Contract Attorney V. Machine: Document Review Not Practice Of Law

An interesting decision of the United States Court of Appeals for the Second Circuit concludes that document review is not the practice of law under the facts of the case.

The litigation involves a contract attorney suing Skadden Arps and Tower Legal Staffing under the Federal Labor Standards Act

Lola, a North Carolina resident, alleges that beginning in April 2012, he worked for Defendants for fifteen months in North Carolina. He conducted document review for Skadden in connection with a multi‐district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.

Holding

We agree with the district court that: (1) state, not federal, law informs FLSA’s definition of “practice of law;” and (2) North Carolina, as the place where Lola worked and lived, has the greatest  interest in this litigation, and thus we look to North Carolina law to determine if  Lola was practicing law within the meaning of FLSA. However, we disagree with  the district court’s conclusion, on a motion to dismiss, that by undertaking the  document review Lola allegedly was hired to conduct, Lola was necessarily “practicing law” within the meaning of North Carolina law.

The court explains

The district court erred in concluding that engaging in  document review per se constitutes practicing law in North Carolina. The ethics  opinion does not delve into precisely what type of document review falls within  the practice of law, but does note that while “reviewing documents” may be  within the practice of law, “[f]oreign assistants may not exercise independent 10 legal judgment in making decisions on behalf of a client.” N.C. State Bar Ethics 11 Committee, 2007 Formal Ethics Op. 12. The ethics opinion strongly suggests that  inherent in the definition of “practice of law” in North Carolina is the exercise of at least a modicum of independent legal judgment...

The gravamen of Lola’s complaint is that he performed document review  under such tight constraints that he exercised no legal judgment whatsoever—he  alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion  to dismiss, we find that Lola adequately alleged in his complaint that he failed to  exercise any legal judgment in performing his duties for Defendants. A fair  reading of the complaint in the light most favorable to Lola is that he provided  services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a  machine cannot be said to engage in the practice of law.

Thanks to a faithful reader for sending this opinion. (Mike Frisch)