In response to our latest blog post discussing how document review should be considered the practice of law, Mark Miller of Mark W. Miller & Associates, a Litigation Support and Document Services company, asked us to address how this idea relates to document review performed by attorney-supervised paralegals. We certainly recognize the tremendous value experienced paralegals like Mark can provide on complicated document reviews, and we encourage our clients to utilize paralegals as much as possible within the court rules. The specific issue Mark raises, assuming I have understood him correctly, is this:
How can we distinguish between document review tasks that can be performed by paralegals under attorney supervision, and document review tasks that require attorneys?
As an initial matter, we want to clarify that our analysis is only being performed with respect to DC law, and we acknowledge that other jurisdictions may have different rules. Additionally, this blog post is for general informational purposes only, and should not be construed as legal advice.
After review of the relevant DC UPL Committee Opinions, we have three basic guidelines:
- Attorneys should be used for all document review tasks that “involve the application of legal knowledge, training, or judgment.”
- Final determinations of relevance and privilege should be done by attorneys, not paralegals.
- Selection of attorneys and supervision of legal work should be performed by attorneys.
As the DC UPL Committee Opinions (6-99, 16-05, 21-12) make clear, document reviews are often a mix of legal and paralegal work. Clearly, a supervised paralegal would be permitted to perform the tasks that lie on the paralegal side of the equation and not permitted to perform the legal tasks. Although this may require a facts and circumstances evaluation for each individual task, the Opinions fortunately do give us some insight as to where the line is drawn.
The short answer appears to be that permissible paralegal work is work that “does not involve the application of legal knowledge, training, or judgment.” (21-12 at 8). As you might imagine, document review tasks can run the spectrum of tasks that obviously require the application of legal knowledge, training and judgment (such as making final privilege determinations) to items that appear to require little or none (such as flagging documents for discrete factual issues for later review by attorneys). The question is, where do we draw the line?
Opinion 16-05 provides a helpful example that can help determine this distinction in specific situations. This opinion addresses whether contract attorneys performing document review need to be members of the DC Bar. In its analysis, the D.C. Court of Appeals Committee on Unauthorized Practice of Law recognizes that portions of document review may be akin to “paralegal work” which might not require a bar license. To clarify this point, the Opinion cites a “common example” of an “overlap” task such as the “review of documents for potential relevance or potential privilege, where the ultimate decision to assert the privilege and produce or not produce the document will be made by someone else.” (16-05 at 5.)
The clear implication here is that final determinations of relevance and privilege should be done by attorneys, not paralegals (at least in D.C.). The Committee’s full discussion is here:
A number of inquiries to the Committee have asked whether Rule 49 applies when the work the contract lawyer is hired to do is characterized as “paralegal work” or other work that seems to call for little or no application of legal knowledge, training, or judgment, and that is supervised by a member of the D.C. Bar. The Committee recognizes that there are areas of legal practice where the work of lawyers and non-lawyers may overlap. Perhaps the most common example is review of documents for potential relevance or potential privilege, where the ultimate decision to assert the privilege and produce or not produce the document will be made by someone else. The Committee has been asked whether Rule 49 applies in such a situation even though the contract lawyer doing the first line review performs the same basic function as a paralegal.
In Opinion 21-12, the Committee addresses whether managed review companies—which are not law firms—may offer full service management of document reviews. This issue is instructive to our present question because managed review vendors who are expressly not engaged in the practice of law would presumably be permitted to perform the tasks of paralegals, but not of licensed attorneys.
The Opinion held that such companies could not offer to design, develop, and manage the entire review process if those offerings were meant to include the selection of attorneys to work on the project and supervising the exercise of the attorneys’ legal judgment. (21-12 at 5)(“If the company does so in the District of Columbia, it would be engaging in the practice of law under Rule 49, as discussed in the Committee’s Opinion 6-99.”) Further clarifying the line between legal and paralegal tasks, the Committee stated:
The discovery services company could leave all of the tasks involving the exercise of legal judgment, such as the final selection of attorneys to work on the project and overseeing project attorneys’ legal work, to a lawyer with a client relationship.
(21-12 at 6). Thus, the managed review vendor, or paralegal, cannot attempt to supervise the legal work of the document review attorney. (21-12 at 7-8). Finally, the Committee concluded:
[D]iscovery services companies do not violate Rule 49 when hiring persons to perform work that does not involve the application of legal knowledge, training, or judgment, and the person is not held out or billed as a lawyer.
(Id. at 8)
Thus, modern document reviews certainly have elements that can benefit from attorney-supervised paralegal assistance; however, both supervising attorneys and paralegals need to be careful to ensure that Rule 49 is not violated through the assignment of tasks requiring legal knowledge, training, and judgment to non-attorneys.
This blog post contains general information for educational purposes that may not reflect the current law in your jurisdiction. This blog post reflects the personal opinions of the author.
This blog post is not intended to constitute legal advice and the information contained within is not provided in the course of an attorney-client relationship. This blog post and this blog are not a substitute for competent legal advice from a licensed attorney in your state.