Does Doc Review Count as Active Practice of Law?

Co-authored past Kat Jugo and Kevin Young

The lawyers in our readership are quite familiar with the fact that, as a full general affair, practicing attorneys are not entitled to overtime pay under the FLSA. Only does that exempt status change when an attorney is retained only to review and flag documents? No it does not, per a decision issued last week by a federal judge in New York.

The case, Henig five. Quinn Emanuel, et al., was filed by a licensed attorney who was employed by a staffing bureau. Through the bureau, the chaser was placed at Quinn Emanuel, an international law business firm, for a two-month document review project. There, he was instructed and trained to review documents and use tags to point whether they were: (i) responsive; (ii) privileged; (iii) confidential; and/or (iv) "Primal" or "Interesting."

In March 2013, the attorney filed adapt in New York's Southern District, claiming that he was misclassified equally exempt from the overtime requirements of the FLSA and the New York Labor Law. Afterwards limited discovery, Quinn Emanuel and the staffing agency moved for summary judgment, arguing that the attorney was properly classified under the professional exemption. That exemption applies to various professionals, including, as a general matter, lawyers who (i) concur a license permitting the exercise of law, and (2) are engaged in the practice of law.

The chaser claimed that he was misclassified because he was non engaged in the practice of law. He asserted that his review piece of work was rote and automatic, and that it did not require him to exercise legal judgment. For case, he alleged that while reviewing a document for privilege, he was merely identifying whether it was authored, sent, or received by an chaser. Such work, he argued, did non require legal judgment and, therefore, did non establish the practice of law.

The court disagreed and granted summary judgment to Quinn Emanuel and the staffing bureau. Unmoved past the fact that certificate review may sometimes be routine or tightly restrained, the court found that the chaser exercised at least a modicum of legal judgment. Such judgment included, for case, his decisions to tag certain documents as "Key," likewise as his comments on the potentially privileged nature of other documents. For instance, the attorney testified that he tagged a document as "Key" because "it didn't seem similar something that should be buried."

The ruling comes on the heels of a less than favorable Second Circuit ruling in Lola v. Skadden Arps, et al., a similar instance filed by a contract attorney. The district court determination in that example, which nosotros wrote about just over a year ago, dismissed the plaintiff's claims on like grounds, albeit pursuant to a Rule 12(b)(six) move to dismiss (rather than a Rule 56 motion for summary judgment). Unfortunately, that decision was after vacated and remanded by the Second Circuit, which found that document review does not per se constitute the practice of law, and the plaintiff's claim that he did non exercise any legal judgment was enough to survive a move to dismiss.

If the story had ended with the Second Circuit's decision in Skadden, then police firms in New York, Connecticut, and Vermont would be left to wonder whether courts might uphold an exempt classification for document review attorneys. This recent victory for Quinn Emanuel makes articulate that they might, so long as the attorneys' work includes some professional person judgment.

The takeaway from this decision comes with two words of caution, however. First, as in Skadden, the decision is subject to entreatment. It is difficult to predict whether the fact that the 2d Excursion and then recently weighed in on the exempt status of contract attorneys (in Skadden) will brand information technology more probable or less likely to practice so again in this case. Second, in assessing what constitutes the "practice of law," both decisions—Skadden and Quinn Emanuel—looked to definitions from the state in which the given plaintiff was licensed to practice. Both land's definitions included the exercise of legal judgment within their definitions. For states where the definitions vary, the assay may vary every bit well.

bradleyparbitt.blogspot.com

Source: https://www.wagehourlitigation.com/misclassification/nothing-new-doc-review/

Share this post