On July 23, 2015, the US Court of Appeals for the Second Circuit addressed the question whether contract attorneys hired by a law firm to review documents were "practicing law." Lola v. Skadden, Arps, Slate, Meagher, & Flom LLP , No. 14-3845 (2d Cir. Jul. 23, 2015). The plaintiff, on behalf of a class of similarly situated individuals, brought a Fair Labor Standards Act (FLSA) claim against the law firm and Tower Legal Staffing (Tower) alleging that they should have received overtime wages for any time spent reviewing documents over forty hours a week. The law firm and Tower argued that an FLSA exemption applied because the class was engaged in the practice of law.
The Second Circuit disagreed. Looking to North Carolina law to determine what it means to "practice law," the court relied on a North Carolina ethics opinion that included reviewing documents among a list of services that could be performed by legal support staff abroad: "The ethics opinion strongly suggests that inherent in the definition of 'practice of law' in North Carolina is the exercise of at least a modicum of independent legal judgment." Because the plaintiff alleged that the class reviewed the documents "under such tight constraints that [they] exercised no legal judgment whatsoever" and essentially "provided services that a machine could have provided," the Second Circuit vacated the district court's dismissal of the case and remanded it for further proceedings.