The success or failure of a proposed class action filed Thursday in New York federal court against Skadden, Arps, Slate, Meagher & Flom and Tower Legal Staffing hinges on a seemingly simple question: Is working on a document review considered practicing law?
It's a question that New York plaintiffs lawyer D. Maimon Kirschenbaum has been trying to have a court answer since 2010, when he filed his first of three suits claiming document reviewers should be paid overtime under the federal Fair Labor Standards Act because the routine nature of the work requires no legal analysis whatsoever and therefore qualifies the reviewers as nonexempt employees under the law.
Kirschenbaum's first such suit, brought against plaintiffs firm Labaton Sucharow, settled in 2010 for undisclosed terms. Quinn Emanuel Urquhart & Sullivan and legal staffing agency Providus—the targets of his second FLSA suit against a law firm, which was filed in New York federal court in March—have requested that the case be dismissed based on the argument that document review is inarguably legal work, "because an attorney properly performing such review necessarily brings his training, knowledge, and judgment to bear on the task."
Kirschenbaum's latest client is David Lola, a University of San Diego School of Law graduate who became a lawyer in California in 2004. Now living in North Carolina, Lola began working on a document review for Skadden in April 2012 for an unspecified multidistrict litigation in the Northern District of Ohio. He routinely worked 45–55 hours a week, according to the suit, and received base pay of $25 an hour even for time in excess of 40 hours a week, for which he thinks he should have been paid time and a half.
The complaint, filed on behalf of Lola and others "similarly situated," takes pains to place document review outside the practice of law, describing the assignment as requiring Lola to follow "extremely detailed protocols" that did not allow or require him to "exercise any judgment."
Kirschenbaum, known to New York restaurateurs for his frequent lawsuits challenging the dining industry's adherence to wage and hour laws, says the suits are a response to what he sees as law firms' practice of taking advantage of a legal market overrun with out-of-work law school graduates.
"They're exploiting the prestige of the profession to screw a lawyer out of his rightful wages," says Kirschenbaum, a partner at Joseph & Kirschenbaum. "I think there's a general sense that if we're a law firm and we're doing it, then it's legal."