Aug 212009
 

From time to time the legal blogosphere erupts into discussion about contract lawyering, or, more specifically, contract document review. And this week seems one of those times.

In American litigation there’s always a stage known as “discovery,” where parties request documents from each other. In commercial litigation these requests often result in voluminous productions of documents, which require review at least twice: once before it’s produced, to ensure that the documents being disclosed are responsive to those requests and also not privileged, and once when it is received by the requesting party to see if it is helpful to its case. Both reviews (though particularly the former) can be extremely labor intensive. While they used to be done in vast warehouses of bankers’ boxes, thanks to advancements in technology the reviews can now be done electronically, by clicking through documents on a computer screen. (On the flip side, however, this same technological innovation has also increased the workload, as the ease of emailing and electronic document creation has vastly expanded the universe of documents that need to be reviewed.)

So to handle the workload, many law firms turn to contract lawyers to help them. As I’ve written before, I think contingency work should be a perfectly legitimate way for licensed attorneys to make a living. In fact, I think contingency work should be a legitimate way for nearly everyone to make a living. Instead of employers having to guess at their workloads and permanently staff up in order to cover the busier periods, bearing all that overhead for salaries and benefits, they can bring on people as needed, who get paid more cash for their time in lieu of the stability and benefits of a permanent position. As long as the contractor prefers this arrangement — and many, for many reasons, do — everyone wins.

Or can win. But clearly not everyone does, and a few blogs have sprouted to lament the plight of the contract doc reviewer.
As someone who has done contract document review I sometimes follow these blogs in order to keep abreast on the industry, but at the same time I’m often put off by the overwhelming bitterness they espouse. At the same time, underneath the anger I think they reveal some valid, and unfortunate, points about this aspect of the legal profession. So I was moved to answer some of the recent criticism of these blogs I saw on another.


Susan Cartier Liebel recently hosted a comment by a former document reviewer in one of her posts at her Solo Practice University blog. Susan is very enthusiastic about lawyers knowing their worth and finding ways of tapping into it through the independence of private practice, and I don’t mean to impugn that enthusiasm, or, necessarily, the commenter to the extent that she echoed that encouragement for contract document reviewers who are dissatisfied with that sort of work.
Unfortunately I thought the commenter was at best glib about the logistics of contract document review, and correspondingly condescending. While she’s right to say, “if you don’t like it, do something else,” it’s naive to pretend it’s so simple to make the switch, and it ignores the fact that many of the unsavory qualities to contract document review are a needless disgrace to the profession. Why, I commented, must contract document reviewers be treated to the scorn of their fellow attorneys?

Contract doc review SHOULD be a legitimate work choice, imbued with the respect of the profession. For we are actually professionals — full-fledged lawyers, in fact, with the commensurate duties to clients, the bar, etc. — doing necessary work to advance clients’ interests. However, as those blogs often point out, and as [the comment] itself exemplifies, it is often denied that respect.

I also criticized comments that implied it was so easy to switch gears and move on to other legal work.

[C]hanging one’s circumstances is much easier said than done. Even the most optimistic and driven person is going to have issues. At best the [contract document review] work is simply too feast-or-famine to leave much in the way of time and energy to pursue other avenues, and the pay too inadequate to have enough of a cushion to take that leap. It’s also hard to plan for the long term when you are busy in the short term trying to figure out where your next paycheck is coming from. Even the highest doc review rates (which are plummeting precipitously) do not provide enough of a cushion to comfortably and confidently ride out the slow spots, particularly as more lawyers compete for diminishing assignments and bar obligations, loan repayments, et al., keep helping themselves to sums predicated on much larger incomes.

I don’t think it’s impossible, mind you. But difficult. The current economics of becoming a lawyer are simply unsustainable, built upon the myth that it’s necessarily a well-paid profession, when it only is for some. So of course these bloggers scorn the ABA when they come asking for membership dues when ABA policies, such as those advancing off-shoring document review work, make their livelihoods even more strained.

