I have been following this protracted saga for some time and there is another chapter now being written. The law firm of Skadden Arps is being sued in a Fair Labor Standards Act collective action by lawyers claiming they were not doing legal work because all they did was document review. In argument before the Second Circuit Court of Appeals, the firm argued that the theory that document review work was not “practicing law” was contradicted by the FLSA and, more importantly, common sense. The case is entitled Lola v. Skadden Arps Meagher Slate & Flom LLP and was argued in the Second Circuit.
The federal district court dismissed the case in September 2014. The district court Judge found that Lola was exempt from overtime under the professional exemption as a licensed attorney practicing law. The plaintiff argued to the Court that “mechanical document review” was not the practice of law because he did not have to use his legal knowledge, skill or training. Lola also contended that the district court erred by applying the definition of practicing law in North Carolina and urged that the Second Circuit to adopt a “federal definition” for what qualifies as the practice of law.
The FLSA professional exemption applies to any employee with a “valid license” and one who is “actually engaged in the practice thereof.” The firm argued that neither the USDOL nor any other federal appellate court has sought to define what “practicing law” meant and contended that the definition of the practice of law in the jurisdiction where the work was performed should control. The firm emphasized that the North Carolina State Bar has acknowledged that document reviewis legal work.
The firm noted that document review work is extremely important to a case and that a case could be dismissed if the document review work is done poorly or mistakenly. The firm added, as a finishing touch, that attorney fees are given for document review work performed by such contract lawyers.
I have always thought that the plaintiffs would lose. I know that document review is important because it touches on issues of relevance and, more importantly, privilege, which only a “lawyer” would have the training and insight to make judgment calls on what is/is not privileged or relevant. This case will have huge ramifications throughout the legal world because document review lawyers are used throughout the field.
My gut tells me that the saga is not to end with the Second Circuit ruling, whenever that may issue. The US Supreme Court will, I imagine, ultimately get involved.