15 November 2011 – As we have written before (our most recent post is here) the most common complaints from the contract attorney world is that the work is mind-numbing and monotonous, affording none of the intellectual stimulation that a lawyer should expect.  There is often little or no quality control.  What supervision reviewers get usually has more to do with the schoolroom than with the law office, and generally focuses on production levels, tardiness, talking, number and length of breaks, etc.  Under those demoralizing conditions, mistakes are inevitable, and careless, unprofessional work is common. The result is the infamous McDermott case which has become a prime example of the myriad ethical problems in modern, assembly-line document review.   

Expanding on this theme, but with much more detail and with positive suggestions about what can be done and should be done, is Lawrence Chapin, an attorney with forty years experience in the law who has been working, for the last eighteen months, as a contract review lawyer on projects in New York City and Richmond, Virginia.  He is also a recent graduate of the e-Discovery Team Training program run by Ralph Losey.

In a special post on Ralph’s blog, Larry emphasizes that contract reviewers should become/can become more valuable to a project when they are wisely employed in a project.  Their talents and potential contributions to a project are often wasted.  

We all know that technology is driving much of the drudgery in document review.  But technology has become so important to the industry.  We recently attended the two premier corporate counsel events of the year, the IQPC Corporate Counsel Exchange in Amsterdam  and the Association of Corporate Counsel annual meeting in Denver which we will detail in two lengthy posts in the next two weeks.   Between the two events we had the opportuntity to chat with 35+ corporate counsel (we’ll include some video interviews in our upcoming posts) and discussed everything from the new role of corporate counsel, the overall need to reduce corporate legal spend, third-party funding of litigation, privacy issues and social media, and … most importantly … the technology they have brought in-house to control e-discovery cost and the technology their outside attorneys and consultants use overall for e-discovery.   One of the overriding themes from both events was:  “yes, we need lawyers (both in-house and temporary) but lawyers who are data geeks!!”  And by that they meant attorneys who can handle the technical aspects of modern legal data analysis, who have some computer science background, statistics and math skills, who have or can learn the skills for legal data visualization, imaginative ways to turn legal data into actionable intelligence. 

So could technology help to redeem the contract attorney industry?  Larry seems to think so.  He makes numerous excellent points and we urge you to read his full analysis.  For the full post click here.

The Catalyst CR Certified Reviewers program (CRCR) certification program for Catalyst CR which we announced yesterday (see details immediately below) has added an additional session:

                        OCT 6: 1:30 pm – 4:30 pm

You can sign up for this additional session by clicking here.  The first 3 sessions we announced yesterday filled in 2 hours so Catalyst decided to add another session.  Please register as soon as possible because we expect this one to fill up quickly, too.

Now, in answer to your many, many emails:

1. The sessions above are live sessions being conducted by Catalyst trainers. These are not webcasts/webinars.

2. Catalyst will be setting up webcasts/webinars in the future for the same certification program. We will inform you when they are set-up.

3. However, Catalyst will be rolling out “live” sessions in Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Philadelphia, San Francisco and several other cities. We will provide details on these programs in the future.

4. Also, we will be rolling out certification programs for other document review software such as Attenex, Clearwell, iConnect, Relativity, etc. We will provide details on these programs in the future. You can appreciate that the logistics of this enterprise are daunting and we are working diligently in providing this service.

Lastly, the second phase of this effort will include:

1. Webcasts and webinars from vendors such as Orange Legal Technologies so you can understand how the whole process of analytics, processing and review work together. Too many contract attorneys and paralegals enter e-discovery in a vacuum with no training or understanding how all the moving parts fit together.

2. Live seminars and webcasts and webinars from law firms in such areas as the FCPA, principles of attorney-client privilege, the merger process, etc. These are all subjects we encounter on projects yet we have little training on any of these areas.

3. A new page on the Posse List called “Briefing Notes” in which we provide background articles and comments on projects you are probably reviewing, or about to review. We start tomorrow with “Anatomy of a Merger: the Kraft/Cadbury deal”, a look at a deal much in the press; they are about to make a deal, it will be a whopper of an antitrust review and it will be coming (eventually) to a law firm near you. Next week we take a look at a project that many of you in DC are on: the Delta/USAir slot trade deal.

