Why Document Review Matters

How cool! As I am checking the blog this morning, I happened to read someone mentioning in comments on my letter to the DC Bar President-Elect candidates that document review is not really the practice of law.

Reviewing documents is not the practice of law. Responding to a subpoena does not require lawyers. I like Gabe but he is starting with the incorrect premise that the review of documents is the practice of law. It is a different matter that the attorney on the case is ultimately responsible for the response. Futhermore, when a lay person is served with a request for documents, the lay person is not required to hire an attorney to respond to the request. So, it is false to imply that the document productions require attorneys to begin with. Attorneys are involved to begin with because the document production is part of a legal matter that they are working on but the client can handle the document production however it chooses...with or without attorneys.
May 12, 2008 5:51 PM

Frankly I am thrilled to just get a comment, whether or not that person agrees with me. Heck someone commented on my blog a while back and I was prepared to anoint her as the “Greatest Person on Earth.” That being said, I am glad Commenter 5:51 made mention of this, because it brings up the age old issue: Is document review part of the practice of law?

In regards to 5:51, I am thrilled with you commenting on my blog, and please continue to do so. That being said, I must strongly and respectfully disagree with you on the notion that e-discovery document reviews are not the practice of law. I can explain this on both a bird's eye view level and a more “nitty, gritty” detailed level as well.

First the bird’s eye view, e-discovery is exactly that--discovery, which is part of the practice of law. Now I have never asserted that you have to be an attorney to participate in the discovery process. It is clear that you do not have to be one.

What is clear is that the level of supervision for non attorneys in discovery (or any other part of the practice of law) is much stricter. Believe you me, the supervisory threshold goes far beyond the standard practice of the supervising staff attorney that counts up the number of documents reviewed each day, spot checks work here and there, and manages the progress of a particular project. After all, that is the basic standard we use for attorneys that ARE licensed in DC.

With non licensed attorneys, the supervision would be much greater. The level of quality control would be much higher than that required of DC barred attorneys, and that goes for both responsive and non-responsive documents. That is in exact adherence with the now infamous June 17, 2005 opinion from the Committee on the Unauthorized Practice of Law for the Court of Appeals of the District of Columbia.

My argument was how in the world is any law firm going be able to meet that much higher standard? We are talking about hundreds of mostly non-American licensed attorneys, who don’t have an American legal education, who are reviewing millions and millions of documents in e-discovery. The truth is that it is almost impossible to meet that higher threshold.

Can the work be mind-numblingly boring at times? Of course, but here is a breaking news flash for you--90% of the law is pretty freaking boring. Think about it. How many of you got all hot and heavy arguing Res Judicata in moot court, or was there ever a part of the hearing about parol evidence rule where you "got the vapors?"

Second, on a micro more “nitty gritty” level, in discovery you are asked to make a judgment call as to responsive or non-responsiveness of a document (that is why it is lovingly called "document review"). This is again also part of the practice of law. Albeit I grant you it is a small part, but it's still a part. Now, are you writing a brief to the supreme court? No, but you are still are making a legal judgment call, and for that you need a license or the adequate supervision from someone who is licensed.

I agree with you again in the sense that attorneys are not required to make that call and there are many non attorneys who could make that call as to responsiveness with absolute competence and accuracy. But if you are going to use non attorneys as I stated above, you are held to a much higher threshold when it comes to supervision, which I do not believe can be met.
Finally, about this in your comment:

Futhermore (sic), when a lay person is served with a request for documents, the lay person is not required to hire an attorney to respond to the request.

That is the case with any aspect of law not just discovery. You can always argue a case pro se. Frankly, in this country, you are never required to hire an attorney. If a lay person was charged with murder, he or she could absolutely defend themselves in court without an attorney. If my wife wanted to divorce me, I could argue my own case in court regardless if I had a law license or not. As an aside, I would definitely hire one though because my wife would take me to the cleaners.

What I cannot do is hire my neighbor down the street who is a plumber to represent me in court, because he does not have a license to practice law. That being said, could my neighbor the plumber, who is exceptionally smart by the way, handle discovery in my case all by himself? Of course not, although he is exceptionally smart, he would still need an attorney with a license to look over his work.

That is exactly what is happening here. For as much ethics and professional repsonsibilty our state and national bar organizations preach, they are at the same time condoning corporations and other law firms in hiring a bunch of non licensed foreign attorneys and letting them practice American law without the proper and necessary supervision that is required. In essence we are giving a license, so to speak, for hundreds if not thousands of non U.S. licensed attorneys to practice law without one.