Two very
recent cases shine some – but not complete – light on this question. With the
evolution of the practice of law, contract attorneys are becoming more and more
prevalent in our profession.
Given the difficult job market, new law graduates
are frequently left to pursue contract attorney positions in order to repay
significant student loans.
In addition, the proliferation of document intensive
discovery, including electronically stored information, has led to the need for
significant man hours spent on document review projects. These are frequently
farmed out to contract attorneys.
This has led to many questions and significant
litigation regarding whether contract attorneys fall within the “professional
exemption” of the Fair Labor Standards Act. Two recent cases, Lola v. Skadden, Arps, 2015
U.S. App. LEXIS 12755 (2d Cir. July 23, 2015) and Henig v. Quin Emanuel, 2015 U.S. Dist. LEXIS 172823
(S.D.N.Y. December 30, 2015) are illustrative.
In Lola, the
Second Circuit reviewed the trial court’s grant of a motion to dismiss. The
Second Circuit relied heavily on how the state of North Carolina, which was the
applicable law, defined the “practice of law.” After reviewing North Carolina
law and the amount of restrictions that were alleged to be placed on the
contract attorney, the Second Circuit reversed the trial court. In doing so it
held:
The gravamen of Lola’s complaint is that he performed
document review under such tight constraints that he exercised no legal
judgment whatsoever – he alleges that he used criteria developed by others to
simply sort documents into different categories. Accepting those allegations as
true, as we must on a motion to dismiss, we find that Lola adequately alleged
in his complaint that he failed to exercise any legal judgment in performing
his duties for Defendants.
A fair reading
of the complaint in the light most favorable to Lola is that he provided
services that a machine could have provided. The parties themselves agreed at
oral argument that an individual who, in the course of reviewing discovery
documents, undertakes tasks that could otherwise be performed entirely by a
machine cannot be said to engage in the practice of law. We therefore vacate
the judgment of the district court and remand from further proceedings
consistent with this opinion.
Lola was decided on
May 29, 2015. Approximately seven months later, the Southern District of New
York addressed a similar case in Henig v. Quinn Emanuel. The
Plaintiff in Henig was hired to review nearly 13,000
documents while working 57-60 workweeks. He was compensated a flat $35 per hour
for all of this time. In Henig, the
trial judge granted summary judgment in favor of the law firm. It distinguished Lola largely by noting that New York and
North Carolina have different definitions for “practice of law.” Judge Abrams
of the Southern District of New York also found that the Henig Plaintiff seemed to exercise more
discretion than the Lola Plaintiff alleged.
It seems that the ultimate answer may come down to
whether contract attorneys are more analogous to lawyers or paralegals?
These cases do
not answer the question definitively. They do give some guidance. It appears
that these cases will turn on two issues: (1) how the applicable jurisdiction
defines the “practice of law” and (2) the amount of discretion – or lack
thereof – the contract attorneys receive on any given project.
This might be especially problematic for the employers
of contract attorneys, as the same contract attorney might exercise more
discretion on one document review project than on another. With that, we will
conclude with the following rosy thoughts from Judge Abrams in the Henig case:
“The history of the law, Oliver Wendell Holmes observed, ‘is the history of the
moral development of the race.’ But practicing lawyers – especially junior
attorneys at large firms – know that their jobs too often have less to do with
the development of the human race or the law than the tasks that are
necessarily repetitive in nature, modest in intellectual scope, and banal in
character.”
To learn more about the Gilbert Firm’s services,
please contact Tennessee wage and hour attorney Michael
Russell, or contact the firm to reserve your consultation. We maintain offices in
Nashville, Chattanooga, Memphis and Jackson.
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