So stay tuned: we have much to tell.

There are a large number of law students who are members of The Posse List, as well non-law students who follow our articles and have written to us about attending law school. So we thought we’d post an item from The Adjunct Law Prof Blog which has linked to a post by Hannah Watson of Onlinecourses.org  entitled ”100 Blog Posts About Going To Law School” which you can access here.   The posts are arranged by groupstopics such as getting in, why do you want to go to law school, reasons to avoid law school, reasons to still go, what to do when you get there, etc.

And they cover the mega-issues:  law student loan debt, dealing with debt, loan forgiveness, the lousy job market, etc.  Several posts emphasize “think about the debt and job prospects before you do this”.

Note: there are lots of links and sublinks and they discuss the pro and con — the good, the bad, and the ugly.  But they avoid links or discussion to such sites as Lawyers Against The Law School Scam which chronicle  inflated job and salary statistics spread in the media by law schools, and the surplus of lawyers created by those reports.

Of interest to many Posse List members are the links to job search engines, alternative opportunities wih law degrees, social networking sites for lawyers, blogging to create a presence, etc.   We have posted similar links on our companion site The Posse Ranch and in our Trends series (click here).

The practice of law firms marking up the cost of contract lawyers has been around for ages.  See some of our previous posts about the subject:  a great analysis by Carolyn Elefant by clicking here and further analysis by clicking here. 

This week there was an article rocketing around the internet which was written by Cardozo Law Professor Lester Brickman and published in this week’s Forbes magazine.  We posted it on The Posse List Twitter account (we post items of interest to the Posse List community several times a day and you can see our feed in the right-hand column or click here).  

You can access the Brickman article by clicking here.   He summarizes the litigation process and then the use of contract attorneys in the e-discovery process and states:

“As part of this process, each document is coded as to document type, author, recipients, date, subject and other bibliographical data and put into a searchable data base. The coding is largely done electronically by data processors or paralegals. Documents that exist in paper form are converted to electronic form so that they can be electronically searched as well using “optical character recognition.” In addition to this objective coding, the documents are also searched to determine relevancy, whether they are protected by the attorney-client privilege or whether they involve sensitive business information that may call for a protective order to maintain some degree of confidentially. Initially, this subjective search is usually performed by contract lawyers working either for the vendor or the law firm. Law firm associates then do additional review as required.”

He then goes on to state:

“Though contract lawyers are paid about $35 to $40 an hour, plaintiffs’ firms “bill” this time to the class at $300 an hour or more, sometimes without disclosing that work was not done by the firm’s lawyers. In addition, class action firms are typically permitted to add a multiplier to the product of their time and hourly rates which may raise the hourly charge to $450 to $1,000 an hour. Consider this class action math. One contract lawyer working for 30 hours a week for 45 weeks per year can generate a profit for the class action law firm of about $1 million. Multiply that by hundreds of contract lawyers, and soon you are talking about real money.”

He (pretty much) gets the numbers/analysis right.  But a few points:

1.  The $35 or $40 an hour is different from what the law firms pay for them.   On average for most large projects where firms use staffing agencies, the mark up the cost of contract attorneys used to be close to double the amount that the attorney is paid ($55+) but has dropped to $45+ and sqeezed more on other projects — the exception being foreign language projects.

2.  The hourly rate for barred attorneys has actually dropped, on average, to $30-32 (and lower) in most of the major doc review centers of DC,  NYC and Philadelphia, and $22-25 in doc review centers such as Los Angeles/San Francisco, Ohio and North Carolina.

3.   More and more reviews are being done by paralegals and non-barred JDs at a much lower rate especially in jurisdictions that are less restrictive about the bar requirement (such as DC) and who can do doc review and this partially explains why the large doc reviews (such as several subprime litigations and other large litigations) are outside the normal DC/NYC centers. 

For further analysis of the Brickman article we turn (once again) to Carolyn Elefant who has further comments on Legal Blog Watch which you can access here.

