Quinn Emanuel States the Obvious: Document Review Is Practice of Law

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.

16 thoughts on “Quinn Emanuel States the Obvious: Document Review Is Practice of Law

  1. Finally I have some reasonable answer as to why there has been a trend for JD’s only in job listings for Managed Document Review.

    However, this still leaves the question: What about Paralegals that work under the guidance of attorneys?

    I’ve been doing document review and coding for almost 20 years. I might know something more about document review then a newly minted JD.

    1. Mark, thanks for your comment! You raise a good question, and I found I was unable to respond adequately in the comments section here. Thus, I will be making a new post later today to provide our view on the permissible roles of paralegals performing document review under the guidance of attorneys. We look forward to your thoughts on it.

  2. This might be the case in DC and NYC but not in scores of other jurisdictions. We post document review jobs everyday across the country for staffing agencies/law firms looking “only” for paralegals. Worse, a common complaint we receive from members is that when they move to a jurisdiction where they are not licensed and try to waive in based on 5+ years of law practice (the common threshold) invariably they are told “document review is not the practice of law” so they cannot count that towards the 5 year requirement. We actually intend to poll our members on these issues so we can get jurisdiction cites/hard numbers. We’ll keep you posted.

    1. Thanks for your comments, Greg. In DC, the UPL Committee has acknowledged that the “review of documents for potential relevance or potential privilege” is an area where “the work of lawyers and non-lawyers may overlap.” So we agree it is certainly appropriate for paralegals to perform many tasks associated with document reviews. We also agree with you that the law relating to the unauthorized practice of law varies by jurisdiction, and we have only looked closely at the law in DC.

      With regard to your point about jurisdictions that do not count document review time towards their waiver requirement: We have certainly heard those stories as well, and frankly, find it appalling. We look forward to your poll results.

  3. David Tanenholz says:

    Please see our latest blog on paralegal document review in DC. http://tanenholzash.com/paralegal-document-review

  4. Laura Ewing says:

    I’m reading two issues: 1) Why would a first year attorney be better at document review than a 10-year paralegal? 2) Why would a contractor not receive overtime pay even s/he is an attorney and is practicing law? Contractors are already working for fewer benefits and bonuses; now they are denied OT?

    1. Thank you for your comments Laura. We agree that experienced paralegals can often be better at certain tasks than inexperienced attorneys. The issue here, however, is whether the person performing the document review is required be a member of the bar of the jurisdiction in which he or she is performing the review. In the District of Columbia, Rule 49 requires bar membership for tasks which are considered the “provision of professional legal advice or services.” This would apply not only to paralegals, but also to attorneys barred only in other jurisdictions. So, even a 30 year attorney, who is the foremost subject matter expert in a given legal field, would still require admission to the DC bar (even if temporary admission) if he or she wishes to practice law within the District.

      So, again, we completely recognize the value of experienced paralegals in document review and we encourage their use. That said, if the review tasks are considered the practice of law, we believe bar membership is required.

      With regard to the second issue you raise, our firm’s policy is to always pay attorneys overtime rates for overtime work, and we cringe when our competitors compel their attorneys to work crazy hours at standard rates. Our original post, however, deals with whether firms are compelled by the Fair Labor Standards Act to provide overtime pay to attorneys. Because the statute has a clear exception for attorneys engaged in the practice of law, we can see no way that it can be read to apply to attorneys performing document review under the facts of the Quinn Emanuel case.

  5. V.C. says:

    Hi, sorry this comment is 10 months after your post, but I had a couple of questions.

    1. I realize that you practice in D.C., but is there a chance that the state of New York (where this lawsuit was filed) doesn’t treat document review as the practice of law? I ask because I think I read somewhere that for reciprocity purposes, the New York Bar does not consider document review to suffice as the practice of law. So if you are admitted in a reciprocal state and performed doc review for ten years, none of that would count if you applied to waive into the NY Bar.

    2. What are your thoughts about projects or agencies that allow some of their reviewers to be barred in “any jurisdiction” or even J.D.’s that are “awaiting bar admission.” Would this change your mind? There are some projects in New York that take reviewers who aren’t barred, or aren’t yet barred, in NY. I know this might sound like I’m working backwards to get the answer, but if a reviewer isn’t barred in NY and is allowed to do a particular function in NY, doesn’t it follow that the function isn’t the practice of law?? The response I’ve heard to this is something about if the litigation that is involved in a document review is in a federal court, then it’s fine for the reviewers to be barred anywhere in the U.S. I didn’t quite understand that as the justification, but I do know that there are reviews in NY and even in NJ and PA where the agencies say “barred in any jurisdiction.”

