Last year we wrote about the Lola v. Skadden Arp case wherein contract attorney, David Lola, brought suit under the Fair Labor Standards Act (“FLSA”) for overtime pay. (See When Do Contract Attorneys “Practice Law”? and What Exactly is The Practice of Law). In or around December 16, 2015, the Lola case was settled and, on December 22, Judge Richard Sullivan (SDNY) approved the settlement, which called for $75,000 to paid to named plaintiff David Lola and two other contract attorneys placed at Skadden Arp.
The settlement, however, left unresolved the issue shared between the Lola case and the Henig v. Quinn Emanuel Urquhard & Sullivan (13-cv-1432) case, which had been pending before the Honorable Ronnie Abrams. Namely, whether some legal work – like document review – is so routine that it cannot be considered the practice of law.
The Henig suit stems from two months of work Mr. Henig did in 2012 as a temporary attorney. William Henig – who received $35/ hour for the work performed – sought overtime pay from Quinn Emanuel under the FLSA saying he reviewed more than 13,000 documents to assess their relevance to a litigation and whether the documents were considered privileged or confidential. Under the FLSA and New York Labor Law, law firms are exempt from paying overtime to licensed lawyers engaged in legal work who put in more than 40 hours a week. Henig, however, argued – much like Lola before him – that he was not engaged in the practice of law as he was not required to exercise any legal judgement. Rather, he was engaged only in the mundane task of “tagging” documents during a large scale document review. More specifically, Henig claimed that after a power point orientation all he had to do was assess whether a document was responsive or not responsive based solely upon a chart provided to him by Quinn Emanuel. Southern District Judge Abrams, however, granted summary judgment to Quinn Emanuel commenting that, “Not all [large scale document review projects are] law at its grandest but all of it is the practice of law. Mr. Henig was engaged in that practice.” She noted that part of Henig’s role in reviewing documents was to assess not only responsiveness to a given discovery demand, but to flag for further review a document that had any possibility of being privileged. Judge Abrams also noted that the orientation presentation instructed the contract attorneys to look for interesting and hot documents that are “important” to the case and “documents that would be helpful in depositions or briefs should be flagged.” “The presentation indeed uses language that anticipates the need for legal judgment, particularly with regard to privilege, which the presentation acknowledges is ‘tricky’ and ‘includes a lot of gray areas’.”
Notwithstanding persuasive positions during oral argument, Abrams dismissed the 2013 lawsuit seeking overtime pay from Quinn Emanuel, finding that the work of contract attorney William Henig, while perhaps a bit dull, qualifies as the practice of law. In fact, the Judge stated, “plaintiff’s tagging history and his other descriptions of his role on….the project…confirm that his job involved more than the largely mindless task that would result from following the [Quinn Emanuel] instructions to the letter…In particular, plaintiff’s use of the deliberative process privilege and ‘key’ tags on certain documents…make clear that plaintiff’s work…involved the type of professional judgment necessary to be engaged in the practice of the law.”
Both lawsuits were closely followed by the industry and students alike. Indeed, firms were interested in the outcomes as contract attorneys are increasingly used as a low-cost way to tackle massive document reviews obligations thanks to the ever growing volume of electronically stored information. Moreover, young graduates were eager to see the outcome given that a ruling that document review is not the practice of law could result in law firms hiring anyone to do the work, making competition for these positions even more acute.