The contract attorney overtime case against Skadden, Arps / Tower Legal has a new twist

12 February 2014 – A big hat tip to Posse List member Matthew Green who has been following the Skadden/Tower Legal overtime suit. Matthew popped us a note and said:

A very interesting twist in the overtime case filed against Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates and Tower Legal Solutions. The named lead plaintiff contract attorney applied to Tower Legal for a new gig, prompting the staffing firm’s lawyers to allege that his description of his duties on the project at issue is inconsistent with his claim that he did not have the responsibilities of a lawyer. But the judge appears impatient with efforts by defendants to dismiss the case before discovery is complete.

Matthew cited an article from The American Lawyer which does a nice job summarizing the case:

In his suit, [the plaintiff] argues that he, and other document reviewers, should qualify under federal labor laws for overtime pay because the work they do does not constitute the practice of law. [Tower’s lawyer] insists that a resume entry detailing the very work at issue in his complaint—which he was hired by Tower to do for Skadden, Arps, Slate, Meagher & Flom—describes tasks that can only be considered the practice of law, including assisting with “quality control,” “privilege logging,” and “redactions.”

The court refused to allow Tower to request sanctions, saying in a court order that “the court sees no obvious inconsistency between the resume entry and any of the allegations made in the first amended complaint or any of the representations plaintiffs made to the court during previous proceedings.” Tower’s arguments “would not support a nonfrivolous motion for sanctions and are really addressed to the merits of the pending motion to dismiss.”

For The American Lawyer article click here.

The Posse List will weigh in on the issue next month. In all of the blog posts we have read about whether document review is/is not the practice of law, nobody has noted one issue: the admission to the practice of law without examination. Most jurisdictions will allow an attorney to be admitted to the practice of law in a state without examination if you meet certain requirements. One of the requirements is that you show “a description of your practice of law”.

Alas, there lies the rub for contract attorneys. In at least 18 jurisdictions … based on feedback from Posse List members attempting to waive into another jurisdiction without examination … Posse List members have received a notice from bar examiners that document review work is NOT the practice of law.

We are putting together facts and figures and we’ll have a more detailed post next month.