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They are lawyers at big firms, but not quite. At many of the nation’s top law firms, the thankless, months-long task of reviewing boxes and boxes of documents in preparation for massive litigations falls primarily not to junior associates but to scores of lawyers hired on temporary contracts, usually for around $30 an hour. Many who do it say it is work that hardly requires the skill of a trained lawyer. Now, a number of them are asking not to be treated as such. Seattle firm Preston Gates & Ellis, whose name partner is the father of Microsoft Corp. founder Bill Gates, recently settled for $700,000 a class action suit seeking overtime pay and paid rest breaks for contract lawyers handling document review. Under the federal Fair Labor Standards Act, as well as similar state laws, professionals like lawyers are ineligible for overtime pay. But the Preston Gates contract lawyers argued that what they were doing at the firm did not constitute practicing law. “We felt strongly that the work these folks performed was routine,” said Martin S. Garfinkel, the Seattle lawyer who brought the case against Preston Gates under state law. Garfinkel said the plaintiff contract lawyers, who worked in the document analysis and technology group, had taken the position that practicing law would entail meeting and advising clients, appearing in court or drafting and creating documents, tasks not typically given to contract lawyers. “Even a summer associate, much less a law school graduate or first-year associate, does more work like drafting documents.” he said. Martha Dawson, the partner who heads the Preston Gates document group, said in a statement that the settlement was made for business reasons and did not change the firm’s position on the lawyers in the group. “It was and is our position that our [document analysis and technology group] attorneys are professional lawyers who provide legal services,” she said. “Preston Gates & Ellis LLP offers our clients a unique model for delivering high-quality document review and production in large-scale litigation, with a particular emphasis on discovery of electronic documents, in a highly cost-efficient manner. It has always been our position that work requires legal skill and judgment.” The issue of who is and who is not working as a lawyer has grown thornier as major firms across the country rely on large numbers of contract lawyers to handle the dreary but necessary work of plowing through documents, usually with the help of powerful software. At most firms, the world and work of these contract lawyers is kept separate from that of full-time lawyers. Though paralegals and secretaries often work closely with associates and partners, contract lawyers are often anonymous “coders” who attach numbers and stamps to track documents and whom full-time lawyers keep out of sight and out of mind. But they form an increasing proportion of major firms’ workforces. New York’s Paul, Weiss, Rifkind, Wharton & Garrison, a firm well known for its high-end, high-stakes litigation practice, has more than 50 so-called staff attorneys and many other staffers with law degrees working on document review. The firm has about 500 full-time partners, counsels and associates. Staff attorneys, whose jobs are non-partnership track, have a more supervisory role in document review, though they are still subordinate to associates. At Paul Weiss, staff attorneys are hired on three-month renewable contracts with salaries starting at $80,000 per year, compared to $125,000 for first- year associates. There are also a handful of senior staff attorneys. OVERTIME ISSUE The head of one agency that provides temporary lawyers to firms said the Seattle case would no doubt focus attention on the overtime matter, which she said has already been a topic of discussion. “Over the last few years, it has become more of an issue,” she said, noting that individual candidates for contract lawyer jobs have asked for overtime pay. Indeed, many top firms do pay overtime to contract lawyers engaged in document production. A Paul Weiss staff attorney said she did not receive overtime pay despite working as many as 12 hours a day. But she said she has worked with contract attorneys at Paul Weiss who do not have supervisory duties who did receive overtime. Alfred Youngwood, the chairman of Paul Weiss, disputed that description, saying that all lawyers — including staff attorneys — hired by the firm are considered lawyers and professionals not eligible for overtime pay. He said the firm employs several lawyer-paralegals, or paralegals with law degrees, to work on document production. Those employees, he said, receive overtime. There is no industry standard, however. One former Shearman & Sterling associate recalled that the contract lawyers he supervised at that firm were paid overtime. Now working as a contract lawyer himself at a different firm, the former associate said his current assignment pays $30 an hour with no overtime. The situation is complicated by the fact that most contract lawyers are paid by staffing agencies that contract with the firms. Ed Coughlin, a New York recruiter for Strategic Workforce Solutions, said agencies generally followed the firm’s lead with regard to overtime arrangements. He said he thought firms that agreed to pay overtime did so for competitive reasons rather than out of legal obligation. “This is a finite resource,” said Coughlin, referring to experienced document reviewers. Some agencies reach arrangements with firms for extra pay different from the standard time-and-a-half. A contract lawyer who recently completed a stint at Boston’s Bingham McCutchen said his agency, the Kelly Law Registry, paid a $5 per-hour bonus for every hour past 100 hours worked in a four-week period. But contract lawyers