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Is Doc Review the Practice of Law? 2nd Cir. Will Decide

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By Casey C. Sullivan, Esq. on June 02, 2015 9:56 AM

The Second Circuit heard arguments last Friday on whether contract lawyers are entitled to overtime pay. "Legal practice" is exempt from the Fair Labor Standards Act's overtime rules. However, one lawyer argued that his document review job was so rote and tedious it does not amount to the practice of law, meaning he's entitled to overtime.

The case presents an odd situation where a lawyer stands to make more money -- perhaps substantially more -- should his labor be considered too simple to be the practice of law.

A Typically Tedious Doc Review Gig

Attorney David Lola was employed by a legal staffing company for fifteen months, doing doc review for Skadden, for $25 an hour. Though he worked 45 to 55 hours a week, he was never paid overtime. (Talk about cheap, Skadden!)

Often, firms bring on attorneys to handle doc review because scanning through discovery documents is considered the practice of law, thus requiring a valid law license. But, Lola argued, his responsibilities were so limited they could not be considered practice and should not be exempt from overtime under FLSA.

Lola's doc review gig would sound familiar to most contract attorneys, if maybe a bit circumscribed. The entirety of his work consisted of looking for search terms in documents, placing them in predetermined categories, and occasionally redacting sections of documents.

You Call That Practice?

Under the FLSA, employees are owed one-and-a-half times their regular rate of pay for hours worked in excess of forty per week, unless they are engaged in a "a bona fide professional capacity." Under DOL regulations, the practice of law is considered such exempt professional work, but one must be "actually engaged" in practice for the exemption to apply.

Skadden and Tower had argued that doc review, while not the most glamorous legal work, still was the practice of law because it required attorneys to use their legal training. Lola disagreed, characterizing his work as "mechanical" and lacking "any legal judgment or discretion."

The district court rejected Lola's arguments. Under North Carolina laws regarding the practice of law, a lawyer is practicing when he or she performs "any legal service" or "any legal work." That definition is so expansive as to be almost meaningless, but the North Carolina Bar has repeatedly found that doc review is practice and cannot be outsourced to nonlawyers. That was good enough for the Southern District of New York.

On appeal, Lola argued that practice must include more than just a lawyer scanning through documents, looking for keywords. A ruling in his favor would be a major strike to the egos of contract attorneys everywhere.

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