9 October 2014 – In a case that helps clarify what discovery-related activities constitute the practice of law, a federal judge in Manhattan has told a group of contract attorneys performing document review for a major law firm they are not entitled to overtime pay because they were engaged in legal work.
Summoning professional and ethical codes of North Carolina, where the attorneys worked, Judge Richard Sullivan determined that document review rises to the level of legal practice – irrespective of its complexity or the legal credentials of those performing it. The application of legal judgment, Judge Sullivan said, is not a prerequisite for an activity to be deemed “practice of law.”
The September 16 ruling comes in a collective action brought by David Lola against Skadden, Arps, Slate, Meagher and Flom, and Tower Legal Staffing under the Fair Labor Standards Act. In dismissing the suit, Judge Sullivan could precipitate the failure of similar challenges by other groups of contract attorneys suing for overtime. Document review, the menial form that requires only tagging materials for responsiveness if they include certain predetermined keywords, is not legal work, they contend.
Judge Sullivan and the state-level authorities he cites disagree.
The opinion comes at a time when the administrative support services, project management and consulting, and legitimate legal work that together make up the bulk of e-discovery is quickly converging. Confusion over where exactly clerical activities end and the practice of law begins has given rise to thorny questions about the persons authorized (and not authorized) to practice law, how they are to be supervised, the titles they can hold and, now, the wages they are to be paid.
The line between administrative and legal, it appears, is drawn at document review – even if that task, at its most simple, is more akin to document Whac-a-Mole.
For the full story on the ACEDS website click here.
Gregory P. Bufithis is the Founder & Chairman of The Posse List. He has over 25 years of experience in intellectual property law and digital media in the U.S. and Europe.