had to work a minimum of 180 hours in the same four weeks to qualify for the bonus. Standard pay, he said, was $28.50 an hour. He said he later learned the firm was billing his work out at $150 an hour. Philip Berkowitz, a partner in labor and employment law with the New York office of Nixon Peabody, said contract lawyers’ ability to generate high revenue relative to their cost was one reason firms were making increased use of them. At the same time, he said, many firms are uncertain about economic conditions and wary of taking on large numbers of new associates. LEGAL TRAINING As firms continue to rely on contract lawyers, he said, the issue of whether those lawyers should be paid overtime or otherwise considered non-professional employees would be an increasingly difficult one. Berkowitz agreed that firms frequently hire contract lawyers for tasks, especially document review, that non-lawyers like paralegals could handle. But he said firms often have a reasonable belief that such tasks could require legal training. “They’re doing it because they think they need legal analysis to properly comply with discovery requests,” he said. The problem arises, he said, when the analysis is rote or nonexistent. The Bingham McCutchen contract lawyer said that was the case with the document production work he was given. “I could have done this work out of college,” he said. “It’s monkey work.” He said a legal education was helpful but not essential in the beginning, when the document reviewers read the pleadings to understand what to look for. But for several months thereafter, he said, his education from a top-ranked law school went largely unused. He came to rely heavily on electronic database software to sort through the documents. Likewise, the former Shearman & Sterling associate said his document work was “legal work in only a broad sense” and “not intellectual at all.” He noted, though, that he had performed similar tasks as a first-year, albeit with more partner contact and with the promise of advancement. While all professionals occasionally engage in rote, uninteresting tasks, said Berkowitz, the frequent physical segregation of contract lawyers and the lack of advancement make their circumstances different from junior associates assigned similar tasks. ‘SECOND-CLASS CITIZENS’ Garfinkel said his clients’ status at Preston Gates might have been part of the case if it had gone to trial. “These people did feel like second-class citizens at the firm,” he said. “They were kept on a different floor. They weren’t invited to firm events.” The Paul Weiss staff attorney said associates and partners at the firm were respectful and professional but also fairly distant. “Something has to be going wrong for me to talk to someone higher up,” she said. The Bingham McCutchen contract lawyer said his interactions with full-time lawyers at the firm were polite but also illustrative of the hierarchy. “There is no give and take in terms of being colleagues,” he said. “There is a perception that you are a second-tier lawyer.” In terms of education and background, that is increasingly not the case. Some graduates of respected law schools work as contract lawyers to spend more time writing novels or raising families. But many well-credentialed candidates now frequently turn to contract work because they were let go from firms. The Bingham McCutchen contract lawyer said he had been laid off by another Boston firm and was still looking for a full-time job. The former Shearman & Sterling associate said he voluntarily left that firm to pursue other interests. When he tried to return to practice, contract work was all he could get. The Paul Weiss staff attorney said some highly qualified associates who had been laid off from prestigious firms in recent years had been promoted to full-time positions at Paul Weiss after starting as contract lawyers. But she said such promotions seemed to have ebbed. She said she herself was hoping to eventually land a full-time associate position but most likely at another firm. “It’s really difficult to distinguish yourself as a document reviewer,” said the former Shearman & Sterling associate, who said he continued to look for another job. “There aren’t many things you can do to get someone to say, ‘Good job!’” Katherine Frink-Hamlett, who runs her own contract attorney placement agency, said the profession seems to be heading toward the creation of a “tier of people who do this and only this.” She said she counsels recent law school graduates to try to find a different position, lest they be pigeonholed as document reviewers. But for experienced lawyers, she said, contract work would hopefully prove merely a means to make ends meet between jobs. The Bingham McCutchen contract lawyer agreed that the job paid the bills but he lamented the lack of advancement within the firm, in his career and in his skills. “For the most part, I didn’t get anything out of it,” he said. “My legal abilities are getting stale. This type of work doesn’t translate into marketable skills.” Despite his complaints, he said he was unsure whether overtime pay was a good idea if it required contract lawyers to eschew their identity as professionals. “It’s a tough line in the sand for me to draw,” he said. Berkowitz said lawyers’ pride in their image as professionals meant any broader effort to define lawyers as non-professionals was unlikely. But he said firms and their clients should take a closer look at the work of large teams of contract lawyers. With a greater degree of supervision, contract lawyers could be given more work, even within a large document production, that calls upon their legal training. “The fact that someone is employed as a temporary lawyer shouldn’t preclude someone from doing substantive work,” he said.

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