DC UPL Committee Rules On Permissibility of Attorney Supervision by Discovery Services Companies

In a recent Opinion, the UPL Committee stated that discovery services companies may only handle the administrative aspects of supervising a document review, and may not perform any supervisory activities requiring the application of professional legal judgment.  It held that the “expanded scope of services offered by discovery service companies and the way that they are promoted raise questions as to whether their activities constitute the practice of law under DC Court of Appeals Rule 49, and whether the companies’ promotional statements constitute holding out as authorized to practice law in the District of Columbia…”  (See Opinion 21-12, linked above, at page 5.)

The Opinion also offers guidance to discovery services companies regarding the permissible scope of services that may be performed without engaging in the practice of law.  In short, the Committee held that employees of discovery services companies cannot represent outside clients or provide legal advice (even if those employees are individually admitted to practice law in DC), and must be directed or supervised by attorneys with an attorney-client relationship with the client.  The discovery services companies may provide administrative and logistical support, but may not provide any supervisory activities that require the application of professional legal judgment.  We have summarized five key points from the Opinion below:

1.       The “final selection of attorneys to staff a document review project must be made by a member of the D.C. Bar with an attorney-client relationship with the client, the attorney’s legal work must be directed or supervised by a D.C. Bar member who represents the client, and the discovery services company may not otherwise violate Rule 49 or attempt to supervise the document review attorney.”  (Op. at 8.)

2.       The “touchstone of Rule 49(b)(2)(F) is the exercise of professional legal judgment.”  Discovery services companies may handle “the administrative aspects of hiring and supervising a document review attorney.”  (Id.)  These administrative duties could include:

  •       “interviewing individuals to create a roster of attorneys available to assist with document review projects,”
  •       “providing the lawyer’s working space and equipment,”
  •        “ensuring that he or she works a regular day and works at an acceptable pace,”
  •       “providing salary and benefits,”
  •       “and [performing] similar supervisory activities that do not require the application of professional legal judgment.” (Id.)

3.       Discovery services companies “that are not otherwise authorized to practice law in the District of Columbia may not provide legal advice to their clients, nor may they hold out themselves or any attorneys on their staff as authorized to practice law in the District of Columbia… Broad statements that a company can manage the entire document review or discovery process… have a serious potential to mislead.  Accordingly, discovery services companies should avoid making such broad statements or at a minimum must include a prominent disclaimer stating that the company is not authorized to practice law or provide legal services in the District of Columbia and that the services offered by the company are limited to the non-legal, administrative aspects of document review and discovery projects.”  (Id. at 8-9.)

4.       “[I]n order to avoid creating the impression that the company or its staff is authorized to practice law in the District of Columbia, statements regarding the legal expertise of the company’s staff must be accompanied by a prominent disclaimer that the company is not authorized to practice law or provide legal services in the District of Columbia, and that the company’s staff members cannot represent outside clients or provide legal advice.”  (Id. at 9-10.)

5.       “While a DC Bar member may individually be authorized to practice law in the District, a company providing such an attorney’s legal services would necessarily run afoul of the restrictions placed on attorney referral articulated in the Committee’s Opinion 6-99.”  (Id. at 10.)

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