Co-authored by Kat Jugo and Kevin Young
The lawyers in our readership are quite familiar with the fact that, as a general matter, practicing attorneys are not entitled to overtime pay under the FLSA. But does that exempt status change when an attorney is retained only to review and flag documents? No it does not, per a decision issued last week by a federal judge in New York.
The case, Henig v. Quinn Emanuel, et al., was filed by a licensed attorney who was employed by a staffing agency. Through the agency, the attorney was placed at Quinn Emanuel, an international law firm, for a two-month document review project. There, he was instructed and trained to review documents and apply tags to indicate whether they were: (i) responsive; (ii) privileged; (iii) confidential; and/or (iv) “Key” or “Interesting.”
In March 2013, the attorney filed suit in New York’s Southern District, claiming that he was misclassified as exempt from the overtime requirements of the FLSA and the New York Labor Law. After limited discovery, Quinn Emanuel and the staffing agency moved for summary judgment, arguing that the attorney was properly classified under the professional exemption. That exemption applies to various professionals, including, as a general matter, lawyers who (i) hold a license permitting the practice of law, and (ii) are engaged in the practice of law.
The attorney claimed that he was misclassified because he was not engaged in the practice of law. He asserted that his review work was rote and automated, and that it did not require him to exercise legal judgment. For example, he alleged that while reviewing a document for privilege, he was simply identifying whether it was authored, sent, or received by an attorney. Such work, he argued, did not require legal judgment and, therefore, did not constitute the practice of law.
The court disagreed and granted summary judgment to Quinn Emanuel and the staffing agency. Unmoved by the fact that document review may sometimes be routine or tightly restrained, the court found that the attorney exercised at least a modicum of legal judgment. Such judgment included, for example, his decisions to tag certain documents as “Key,” as well as his comments on the potentially privileged nature of other documents. For instance, the attorney testified that he tagged a document as “Key” because “it didn’t seem like something that should be buried.”
The ruling comes on the heels of a less than favorable Second Circuit ruling in Lola v. Skadden Arps, et al., a similar case filed by a contract attorney. The district court decision in that case, which we wrote about just over a year ago, dismissed the plaintiff’s claims on similar grounds, albeit pursuant to a Rule 12(b)(6) motion to dismiss (rather than a Rule 56 motion for summary judgment). Unfortunately, that decision was later vacated and remanded by the Second Circuit, which found that document review does not per se constitute the practice of law, and the plaintiff’s claim that he did not exercise any legal judgment was enough to survive a motion to dismiss.
If the story had ended with the Second Circuit’s decision in Skadden, then law firms in New York, Connecticut, and Vermont would be left to wonder whether courts might uphold an exempt classification for document review attorneys. This recent victory for Quinn Emanuel makes clear that they might, so long as the attorneys’ work includes some professional judgment.
The takeaway from this decision comes with two words of caution, however. First, as in Skadden, the decision is subject to appeal. It is difficult to predict whether the fact that the Second Circuit so recently weighed in on the exempt status of contract attorneys (in Skadden) will make it more likely or less likely to do so again in this case. Second, in assessing what constitutes the “practice of law,” both decisions—Skadden and Quinn Emanuel—looked to definitions from the state in which the given plaintiff was licensed to practice. Both state’s definitions included the exercise of legal judgment within their definitions. For states where the definitions vary, the analysis may vary as well.