Tuesday, February 21, 2012

Discovery Service Companies And Unauthorized Practice

From the web page of the District of Columbia Bar:

The District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law has issued Opinion 21–12, which addresses the applicability of Rule 49 in relation to discovery services companies.

Rule 49 provides that “No person shall engage in the practice of law in the District of Columbia … unless enrolled as an active member of the District of Columbia Bar,” or unless they fall under a specific exception. In response to inquiries about how Rule 49 encompasses discovery services companies, the CUPL makes clear that such a company must provide a disclaimer accompanying any advertisements that explicitly warns that the company is not authorized to practice law in the District of Columbia.

Discovery services companies are prohibited from providing misleading or broad statements claiming they can provide comprehensive discovery services, which include the administrative hiring and supervising of document review lawyers. Additionally, these services companies are not permitted to provide legal advice to their clients or promote any lawyers on their staff as authorized to practice law in the District of Columbia.

The CUPL offers the following principles, which dovetail previous opinions:

  • Rule 49’s prohibition against unauthorized practice does not apply to discovery services companies located outside the District of Columbia and which conduct documents reviews outside the District. However, the rule’s prohibition against holding out applies to companies that use a Washington, D.C., address or advertise that they are available to assist with discovery projects in the District.
  • When a company provides lawyers for document review in the District, the final selection of attorneys to staff the review must be made by a D.C. Bar member who has an attorney–client relationship with the client. The D.C. Bar member must supervise the legal work, and the company must not try to control an attorney’s professional judgment.
  • The company may handle the administrative aspects of hiring and supervising document review lawyers, such as interviewing individuals to create a roster of available lawyers, obtaining working space and equipment for them, ensuring that they work a regular day and at an acceptable pace, providing salary and benefits, and doing “similar supervisory activities that do not require the application of professional legal judgment.”
  • Companies do not violate Rule 49 when hiring a person to perform work that does not involve the application of legal knowledge, training, or judgment, provided that the individual is not held out or billed as a lawyer.
  • Discovery services companies may not provide legal advice to their clients, nor may they hold out themselves or any lawyers on their staff as authorized to practice law in the District.

For more information, review Opinion 21-12: Applicability of Rule 49 to Discovery Services Companies.

(Mike Frisch)

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