Many Posse List members who want to go solo or freelance have asked us about bankruptcy practice.  There are a good many of you who have worked on some of the major bankruptcy document reviews in the past few years (Federal-Mogul, United Airlines, Calpine, Enron, tec.) and will be well-prepared for the bankruptcy document reviews rolling out.  Many of you have acquired a good working knowledge of Chapter 11 bankruptcy procedures.

But for the many of you who asked about doing solo/freelance consumer bankruptcy work you need to very well-grounded.  As a recent Texas Lawyer article stated “if the practice of law is full of potholes, then the practice of bankruptcy is full of punji pits”.    The article has some good warnings.  The intricacies of bankruptcy law are mind-numbing (two us on The Posse List staff are ex-bankruptcy attorneys) and we agree:  miss one of the legion of deadlines, and the client loses valuable rights. File a petition without the debtor going through the required pre-petition credit counseling, and the judge will dismiss the case.  Fail to timely object to a debtor’s Chapter 13 plan that does not provide adequately for the treatment of a vehicle loan under 11 U.S.C. §1325(a)(9), and the creditor may lose thousands of dollars that otherwise would have been paid in the plan.  Etc., etc.

The U.S. Bankruptcy Code is not user friendly, and it does not lend itself to figuring out its intricacies alone.  Even with help from experienced practitioners and diligent self-study, learning to practice bankruptcy law can be an intellectually humbling experience.

We do not suggest you take a series of one CLE after another.  We strongly suggest you start with an excellent course on consumer bankruptcy at Sole Practice University which is taught by Jay Fleischman (click here).  He is very popular teacher at SPU and we have found that many students have enrolled at SPU specifically for his course.  What’s good about SPU is the collateral benefits of all the other courses related to creating and marketing your practice plus the great community that’s going on, too.   But check out the site yourself and do the numbers.  At less than $50 per month its value is unsurpassed. You can find sign-up information by clicking here.

And for some very good background material (both consumer and bankruptcy law for contract attorneys, freelancers, etc.) try these websites and blogs.  We’ll add to the list as we find more:

American Bankruptcy Institute

Bankruptcy Law Network

Bankruptcy and Restructuring

Federal Courts Offer Training on Bankruptcy Basics           

Learning bankruptcy 

Nolo’s Foreclosure and Bankruptcy Blog

SEC: How Chapter 11 works

The Bankruptcy Blog

The Bankruptcy Lawyers Blog

Links to various bankruptcy blogs

And with the announcement that Google has created a Twitter account (actually, several) there is some serious speculation that Google just might be looking to acquire the microblogging platform.  Access the PC World article here.

As Advertising Age put it in a recent article “Social media, at the end of the day, is about reinventing communication … If you really peel the onion on what’s happening across blogs, Twitter and other online communities, brands are setting up de facto listening labs that rewrite the rules of gathering and managing feedback. We’re getting more ideas faster. The funnel is broadening. The filters are sharper, more immediate and grounded in deeper levels of intimacy with the product or proposition”.   Full article here.

And lawyers of all backgrounds are all over it and in it:  they are using it, and they are also inmeshed in all the legal issues on the rise from its use.  Posse List members are using it constantly to network and find jobs, and Posse List members who have decided to strike out on their own tell us it is invaluable for building their practices.

For just a tiny, tiny slice of what’s out there for lawyers:

Kevin O’Keefe’s Real Lawyers Have Blogs

Gabe’s Guide series about social media and e-discovery 

Social Media Marketing 101

To Twitter or Not To Twitter? That Is the Question for Lawyers

Legal Marketing

Thousands of new Twitter Groups

Twitter for Entrepreneurs

Top 50 Recruiters on Twitter

And (no surprise here) there is a growing niche market for lawyers on developing policies for the use of social networks and internet forums in the workplace and policy guidance to protect employers from litigation liability.  We recently heard about the first CLE on this area titled “Facebook, MySpace & Blogging in the Workplace: What’s Legal; What’s Not” which you can access here.

Gabes Guide is running a series on social media, especially the medium’s impact on e-discovery.

The Posse List will continue with its articles on social media but focused on how it can help you find jobs, and also provide you (if it’s your inclination) the opportunity to freelance.  Much, much more on that in the coming weeks.

The massive federal hiring wave will continue despite the ongoing national recession.

