Last year, we wrote about David Lola, a document review attorney who sued Skadden, Arps and his placement agency. He alleged that doc review is not actually legal work, largely because you expend no independent legal decision-making to do it, and that doc reviewers are therefore eligible for overtime. He won that case (and another similar lawsuit was settled), but these are somewhat Pyrrhic victories for the profession as a whole: you can get overtime for your doc review job, but only by admitting that doc review is not the practice of law. It is the worst sort of occupational Catch-22 ever.
A similar dilemma faces those attorneys seeking to organize document reviewers. The United Contract Attorneys have taken some small-scale collective actions that we associate with traditional unions, like asking for higher wages on particularly in-demand document reviews. They have also done a lot of work organizing over the overtime issue, but it turns out that, although more money sounds great, it is tough for a lot of us to agree that our jobs are not legal work.
“Would I have liked to get overtime pay? Sure. Who wouldn’t?” wrote Bethany LaFave, who worked for 10 years doing document review in Chicago. “But not if it is at the expense of saying what I have done for a decade isn’t legal work.” Doing so, she feared, would open up the profession to anyone — meaning attorneys couldn’t find jobs at all.
That is a totally legitimate fear. Computers are getting scary good at some types of document review., which makes depressingly clear that you do not need to be an attorney to do the task. Heck, we might all be replaced by robots soon. So, arguing you aren’t doing legal work might just be classifying you right out of a “lawyer required” job description. Great job figuring out you could bargain collectively for better wages about two years before the end of doc review for humans.
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