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SDNY Rejects Contract Attorney’s Overtime Claim, Finding That He Practiced Law During Document Review

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Posted on January 15th, 2016

In Henig v. Quinn Emanuel Urquhart & Sullivan, LLP et. al. Case No. 13-1432 (S.D.N.Y., Dec. 30, 2015), a contract attorney filed suit against law firm Quinn Emanuel for FLSA violations regarding alleged failure to comply with overtime laws for temporary document review work. Plaintiff sued Defendants after reviewing nearly 13,000 documents for Defendants as a contract employee, claiming that his work did not fall under the purview of “practice of law” and therefore was covered by the FLSA overtime provisions (which do not cover attorneys engaged in the practice of law).

The court discussed whether Plaintiff’s job rose to the level of “practice of law” by examining his tasks, which consisted of reviewing documents for clients to determine whether relevancy, responsiveness, privilege, and confidentiality. Defendants provided Plaintiff with a strict set of parameters for coding documents as responsive, privileged, work product or confidential. Regarding privilege, for example, Plaintiff had to determine whether a document constituted communication from an attorney to the client but had no discretion to review whether the communication constituted legal advice. Plaintiff stated claimed that he used none of his own judgment in making the decisions regarding these documents but simply followed Defendants’ instructions.

The court disagreed, concluding that Plaintiff did use independent judgment in performing the work. The parameters provided to him by Defendants anticipated the need for legal judgment, as Plaintiff had to determine whether documents were responsive, privileged or confidential. The materials provided to Plaintiff by Defendant stated that privilege is “tricky” and has “a lot of gray areas” which the court held indicated a need for legal judgment. Plaintiff did not perform work that could have been performed by a machine, the court opined; rather, he had to make small judgments and decisions on his own. Plaintiff argued that it amounted to guesswork, but the court rejected that argument, pointing to a specific example of a document he tagged as a key document because it “didn’t seem like it should be buried,” a clear showing of judgment, according to the court. After examining Plaintiff’s work, the court determined that he did practice law in reviewing and tagging the documents and dismissed Plaintiff’s FLSA violations claims.

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