Last week we received the following comment from a reader on one of our most popular blog posts, Quinn Emanuel States the Obvious: Document Review Is Practice of Law, voicing concern about whether his current employer, a staffing agency, could be running afoul of D.C. Bar rules. I wanted to highlight his comment and offer my response as a blog post. If you are familiar with document review, particularly in D.C., I’d be very interested to hear your thoughts as well in the comments.
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.
Robert, thank you so much for your comment. You raise two really good questions here:
- Is it permissible for the agency to supervise the substance of the legal work of the review attorneys, and,
- Can the agency get around the requirement of using DC licensed attorneys by billing the clients for “document reviewers” instead of “attorneys”?
Is it permissible for the agency to supervise the substance of the legal work of the review attorneys?
Based on your description, the situation does seem to implicate activity that is prohibited by the DC Bar and DC UPL Committee Opinions. You say that the work is managed by the agency, and that the management is not merely restricted to administrative tasks, but indeed includes overseeing the substantive legal work of the attorneys (such as changing coding decisions and advising on privilege issues). This appears to be plainly prohibited by DC UPL Opinion 21-12 which states that the agency may only provide administrative services:
In order to provide guidance to discovery services companies regarding the permissible scope of services that may be performed without engaging in the practice of law and the extent to which the companies may promote their services without holding out as authorized to practice law in the District of Columbia, the Committee offers the following principles:
[T]he 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.
Opinion 21-12 at 7-8 (emphasis added).
It sounds like that is directly on point with the situation you described. The agency may not attempt to direct or supervise the legal work of the attorney. I think this should be fairly obvious, but just to further delineate the difference between the substantive supervision of legal work (impermissible) and the administrative supervision of the project (permissible), the Committee provides some useful examples:
[D]iscovery services companies do not run afoul of Rule 49 by handling the administrative aspects of hiring and supervising a document review attorney. This 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 similar supervisory activities that do not require the application of professional legal judgment.
Id. at 8.
My recommendation to you is to show this precise language of the Opinion to the recruiter, and ask if she can explain how the conduct of her agency complies with the above.
Can the agency get around the requirement of using DC licensed attorneys by billing the clients for “document reviewers” instead of “attorneys”?
DC Court of Appeals Rule 49 requires bar membership for tasks which are considered the “provision of professional legal advice or services.” Rule 49. The DC UPL Committee Opinions confirm that this rule fully applies to contract attorneys performing document review for staffing agencies and discovery service companies. So, the real issue here is whether the review attorneys are performing work that involves the application of legal knowledge, training, or judgment, and thus covered by the bar requirement of Rule 49. The fact that the agency (or the client) is specifying that they want somebody licensed “somewhere” is not dispositive here. If the task being performed by the reviewer does not require legal knowledge, training, or judgment, then it could be entirely permissible for a non-attorney or an attorney licensed outside of DC to perform the tasks:
Rule 49 does not regulate the hiring of a person as a paralegal or a law clerk, even though the person may be admitted to the practice of law in another jurisdiction.” Opinion 16-05 at 5. Accordingly, discovery 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.
Opinion 12-21 at 8.
That said, based on your description above that the project involves “all levels of document review” and strategy, responsiveness, and privilege issues are being determined, I think it is safe to assume that the work performed does involve the application of legal knowledge, training, or judgment. If it doesn’t, and the work is paraprofessional and not legal in nature, the agency is right not to hold out or bill these “licensed somewhere” reviewers as “attorneys,” but “document reviewers” instead.
However, just because it is impermissible to bill “licensed somewhere” reviewers as attorneys, that does not mean the converse is true: that so long as you are not billing “as an attorney” that you can render legal services in DC without being a member of the bar. That is a logical fallacy that, as you can see, would virtually nullify Rule 49 and the rest of the bar rules. If that were the case, people could perform any legal service they wanted, without a license, so long as they were careful not to hold themselves out as an attorney. That is clearly not the rule.
Thanks again for your comment, and best of luck navigating this potentially complicated situation.
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