I have blogged about this matter several times, all the while applauding the lower court decision and employer’s legal position in the case, as I believed what these temporary lawyers were doing did constitute the practice of law. The Second Circuit has now disagreed. The Court has ruled that document review work does not equal, automatically, the practice of law. The case is entitled Lola v. Skadden Arps Meagher Slate & Flom LLP in the Second Circuit Court of Appeals.
The Second Circuit agreed with the district Judge that the state law of North Carolina, where Lola worked, was the proper law to analyze, but concluded that the judge erred when he ruled that document review was “per se” the practice of law. The Court noted that 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.”
Thus, the law firm’s motion to dismiss victory was overturned. There will now have to be the usual discovery and subsequent motions (e.g. summary judgment?) focusing on the question (as urged by the plaintiff) whether the “mechanical” document review work he performed was not the practice of law because it didn’t require any legal knowledge, skill or training, according to the plaintiff.
The district court Judge concluded that as any kind of document review was deemed the practice of law in North Carolina, the claim had to be dismissed. The Second Circuit disagreed and relied upon a North Carolina State Bar ethics opinion that stressed that there had to be “the exercise of at least a modicum of independent legal judgment” for it to be considered legal work. Judge Poole, writing for the Court, noted that “moreover, many other states also consider the exercise of some legal judgment an essential element of the practice of law.”
Maybe an en banc hearing is necessary for the “right” result to issue? I believe that document review of the kind at issue here, does involve some exercise of discretion and independent judgment. Such document review does involve some level of and demand for the worker being required to “think like a lawyer.”
I think this decision is wrong. Maybe it will now go to trial? Maybe it will now be settled, leaving the issue for another court and another day?
Maybe it will end up in the U.S. Supreme Court…