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It's not exactly the glamorous legal work shown on "The Good Wife" -- or even "Night Court" -- but document review makes up a fair share of many attorneys' work. In fact, document review is one of the great unifiers of the legal profession. Highly paid associates at BigLaw firms often slog through tedious document review just like their poorly paid contract attorney counterparts.
But is document review even the practice of law? Not according to one lawyer, who is arguing that his year plus of doc review for Skadden was so rote and mechanical it couldn't possibly be considered legal work -- and thus, he should be entitled to significant overtime pay.
Before suing for overtime pay, attorney David Lola worked for fifteen months doing document review for Skadden. He was making $25 an hour putting in 45 to 55 hours a week without ever receiving overtime. (Think about that the next time an associate complains about their bonuses.) Under the Fair Labor Standards Act, he would be entitled to time and a half for those extra hours, except that "bona fide professional" work, such as the practice of law, is exempt from the Act's requirements.
Lola's doc review position was fairly typical. His work involved, in its entirety, looking at for predetermined search terms in discovery documents, placing documents in predetermined categories and sometimes redacting sections. The work sounds more like a professional "ctrl + f" than the practice of law, but it was legal enough for the Southern District of New York, who ruled against him.
There's a surprising amount of debate as to whether document review is actually the practice of law. On the one hand, some view the practice of law as flexible enough to encompass both high level legal problem solving and more administrative tasks. The district court in Lola's case came down on this side, noting the simplistic nature of his work but describing it as "unequivocally the practice of law."
Many attorneys have taken issue with the rote nature of the work, however. Solo practitioner Mirriam Seddiq, who once worked in document review, attests that "there is no actual lawyering involved in document review," according to the ABA Journal.
For lawyers such as Lola, however, neither answer can be fully satisfying. On the one hand, if doc review is not the practice of law, Lola will be entitled to a fair amount of back pay. For doc review lawyers who aren't already getting overtime, that may be the closest they get to an annual bonus. On the other hand, if document review is not the practice of law, there's no reason to hire those contract lawyers in the first place. Heck, why not have high school students do it? Or robots?
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