Temp Attorney Sues Law Firm for Overtime Pay

As in many industries and professions looking to reduce costs, law firms are increasingly hiring temporary lawyers through legal staffing agencies to apply their hard-won and expensive legal expertise, but at much lower rates. The considerable resentment of the temp lawyers about the pay they receive has resulted in - guess what? - a lawsuit.

The case hinges on the work some temps are doing, which, in this case, it is claimed, does not require the application of legal knowledge or judgment and should therefore qualify for overtime.

In the 'be careful what you wish for' category, this will probably spur the accelerated use of algorithms and computers to do that work. JL

Sara Randazzo reports in the Wall Street Journal:

The case pits Skadden against a contract attorney hired by a legal staffing agency to review documents for $25 an hour on a Skadden case. Mr. Lola’s counsel told the court that the definition of law practice should include “some engagement of legal judgment or application of legal knowledge,” which he says his client didn’t need for his $25-an-hour gig.
A lawsuit against legal heavyweight Skadden, Arps, Slate, Meagher & Flom LLP is testing whether some purportedly professional work might in fact be eligible for overtime.
The case pits Skadden against a contract attorney hired by a legal staffing agency to review documents for $25 an hour on a Skadden case.
Under federal labor laws, licensed lawyers can’t earn overtime pay for work in excess of 40 hours a week if what they are doing is considered legal work. But the plaintiff, David Lola, says he deserves overtime pay because the tasks he did were so basic they shouldn’t qualify as practicing law.
The case could have a far-reaching impact, legal observers say. Contract attorneys are hired on a short-term basis across the legal profession to review reams of documents during the initial phases of litigation and investigations, and many feel they are underpaid.
Mr. Lola’s lawyer, D. Maimon Kirschenbaum, has another attorney overtime case pending as well, and contract attorneys are using Mr. Lola’s case as a rallying cry to raise awareness of what some see as unfair working conditions for document reviewers.

Valeria Gheorghiu attended Friday’s arguments along with other members of United Contract Attorneys, a group that is working to improve the pay and benefits of document reviewers. Ms. Gheorghiu said Saturday that contract lawyers often work shoulder-to-shoulder in crowded rooms, sometimes without access to phones or the Internet out of privacy concerns by clients. Some work sites prohibit talking, she said, while others post lists of rules dictating what kind of food can be eaten in the review rooms and when bathroom breaks can be taken.
“We should be treated as working professionals,” said Ms. Gheorghiu, a workers’ rights lawyer by training who started doing foreign-language document review in 2012 after injuries from a car accident made it too difficult to keep up her practice. Ms. Gheorghiu said the current system can be “demoralizing,” particularly for law school graduates saddled with debt who can’t find a way out of the contract attorney cycle.
Such positions typically pay around $25 or $30 an hour and don’t provide benefits—far below the $160,000 starting salaries for many full-time junior lawyer jobs.
Mr. Lola sued Skadden and legal staffing agency Tower Legal Solutions in New York federal court in July 2013, alleging he deserved overtime pay for the extra hours he worked on a document-review assignment in North Carolina. Mr. Lola said his job involved using predetermined search terms to sort documents into categories with the assistance of prompts by a computer, and to occasionally redact words.
“The legal services industry has for years been exploiting individuals with law degrees looking for short-term work,” the suit said.
A Tower Legal representative declined to comment Friday. Skadden representatives didn’t respond to requests for comment.
A district court judge dismissed the case in September, ruling that the work Mr. Lola did qualified as practicing law under North Carolina guidelines. “As junior associates at law firms well know,” U.S. District Judge Richard Sullivan in New York wrote in the decision, tasks like confirming citations and looking for typos “are the bread and butter of much legal practice.”
Mr. Lola appealed, and on Friday, a three-judge panel in the Second U.S. Circuit Court of Appeals heard arguments from both sides. The appellate panel seemed sympathetic to Mr. Lola’s case Friday.
If Mr. Lola’s work truly was as basic as he said it was, asked Judge Raymond Lohier Jr., and could nearly be replaced by a computer, “How in the world is that the practice of law?”
The work was more complicated than that, said Brian Gershengorn of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., who argued for Skadden and Tower. “Lola can’t take away the fact that he’s trained as a licensed attorney,” Mr. Gershengorn said.
The judges also pressed Skadden’s counsel on why there shouldn’t be a federal standard for what qualifies as the practice of law, as Mr. Lola suggests.
Mr. Lola’s counsel, Mr. Kirschenbaum, told the court that he thinks the definition of law practice should include “some engagement of legal judgment or application of legal knowledge,” which he says his client didn’t need for his $25-an-hour gig.
Speaking after the arguments, Mr. Kirschenbaum said a ruling in favor of Mr. Lola would “open the gates for people to get their wages.”
Some legal observers say, however, that a win for Mr. Lola could lead to a decrease in available positions if law firms and corporations choose to bring the work in house or hire paralegals or others without a law degree to do the work instead.
Mr. Lola’s suit isn’t the first time courts have been asked to weigh in on overtime pay for lawyers.
A similar suit Mr. Kirschenbaum brought against Quinn Emanuel Urquhart & Sullivan LLP and staffing company Providus has been on hold until the Second Circuit rules in the Skadden case.
In California, a state appellate court ruled in 2011 that a law school graduate who hadn’t yet passed the bar examination to become a licensed lawyer still wasn’t eligible for overtime pay for work he did as a law firm clerk.