Are Managed Review Vendors Allowed to Supervise Document Review Projects in Virginia?

Welcome to Virginia
I have written many posts analyzing and applying the D.C. Unauthorized Practice of Law opinions to various situations involving contract attorneys performing document review. In D.C., the rules are pretty clear that non-law firm managed review vendors cannot supervise the legal work of attorneys, but in other jurisdictions, the rules have not be laid out with as much specificity.

I just received a job posting from a managed review vendor seeking to hire an “e-discovery attorney” for their Virginia office. I am not an expert in Virginia law, but to my knowledge, most state bar rules and ethics opinions are clearly designed to prohibit non-lawyers from rendering legal services to clients. I’ve reposted some of the bullet points from the job description below and would like to invite others to weigh in on whether this posting implicates any issues relating to the unauthorized practice of law. Would the person executing these duties be rendering legal advice on behalf of their employer, a managed review vendor?

Position Description
• Exercise discretion and judgment using advanced knowledge in field to make daily decisions on tasks.
• Prepare legal documents such as briefs, motions, memos, verifications, etc.
• Perform legal research using traditional and automated methods.
• Conduct privilege and relevance reviews.
• Draft attorney correspondence and prepare for signature.
• Analyze probable outcomes applying knowledge of legal precedents and consult with clients regarding analysis.
• Implement and maintain Quality Control measures. Review the work of others for accuracy.

For those interested in taking a closer look, below is an excerpt from the Virginia Bar’s Legal Ethics Opinion 1850 on the outsourcing of legal services:

Lawyers frequently hire contract lawyers and nonlawyers alike to do legal research, document preparation, or document review. The role of the lawyer in these situations is akin to outsourcing, but on a more localized level. In none of these circumstances does contracting for such services constitute aiding the unlicensed practice of law, provided there is adequate supervision by the lawyer. See e.g., Unauthorized Practice of Law Op. 191 (1998) (permitting an attorney or firm to employ nonlawyer personnel to perform delegated functions under the direct supervision of a licensed attorney). However, the Rules do not permit a nonlawyer to counsel clients about legal matters or to engage in the unauthorized practice of law, and they require that the delegated work shall merge into the lawyer’s completed work product. The lawyer must examine and be responsible for all work delegated to nonlawyer personnel and must also assure compliance by nonlawyer personnel with the Rules.

In order to comply with Rule 5.3(b), the lawyer must be able to adequately supervise the nonlawyer if the work is outsourced. Specifically, the lawyer needs to review the nonlawyer’s work on an ongoing basis to ensure its quality, the lawyer must maintain ongoing communication to ensure that the nonlawyer is discharging the assignment in accordance with the lawyer’s directions and expectations, and the lawyer needs to review thoroughly all work product to ensure its accuracy and reliability and that it is in the client’s interest. The lawyer remains ultimately responsible for the conduct and work product of the nonlawyer. Rule 5.3(c).

Virginia State Bar Legal Ethics Opinion 1850 at 4.

I look forward to reading your interpretations in the comments and hope we can start a productive dialogue.

One thought on “Are Managed Review Vendors Allowed to Supervise Document Review Projects in Virginia?

  1. Ryan says:

    Mr. Tanenholz,
    I came across your blog while I was researching overtime for contract attorneys. I was going to reply to one of your posts with this example and how I believe it throws a wrench in the overtime analysis. As a background, I worked for the above company for over a year. (I am making an assumption) The company is a non-law firm LPO (Legal Process Outsourcing) which does business primary in India and the US. The Virginia office was formally a practice area of a national law firm. The firm partners sold the office to the LPO. I worked for this group for about four years. Three were under the law firm and one under the LPO. This structure raises two issue. 1)UPL and 2) overtime
    1) UPL
    I can not discuss upper management, but absolutely nothing changed with the day to day operations. The only difference I saw were job titles. Partners became VPs, associates became managers and paralegals become project specialists. Actual work did not change. This tells me that the company does not view document review as legal work. If not, an UPL case can be made.
    2) Overtime: neither the law firm nor the LPO paid overtime. Approximately 50% of project staffing were attorneys. The other 50% were JDs and recent college graduates. In terms of actual work, there were no meaningful difference between the attorneys and non attorneys. Initially, the non-attorneys were limited to 40 hours while the attorneys could work beyond 40 but at strait time. Currently,since Lola, everybody can work more than 40 hours but no one is entitled to overtime. The company seemingly takes the position that Lola exempts everybody in document review. Personally, I think that is the correct interpretation of the case. The court found that Lola was not authorized to practice law; it further found document review was the practice of law and that was the defining factor, not Lola’s bar status. As such, a 22 year old college grad, under Lola, is exempt. Frankly I believe this is a terrible outcome but it is the outcome established by the court.
    What are your opinions on non-attorneys not receiving overtime under this case?

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