Our friends at Military.com have posted an article on how to find federal openings with a number of links which you can access by clicking here.

You can also find previous Posse List postings on finding Federal jobs by clicking here.

No, the process is long and not easy.  We have heard from Posse List members you waited 9+ months to receive confirmation their resume/application was received, and some waited 2+ years for an interview.

But our contacts at the DOJ, Treasury, the SEC, etc. have indicated a “fast track” on a wide range of positions relating to TARP, the bailouts and other aspects of the financial crisis so keep checking agency web sites.

Last night’s and this morning’s lead story in the legal media:  800 law firm jobs lost in one day.  And there will be more firings to come (click here for a sample).    For the contract attorney market there is a little gloating and perhaps a little schadenfreude.  Especially in the switch by AmLaw 200 advisers who first spoke about “the stigma of contract attorney work” and who have now changed their tune to “well, maybe temping ain’t half bad” as so ably chronicled by Gabe Acevedo in his blog Gabes Guide (click here).

We’re a bit bemused ourselves by the sudden surge in Posse List membership, a large percentage of that increase being ex-AmLaw 200 folks based on the resumes we are receiving.  How much of a threat they will be (will agencies want them?  will law firm want them?) remains to be seen.  A bigger threat is probably going to come from the associates who are still at firms and are using document review as a way to maintain their billable hour requirements.   Paralegals on The Posse List have told us that is happening and that firms have “altered the value” (reduced the bill rate?) to clients. 

The bigger threat to contract attorneys continues to be legal process outsourcing (read: India, mostly).   It’s been going on, really, since 1995.  It took off like a shot in 2001 but seems to have ramped up in the last 5-6 months and was recently stamped “ok” by the ABA opinion along with the 4 collateral state bar opinions, although ABA journal articles from 2005 and 2006 touted off-shoring as a necessary and integral part of law firm management.

Of major recent interest is the new Limited Liability Partnership Act in India (passed last month) which paves the way for foreign law firms to set up shop in India (click here and here).    But it’s not so much the “setting up shop” aspect that intrigues us.  Looking beyond that, it will allow the big UK and US law firms that have been pushing the Indian authorities to change to set-up internal LPO units.   This is not lost on the more savvy Indian LPOs who are scrambling to be in a position to set-up turn-key operations for law firms.   We think an element of off-shore outsourcing is here to stay despite the expected (hopeful?) economic recovery,  just as the traditional document review centers of DC and NYC have lost business to the less expensive venues of Chicago, Pittsburgh, Hosuton/San Antonio and the Carolinas . 

But India is beyond the scope of this posting and will be addressed in a much more detailed posting next week as we attempt to provide the history, scope and future of that aspect of outsourcing (we’ll ignore the growing LPO industries in Egypt, the Philippines and South Africa for the moment).

And perhaps the reality is that a client may not really want to send its work overseas, that these outsourcing discussions really highlight a client’s desire to simply seek lower cost alternatives, including sending work to smaller firms and “farmshoring” —- working with law firms in smaller metropolitan areas where billable rates are lower but quality is just as high, or going with niche firms.

But is all this just due to a brutal economic patch?  Will things “return to normal” and will AmLaw 200  alums return to their happy lairs?  Is there a tectonic shift going on which is now only apparent because of the economic maelstrom?  And what does this all mean for the contract attorney market?  What are the trends?

One of the immediate trends is one we stated in our post-LegalTech review which was that vendors expect a shakedown of the EDD market in the next 12-to-24 months, leaving a handful of big players as opposed to the hordes filling the booths this year. With so many vendors, it’s clear the competition is fierce.  Gartner recently published a detailed market study on the entire e-discovery software/technology industry outlining this shakeout (click here)  

For contract attorneys, it means increasingly streamlined reviews because the level of competition among the software providers is forcing them to spend a lot of time and money into creating products that make them stand out from the rest and ultimately produce more accurate and efficient means of conducting searches as well as more tools to monitor and control costs (including performance metrics).

That, coupled with the “meet and confer” philosophy we discussed in an earlier posting  puts pressure on the parties to devise a very focused (and hence shorter) discovery process.

