properly organized document review would involve independent professional judgment on matters including relevance, privilege, and other legal matters. Reviewers then might not be entitled to overtime pay, but with hundreds or thousands of lawyers unemployed, there’s no reason for anybody to be working overtime anyway. Overtime pay exists to discourage employers from forcing employees to work excessive hours. If firms and agencies staffed their projects properly, planned their projects intelligently, and paid temps a decent wage, overtime wouldn’t be an issue.

* If all lawyers do is routine, assembly-line document review, as that work is currently arranged, they aren’t “engaged in the practice of law”. But if document review is only part of their work, it’s just as much “the practice of law” as any partner’s routine and clerical work. I recommend document reviewers find ways to mix in free-lance research, writing, court appearances, etc., with their document-review work. There’s lots of small law offices that can use that kind of help now and then.

* A non-disclosure agreement doesn’t satisfy the ethics rules regarding conflict of interests for attorneys, or any attorney could avoid conflicts by signing a piece of paper. This is just one more example of firms and agencies’ imposing legal ethics rules on temps when it suits them, while ignoring the rules on fee-splitting, unauthorized practice of law, non-lawyer supervision of lawyers, independent professional judgment, etc. The recent practice of making temps reveal every law firm, client, or litigant they’ve ever encountered in their working lives, rather than giving them a conflict list, just makes it even more burdensome for temps.

The only way we’re going to clean up this industry is by organizing in our own interests. The employers are organized, they’ve pooled their economic power, and that gives them the ability to dictate terms to us. Unless we do the same, our pay will keep falling, our hours will keep increasing, the length of projects will keep decreasing, and our working conditions will keep getting worse. Law suits are not enough.

If you want to discuss possibilities for organizing, write charliedeltaesq at gmail.com. Don’t write from work, don’t use your employer’s computer or BlackBerry, don’t give me your real name, and don’t use your regular email address.

This is a great post, and it raises some interesting legal issues.
As a longtime (5+ years) doc reviewer in the NYC market, my assessment is that we’re akin to factory workers. We need a decent understanding of legal concepts and the case at hand, but what’s primarily required is stamina, discipline, and attention to detail. We need to make decisions quickly with a minimal error rate, akin to someone installing a windshield – I do not think our work is “varied in character.”

This story was also reported on the NYT city room blog earlier this week, and it generated some great comments. It’s worth checking out their story, but I’m not adept at links – I quickly found it using a Google search – if the Posse List editors could post the link that would be great.

One of the commentators had a similar concern to Gordon’s, that wage/hour violation lawsuits would incentivize clients to have more work done in India, where (presumably) there are no such laws, or at least they aren’t enforced, or the wage is so low that the employer is happy to pay OT.

Editors, please let us know what people are saying about NYS opinion re document review work as practice of law. I feel that we’re caught in a difficult spot: we maintain our licensure as attorneys, yet agencies/law firms determine seemingly at random whether they require admitted or non-admitted JDs. On a related issue, I find it ridiculous that we are conflicted out of jobs – shouldn’t non-disclosure agreements suffice?