Appeals Court Revives Temp Attorney’s Overtime Lawsuit Against Skadden

July 23, 2015, 6:24 PM

The 2nd U.S. Circuit Court of Appeals has revived an overtime wages lawsuit filed by contract attorney David Lola against Skadden, Arps, Slate, Meagher & Flom and legal staffing firm Tower Legal Services.

The ruling, issued Thursday and written by Judge Rosemary S. Pooler, sets the stage for Lola to proceed in the Southern District of New York.

Lola, a contract attorney in North Carolina, filed the complaint in July 2013, alleging that Skadden and Tower failed to pay him overtime wages when he worked for 15 months on multidistrict litigation in the Northern District of Ohio beginning in April 2012. U.S. District Judge Richard Sullivan had dismissed the lawsuit in September 2014.

Despite routinely working more than 40 hours a week, he was paid $25 an hour, the same rate for any of the hours he worked, his lawsuit alleged.

Skadden and Tower moved to dismiss the complaint, claiming that under the Fair Labor Standards Act, licensed attorneys engaged in the practice of law are exempt from overtime rules.

Lola, on the other hand, said the type of work that he performed — document review that entailed checking the accuracy of a predictive coding technology — did not constitute the practice of law because it didn’t require legal judgment.

When dismissing the case last September, Sullivan had said that “the Court is not persuaded that the exercise of legal judgment and discretion is asine qua nonof legal practice,” or, in other words, that engaging in the practice of law necessitated the application of legal judgment.

Judge Pooler on Thursday, however, said that the federal appeals court disagreed and remanded the case for further proceedings. “The district court erred in concluding that engaging in document review per se constitutes practicing law in North Carolina (where Lola works).”

Pooler pointed to oral arguments earlier this year: Both parties, she said, had agreed that when an individual undertakes tasks while reviewing documents in discovery that could otherwise be performed entirely by a machine, “it cannot be said to engage in the practice of law.”

“We find that accepting the allegations as pleaded, Lola adequately alleged in his complaint that his document review was devoid of legal judgment such that he was not engaged in the practice of law, and remand for further proceedings.”

Maimon Kirschenbaum, a lawyer for Lola, said: “We think this hopefully will open the door for contract attorneys to assert their rights with respect to money owed to them, and to get money paid to them in the future.”

The ruling also paves the way for proceedings to continue in a separate but similar lawsuit brought by another contract attorney, William Henig, against the law firm Quinn Emanuel Urquhart & Sullivan and Document Technologies.

That case, which essentially mirrored Lola’s claims about overtime wages and was filed by a plaintiff represented by the same law firm, has been on hold since last fall pending the outcome of Lola’s appeal.

“We hope law firms start paying attention,” said Kirschenbaum.

Lawyers for Skadden and Tower did not respond to a request for comment.

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