A second immediate trend is that covered by Charles Skamser in this blog The Ediscovery Paradigm Shift which discusses, amongst other things, the transformation that is going on within the legal market in regards to the paradigm shift of e-discovery being brought in-house by corporations and their use of EDDs to build in-house centers, as evidenced lately by the Kazeon/Suburu match up (click here).

This parallels our LegalTech discussions with in-house counsel who said more legal work is staying inside corporate legal departments and moving away from law firms.  As we profiled in a post a few weeks ago, ACC members have reported a much larger use of contract attorneys in-house, especially in doc reviews and compliance projects.  EDDs have probably made more headway in this than staffing agencies, especially in the early case assessment software area and the “preventive software” area such as data mapping programs.  As several in-house corporate lawyers told us “we’re the front line in e-discovery” and “we need to be in more control, not outside counsel”.   They said “we need to get our digital houses in order” with a dedicated e-discovery coordinator in place.  Well, that’s the mission anyway. 

But doesn’t it appear there really is a tectonic shift going on which is now only apparent because of the economic maelstrom?  We believe there is and no one captures this better than Richard Susskind in his recent book  The End of Lawyers?: Rethinking the Nature of Legal Services  which relates how technology, collaboration, globalization, and other forces are changing the fundamental rules by which legal services are bought and sold.  It’s a sequel to his 1996 book The Future of Law which was right on target in it’s predictions on how the law would be transformed by IT.

And no one covers this tectonic shift better than Jordan Furlong in his blog Law21  which are his “dispatches from a legal profession on the brink”.  Jordon recently reviewed the Susskind book and he’s given us permission to post an excerpt:

The book is characterized by several key observations about how the legal marketplace is being transformed, with three especially significant ones:

1. The identification of an evolving and fluid spectrum of legal services categories: bespoke (one-off, customized or tailored), standardized (drawing upon precedents, process or previous work), systematized (reduced and applied to automated systems), packaged (systematized services exported to clients) and commoditized (packaged services so commonplace as to have little or no market value). Most lawyers insist that their services cluster around the left-hand end of this spectrum; Richard convincingly argues that movement to the right is inevitable for many types of legal services, with profound implications for lawyers’ business models.

2. The decomposition of legal tasks into component parts that can be delegated to various sources, few of them actual law firm lawyers. Twelve types of destinations for this multi-sourcing (reminiscent of unbundling) are identified: in-sourcing, de-lawyering, relocating, offshoring, outsourcing, subcontracting, co-sourcing, leasing, home-sourcing, open-sourcing, computerizing and no-sourcing, each of which is explained in more illuminating detail. Despite this multiplicity of legal work performers, an overarching entity responsible for managing the work must exist, and all the systems and processes involved must work together seamlessly.

3.  In the context of astonishingly deep and rapid technological advances, the emergence of no fewer than ten disruptive (in the Clayton Christensen sense) legal technologies: automated document assembly, relentless connectivity, the electronic legal marketplace, e-learning, online legal guidance, legal open-sourcing, closed legal communities, workflow and project management, embedded legal knowledge, and online dispute resolution. These developments offer tremendous opportunity for more efficient and effective legal services delivery; but they also represent major threats to various aspects of the traditional law firm business model.

For his full review click here.   You can also follow Jordan on Twitter by clicking here.  Jordan also recommends an equally good read,  Bruce Marcus on the massive upheaval in legal practice which you can access here.

There is a lot said in that three paragraph summary and the actual book goes into all the detail.    But it is all driven by two forces:  a market pull towards the commoditization of legal services; and the pervasive development and uptake of new and disruptive legal technologies.

Oh, and our jobs.  The problem is that everyone else has the same problems right now so there’s a need for a personal constructive approach.

And one thing happening is that many laid-off lawyers (and contract atttoneys) are shaking off the “inner hysteria” (Susan Cartier Liebel’s phrase; see below) and going solo, going independent.  See links here, here and here.

And what about being an independent contract attorney?  Possible?  Of course it is.  Hard work?  Of course it is.  But we provide just two examples of how it can be done and how successful you can be:  Kimberly Alderman at Lawyer On! The Contract Attorney’s Blog  and Lisa Solomon at  Legal Research and Writing.

