Licensed Attorneys, Not Out-of-Work Actors, Perform Doc Review
In the U.S. District Court for the Southern District of New York, Quinn Emanuel is currently defending a Fair Labor Standards Act (“FLSA”) case brought by a former contract attorney who had been hired to review documents in connection with a pending litigation. The Plaintiff, William Henig, is complaining that he was unlawfully denied overtime pay for his document review work.
The rules promulgated by the Secretary of Labor pursuant to the FLSA, are pretty clear on the matter: attorneys engaged in the practice of law are exempt “professional” employees, and their employers are not required to pay them overtime. (See 29 U.S.C. § 541.304(a)(1) exempting “any employee who is the holder of a valid license or certificate permitting the practice of law . . . and is actually engaged in the practice thereof.”)
Plaintiff attempts to argue at that because the document review performed was so routine and menial, in his opinion, it was not “real” legal work, and therefore he was not “really” engaged in the practice of law, and not subject to the professional employee exemption to the FLSA overtime requirements.
To refute this argument, Quinn Emanuel had the challenging task of “proving” the obvious. Not surprisingly, Quinn Emanuel’s motion to dismiss persuasively articulates the reasons why licensed attorneys tasked with analyzing documents to determine relevance and privilege for pending litigation are engaged in the practice of law:
• Document review is a “core attorney function” “of critical import.”
“Overwhelming legal authority and decades of industry practice also confirm document review is a core attorney function. . . . Although document review is sometimes perceived as a less glamorous litigation task, it is often of critical import. Hence why Quinn Emanuel contracted for a licensed attorney rather than an out-of-work actor.”
• Courts recognize contract attorney fees as any other attorney fees.
“Courts routinely grant requests for attorneys’ fees based on time billed by contract attorneys for performing document review, which demonstrates judicial acknowledgement that the task constitutes ‘legal work.’”
• D.C. Court of Appeals Committee on Unauthorized Practice of Law Opinion 16-05.
“In 2005, the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law issued an opinion addressing the question whether a contract attorney conducting document review in the jurisdiction was engaged in the practice of law, and thus, required admittance to the D.C. Bar. . . . The committee held that such attorneys were engaged in the practice of law, thus requiring admittance, even though the type of first-level document review performed by contract attorneys might be characterized by some as ‘paralegal work.’ The committee noted: ‘When a person is hired and billed as a lawyer, however, the person is generally engaged in the practice of law, and is certainly being held out as authorized to competent to practice law.’”
• Document review demands professional legal judgment as errors can be enormously costly.
“Document review inherently involves the exercise of discretion and judgment, and an attorney’s failure to do so, poses severe consequences. An attorney’s failure to exercise appropriate diligence and judgment in reviewing and producing documents can result in severe penalties, both for the attorney and his or her client. See Fed. R. Civ. Proc. 37 (a party that fails to respond to a discovery request ‘may be fined, have its evidence prevented from being admitted, or have its claim dismissed partially or entirely.’)”
“In addition to the risk of sanctions, an attorney’s failure to exercise proper judgment and discretion in reviewing documents can result in the inadvertent production of privileged or work product materials, and a finding that the client has waived attorney-client privilege.”
Stay tuned, and we will post an update when the Southern District of New York rules on this motion. We would be quite surprised if the Court holds that the alleged “mundaneness” of a litigation document review staffed and billed by attorneys has any bearing on whether the review work is deemed to be the practice of law. A ruling that this type of review work is, as a matter of law, the practice of law, would help to further clarify the roles various e-discovery firms and vendors should play in the review process.