Moreover, as I wrote, I don’t even think that’s the biggest problem with the ABA ethics advisement enabling offshoring. As a lawyer with professional and ethical obligations I believe offshoring amounts to a dereliction of those duties. The reason contract attorneys have been hired in the first place is because we have those obligations. We are bound to use professional judgment in our reviews, as well as protect client confidences, and there is recourse with our local licensing authorities if we don’t. Not so if privileged and confidential information is sent overseas. Yes, maybe the review may be cheaper. But you get what you pay for.

But bottom line, if this work is important enough to be done by lawyers, then it’s important to treat the people who do it with the respect those qualifications have earned them. When that respect is lacking, everyone — lawyers, clients, the profession — is harmed.

 Posted by at 10:37 am

  2 Responses to “Contract lawyering II”

  1. Cathy-
    I was with you 100%, until you mentioned ABA policies “advancing off-shoring document review work.”
    Those who deride ABA Formal Op. 08-451 (the most recent and comprehensive ABA ethics opinion in this area) because of the perception that it supports offshoring document review are being short-sighted.
    As I explained in a June 22 post on my Legal Research & Writing Pro blog, entitled “In Which I Respond to Lawyers Who Complain About Bar Ethics Opinions that Allow Outsourcing Overseas,”
    What those who complain about [Op. 08-451 and others like it] fail to realize is that the same principles that allow firms to send legal work overseas also allow law students – including (gasp!) summer associates at AmLaw 100 firms – and law grads awaiting admission to do actual legal work when they’re working at firms, rather than making copies and getting coffee for the partners. These principles also allow lawyers to work as contract attorneys in jurisdictions in which they are not admitted.
    So, actually, these ethics opinions are good news for US lawyers, if you understand all their implications (check out my post on this, entitled “ABA Formal Op. 08-451 Good News for US-based Independent Contract Lawyers and Hiring Attorneys” [http://tinyurl.com/6lcfl3]).
    ________________
    You can find the post at http://tinyurl.com/lugxe2
    Your point about U.S.lawyers having ethics obligations that foreign lawyers may not have is a good one, and the ABA addressed it in Op. 08-451. In any outsourcing relationship (onshore or offshore), the hiring attorney has an ethical duty to make reasonable efforts to ensure that the contract lawyer conforms to the Rules of Professional Conduct.
    Op. 08-451 identifies some areas of concern that outsourcing lawyers should address, including data security and, of course, the credentials of the individuals providing contract legal services. It raises additional issues relating to foreign lawyers, including whether the system of legal education under which the lawyers were trained is comparable to that in the United States; whether the foreign lawyers are subject to a professional regulatory system that inculcates core values similar to those in the United States; the “legal landscape” of the nation to which the services are being outsourced (and, specifically, whether personal property, including documents, may be susceptible to seizure in judicial or administrative proceedings notwithstanding claims of client confidentiality); and whether the judicial system of the target country will provide prompt and effective remedies to avert prejudice to the client in the event of a dispute between the service provider and the outsourcing lawyer. Hiring lawyers who are US-trained and based avoids the issues that arise when hiring foreign lawyers.
    Other knowledge professions (such as IT) have been subject to the market forces that make offshoring attractive for many years. There’s no principled reason why the legal profession should be immune to those forces.

  2. Point taken re: ABA rules. Not having read them more specifically, I defer to you.
    But as for “no principled reason why the legal profession should be immune to those forces” I see a big difference. Back when I was a tech professional there was no credentialing or licensing standing in my way of earning a living with my skills. With law, however, there is a cartel controling access to the profession and the work.
    While I accept the public interest might be helped in some degree by all the barriers to entry, many of them simply serve to protect the market position of those already practicing. Given the enormous expense in terms of time and money these barriers impose on new entrants to the profession, the cartel should not make it financially impossible to recoup that investment for those who have successfully hurdled them.

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