And building a solo practice?  Then start with Susan Cartier Liebel and her blog Building a Solo Practice and Carolyn Elefant at MyShingle.   And check out Rex Gradeless at Social Media Law Student.

And no, we aren’t getting fees for the honorable mentions above.  We are trying to assist the Posse List membership as best we can.  You now number 13,000+ and include lawyers, law students, law firms, EDDs, legal organizations, etc.  Many of you have asked us to cover freelance and “going solo” solo opportunities .

Well, we can’t replicate all the phenomenal sites and bloggers out there that cover freelance, independent contract attorney opportunities and going solo opportunities so what we’ll attempt to do is point you the right direction.  We expect to launch our new site within the next 10 days (Lord willing and the crik don’t rise) and will incorporate a potpourri of links.  And we’ll continue our distribution of news on document review work projects, Federal government projects and the seeming endless stream of foreign language projects in the U.S. and Europe.

In the end, as Jordan Furlong and I believe, the day is coming when the appellation “contract attorney” is a redundancy.  Or as Jordan picks up the theme:  “I can see more and more ‘free agent’ lawyers working when they need/want to, coming together and dispersing on a project-by-project basis, and generally turning on its head the presumption that most lawyers work in law firms”.

Stay tuned.

In answer to your flood of mails, we assume the FBI will hire contract attorneys for this work which they have done in the past.

However, the FBI has changed it staffing procedures and now goes via the FBO route for contracting (for reference see here http://tinyurl.com/d86l4w and here http://tinyurl.com/ae3nw2) and not directly to staffing agencies.

There are many GSA qualified vendors in the DC area who regulary bid on these projects.  In most cases there are “set asides” for small businesses (e.g., 8(a), service-disabled veteran owned small business, HUBZone small business, small disadvantaged business, veteran-owned small business, and women-owned small business) that get first shot at these types of projects.

There are several contract attorney agencies that meet the set-aside requirements and we assume they track the FBO listings and the off-FBO solicitations.

We are checking the FBO and other sites and we’ll keep you advised.

Note, however, we suspect these will come in at a low hourly rate, although Posse List members who have high, current security clearances have often commanded a higher rate.

Upcoming webinars, and a seminar for those of you in D.C.:

WEBINAR: Socha-Gelbmann Update: LegalTech New York, EDRM & e-Discovery Trends

Tuesday, February 10, 2009
1:00 PM EST/10:00 AM PST (Duration: 1 hour)

Link:  http://tinyurl.com/bg2xqt

WEBINAR:  Best Practices Webinar: Kazeon hosts eDiscovery Panel Discussion
with United States District Judge James M. Rosenbaum and Magistrate  Judge
Franklin L. Noel

Popular trends, challenges and best practices surrounding eDiscovery

Thursday, February 19, 2009
10:00am PST/1:00pm EST

Link:  http://tinyurl.com/cklz85

SEMINAR: Learning and using the new Adobe Acrobat 9.0

Tuesday, February 24th
9:30AM – 12:30PM

Seminar and free breakfast

WHERE:

Westin Wash, DC City Center
1400 M Street NW
Washington, DC 20005

Link:   http://tinyurl.com/bdhfry

And the following are a mixed bag of articles you might find of interest:

The history of the internet in 8 minutes http://tinyurl.com/dddvdy

Hogan & Hartson offers buyouts to 240 staffers    http://tinyurl.com/ceufqj

The risks and rewards of launching new firms     http://tinyurl.com/dka5em

Learning bankruptcy law    http://tinyurl.com/akaqrn

DOJ Releases Antitrust Amnesty Agreements  http://tinyurl.com/d2rehb

Seward & Kissel, the FCPA and Somali Pirates   http://tinyurl.com/af38yf

The Confidential Facebook Settlement     http://tinyurl.com/bu7d9e

SEC, Madoff Agree to Settle Civil Fraud Case     http://tinyurl.com/auz5sp

BigLaw: Welcome to the Future    http://tinyurl.com/c2g8jr

Google Making Powerful Moves    http://poprl.com/HcO

Every curse word in every Soprano episode  http://vimeo.com/2998698