On January 12, 2012, the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law issued a significant opinion regarding the use of “discovery service companies” to provide outsourced document review and other tasks. Opinion 21-12 builds on the Committee’s prior opinions 6-99 (holding D.C. Court of Appeals Rule 49 applicable to legal staffing services) and 16-05 (holding D.C. Court of Appeals Rule 49 applicable to contract attorneys).
In Opinion 21-12, the Committee noted that companies seeking to assist law firms and legal service organizations have significantly expanded their services— and how they advertise them—since it last examined the issue some seven years earlier. The Committee noted that numerous discovery service companies now describe themselves as providing a broad range of tasks that could be interpreted as providing legal services. The Committee expressed concern about the way that some of these companies have described some of their employees as “seasoned litigators” and have highlighted their expertise in “practice areas” such as intellectual property, patent litigation, and class action lawsuits.
To clarify the scope of permissible services that discovery assistance companies may provide, the Committee offered additional specific guidance. First, while D.C. Rule 49 applies only to companies located in the District of Columbia or document reviews conducted in D.C., a company that advertises its ability to assist with discovery projects in the District brings itself within the scope of Rule 49. Second, discovery service companies are barred by Rule 49 from making the final selection of attorneys to staff document review projects. While they are permitted to make these decisions for contract paralegals or law clerks, if the contract employee is held out or billed as a lawyer, the final decision to hire must be made by a member of the D.C. Bar who has an attorney-client relationship with the ultimate client. Third, broad promotional statements, such as “end-to-end solutions,” have the potential to create a misleading understanding of the services these companies can offer and should be avoided or, at a minimum, used only in connection with prominent disclaimers that the company is not authorized to practice law in the District of Columbia.
It remains unclear the extent to which other state bars will follow this opinion.