On December 30, 2015, Judge Ronnie Abrams of the United States District Court for the Southern District of New York, dismissed a class action seeking overtime pay for temporary attorneys, under contract with a staffing company, who performed document reviews for a law firm.

In Henig v. Quinn Emanuel Urquhart & Sullivan LLP, William Henig, a licensed attorney hired to do document reviews, claimed that he was entitled to overtime pay. Henig argued that in conducting reviews, he was told to follow strict instructions and "was not required to, could not, utilize any legal knowledge and/or judgment." Accordingly, he claimed he was not "engaged in the practice of law" and, therefore, not exempt from overtime pay under the Fair Labor Standards Act and New York Labor Law.

In the case, Judge Abrams found that junior attorneys often do work that is "repetitive," "modest in intellectual scope" and "banal" and that "not all of it is law at its grandest, but all of it is the practice of law." Because the facts showed that Henig exercised some legal judgment in doing his work, he was "engaged in the practice of law" andtherefore, fell within the exemption.

Judge Abram's decision was surprising in light of the recent decision of the United States Court of Appeals for the Second Circuitin a similar case brought by a temporary attorney performing document reviews on behalf of Skadden Arps. In Lola v. Skadden Arps, Slate, Meagher & Flom LLP, the Appeals Court held that temporary attorneys doing routine document reviews subject to strict instructions were not engaged in the practice of law¹ and were entitled to overtime pay. Howeverthe guidelines under which the attorneys worked were allegedly so strict that they did not allow for the exercise of any legal judgment. The case against Skadden Arps and legal staffing agency Tower Legal Solutions, was settled for $75,000, according to court reports.

Despite the dismissal of the Henig case, Plaintiff's counsel in both the Skadden Arps and Henig cases, D. Maimon Kirschenbaum, Esq. stated that he would not shy away from bringing more contract temporary attorney lawsuits in the future. He opined that Henig "did not involve the type of discretion that is the touchstone of the practice of law."

Best Practices for Staffing Companies
Staffing companies that provide temporary attorneys for document reviews and other seemingly routine work should work with their law firm clients to not overly limit the exercise of legal judgment and discretion by the temporary attorneys involved. It also is important to determine what state's law applies before deciding whether the attorneys in question are exempt from the payment of overtime.

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¹ In that case North Carolina was the site of the document review and North Carolina law applied.