    Thanks for your time!!

  6. Thanks for your comments V.C, and I am happy to address each of your questions.

    As to question 1, as we mention in an earlier comment, we have not analyzed this issue in jurisdictions other than DC. Like you, I have heard generally that some jurisdictions do not count document review as the practice of law for the purposes of meeting the criteria to waive their bar admission requirements. I do not doubt that this occurs, but I have yet to see any written opinions or other authority from any state bar asserting or justifying this position (nor am I aware of this specifically happening in New York.) But, please note the comment from Gregory P. Bufithis, Esq. above. Greg is the Founder/Chairman of The Posse List, and is an industry leader and expert on the document review market. When he says that this is a common complaint from his members, that means it certainly occurs.

    As to question 2, again, we have only looked at this issue with respect to DC, but it is a really good question. A very common mistake people make is to rely on a staffing agency or a managed review vendor— two types of entities that are not authorized to engage in the practice of law— for guidance on how to properly comply with bar requirements. Understandably, many people simply assume that because a company is offering a job for people who are not barred in that jurisdiction, that it is therefore “okay” to do that job without being licensed there. How could they possibly publicly advertise for positions that people aren’t allowed to fill?

    All I can say is that it happens. All the time. We see this even in DC, where the requirement for DC bar membership for document reviews is clearer than in most jurisdictions (See our prior blogs, e.g. http://tanenholzlaw.com/560). Yet, even in DC, we still see jobs posting for “any jurisdiction” or even J.D.’s only.

    There may be certain circumstances or bar rule exceptions that apply to a given job, but in general, we do not think it is wise to rely only on your prospective employer’s opinion as to whether bar membership is required. Your prospective employer may or may not know or care about the bar rules.

    With respect to people whose bar admission is “pending,” the answer may be different. For example, DC Court of Appeals Rule 49(c)(8) provides a limited exception under certain circumstances for lawyers whose bar applications are pending. You would have to investigate the applicable rules under the particular circumstance in which you are about to enter.

    Thanks again for your comments, and good luck to you!

  7. Robert Simpson says:

    I’m working for an agency (I’m barred in DC) performing document review. For the past week I’ve overheard the recruiter, an attorney (not barred in DC), say that bar license doesn’t matter to her so long as you are barred somewhere. The office where this work is performed is located in DC, reviews consist of all levels of document review and the work is managed at the agency (beyond administratively, ie strategy, reviewing responsive documents, making changes to coding and conveying opinions on responsiveness and privilege) by another attorney who is also not licensed in DC. When a potential recruit said they were only barred in Maryland and asked if that would be a problem this recruiter said “absolutely not, you are billed to the client as a document reviewer and they only care that you are licensed somewhere.” This sounds like she is opening the agency, the firm and clients all to some serious liability and that she is actively rule breaking. If they require a bar license then it’s clear that an attorney is required to perform the work and per the opinion must be barred in DC. What is your take on this situation? It is unfortunate for me because she is using this lack of DC license to convince the agency they could lower their rate by 25%. It is a disappointing situation because I am quite fond of the employees at the agency but this seems like a sinking ship.

    1. Robert, thanks so much for your comment! You raise some great questions. I’ve decided to respond to you fully in a new post that we will make today. I look forward to your thoughts, thanks!

  8. dk says:

    Under supervision …my interpretation is that this means an attorney must sign off on every document … as paralegal can draft legal documents yet cannot sign the document because it must be reviewed an signed by an attorney… clicking responsive in a document review is essentially not enough unless an attorney signs off on each responsive document ththi s making the supervision requirement redundant and further making “managed jd projects” uncalled for… document review is legal work and thus only a barred attorney can practice law in the specific state they are barred in without supervision

  9. DK says:

    Document review is considered the practice of law. This means that you cannot practice law without a license. Although a paralegal/ jd can assist, they must be under supervision. I would also like to point out that “under supervision” does not translate to merely watching others, it means reviewing, and signing off on it. As when a paralegal drafts a document for the court, that document has no legal meaning until it is signed and approved by an attorney. Similarly, each reviewed document must be signed off by an attorney. This essentially makes JD reviews and review attorneys “barred in any state” obsolete, and further limits the pool to attorneys being allowed to only “practice law” in the state in which they are barred… Essentially when a document is marked responsive/privileged, that is an electronic signature by an attorney.

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