Can You Do Doccument Review Without a License

Co-authored past Kat Jugo and Kevin Young

The lawyers in our readership are quite familiar with the fact that, equally a full general matter, practicing attorneys are not entitled to overtime pay nether the FLSA. But does that exempt condition alter when an attorney is retained but 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 v. Quinn Emanuel, et al., was filed by a licensed attorney who was employed past a staffing bureau. Through the agency, the attorney was placed at Quinn Emanuel, an international law house, for a 2-calendar month document review project. There, he was instructed and trained to review documents and use tags to signal whether they were: (i) responsive; (two) privileged; (iii) confidential; and/or (iv) "Key" or "Interesting."

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

The attorney claimed that he was misclassified considering he was not engaged in the practice of police. 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 declared that while reviewing a document for privilege, he was simply identifying whether it was authored, sent, or received by an attorney. Such work, he argued, did non require legal judgment and, therefore, did not institute the exercise of law.

The courtroom disagreed and granted summary judgment to Quinn Emanuel and the staffing agency. Unmoved past the fact that document review may sometimes be routine or tightly restrained, the court found that the attorney exercised at least a modicum of legal judgment. Such judgment included, for example, his decisions to tag certain documents as "Key," besides as his comments on the potentially privileged nature of other documents. For example, the attorney testified that he tagged a document as "Cardinal" because "information technology didn't seem like something that should exist cached."

The ruling comes on the heels of a less than favorable 2nd Circuit ruling in Lola v. Skadden Arps, et al., a similar example filed by a contract attorney. The district court decision in that example, which nosotros wrote most just over a twelvemonth ago, dismissed the plaintiff's claims on like grounds, admitting pursuant to a Rule 12(b)(vi) move to dismiss (rather than a Dominion 56 move for summary judgment). Unfortunately, that conclusion was later vacated and remanded by the 2d Circuit, which found that certificate review does non per se constitute the practice of law, and the plaintiff's claim that he did not exercise any legal judgment was plenty to survive a motion to dismiss.

If the story had ended with the 2nd Circuit's conclusion in Skadden, then law firms in New York, Connecticut, and Vermont would be left to wonder whether courts might uphold an exempt classification for document review attorneys. This contempo victory for Quinn Emanuel makes articulate that they might, so long as the attorneys' piece of work includes some professional person judgment.

The takeaway from this decision comes with 2 words of caution, still. Outset, equally in Skadden, the determination is field of study to appeal. Information technology is difficult to predict whether the fact that the Second Circuit so recently weighed in on the exempt status of contract attorneys (in Skadden) will get in more probable or less likely to do and so over again in this case. Second, in assessing what constitutes the "practice of law," both decisions—Skadden and Quinn Emanuel—looked to definitions from the country in which the given plaintiff was licensed to do. Both state's definitions included the exercise of legal judgment within their definitions. For states where the definitions vary, the assay may vary as well.

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

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