Jul 23 2015

Big Blow to Big Law: “Doc Review” Is Not “Practice of Law” Making Overtime Rules Applicable

One of the dark secrets of Big Law (firms with more than 1,000 lawyers) is that they have a whole contingent of lawyers all across the country who are not part of the firm per se and do lots of the grungiest of the grunge work of the legal world: Document Review. The glut of law students and lawyers has allowed these firms to park hundreds of lawyers in Oklahoma, South Dakota, the Carolinas,etc. whose sole task is to pore through thousands and thousands of pages of emails, medical records, correspondence and other written material that is part of litigation. While first-year hires from top law schools get about $160,000 per year these lawyers are lucky to get $25 per hour. But hey – its a start and at least they are practicing law right? Not so fast.

FLSAThe Second Circuit – the federal appeals court that covers New York – has ruled yesterday that pure document review is not “the practice of law” since it does not require the exercise of legal judgment. The decision could have large ramifications for Big Law, their clients and the lawyers who work for them or the companies that they outsource this work to. The case, Lola v. Skadden, Arps, Meagher &Flom pitted David Lola, a young lawyer admitted to practice in California but who was assigned to work in North Carolina, against Skadden Arps, one of the largest law firms in the world where senior partners bill their Fortune 500 clients over $1,000 per hour. Lola was assigned to work on a case that arose out of the federal court in Ohio. The case was brought in New York where Skadden is headquartered. Lola was paid $25 per hour for fifteen months during which he worked about 55 hours per week. NY law requires that employers pay overtime at a rate of one and a half times the regular rate for any hours over 40 per week. So David sued this legal Goliath for his overtime and for overtime for all others similarly situated.

Skadden’s response was that the Fair Labor Standards Act exempts from overtime employees who are “engaged in the practice of law.” Professionals such as lawyers don’t get overtime – excessive hours is just part of the gig. The lower court agreed and dismissed the case. But the Second Circuit reversed and held that what Lola did was not “the practice of law” as that is defined in North Carolina (that’s where he was working so that’s the definition that applied). North Carolina defines the practice of law as:

“performing any legal service for any other person, firm or corporation, with or without compensation, specifically including . . . the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi‐judicial bodies, or assisting by advice, counsel, or otherwise in any legal work; and to advise or give opinion upon the legal rights of any person, firm or
corporation.”

The court also noted that North Carolina courts have interpreted the phrase “practice of law” (in cases revolving around the unlicensed practice of law) as requiring “the exercise of some legal judgment.” Lola said he did nothing of the kind.Lola alleges that his work was closely supervised by Skadden and his “entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendant, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols the Defendants provided. The court summarized it this way:

A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.

Finding that these mundane tasks did not amount to “the practice of law” in North Carolina. the Second Circuit reversed the lower court and reinstated Lola’s complaint. The plaintiff was represented by a small, six-lawyer NY firm, Joseph & Kirschenbaum, who specialize in taking on big-name restaurants for wage and hour violations of their servers, dishwashers and busboys. The decision is likely to bring an onslaught of litigation against many Big Law firms which engage in the same practice. We know that these big firms would not entrust the exercise of legal judgment to lawyers earning $25 per hour, so very have to pay them overtime from here on out.

But for me the case also raises several other questions: (1) How much was Skadden billing its clients for Lola’ services? All law firms have very different rates for paralegal work and for legal services. (2)Will their clients be allowed to sue Skadden for back bills in which they were charged for “legal services rendered” now that a very influential court has ruled it was not legal services being performed? (3) How were they allowed to bill it as legal services or even claim it as legal services when Lola was not admitted to practice law in either North Carolina (where he worked) or Ohio (where the case was pending). Seems to me had he lost Lola could have been brought before the North Carolina Bar for the unlicensed practice of law ad Skadden for permitting the unlicensed practice of law. (4) In describing his experience in resumes, interviews and job applications would Lola be lying if he stated that he had been practicing law in North Carolina for the fifteen months involved?

The case will now proceed through discovery and onto trial where perhaps some of the questions may be answered.

The decision can be found HERE

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Jul 22 2015

What I Learned About Lawyering When NY Lost My Bar Exam

Thirty years ago next week, the NY State Board of Law Examiners lost all 542 answer sheets for the Multi-State portion of the 1985 NY Bar Exam, representing the sheets from students who took the exam in the Pier 90 building. I was one of the unfortunate souls who had been assigned to take the test in that room. Every time Bar Exam season is in full swing -as it is now with the exam looming on July 28 and 29 – I am brought back to that horrible event in my life when for the first time ever I actually thought about killing a large group of people.

I mean after four years of college, three years of law school, seven weeks of Bar Prep classes and and two weeks of daily 15 hour cramming days to hear that just those four boxes from my test room were somehow missing from the Board’s offices at 270 Broadway can you blame me for having homicidal ideations? But in fact the experience of the following weeks and months were very influential on my career as a lawyer and left me with life lessons that still mean something to me today.

For those of you who are reading this that are not lawyers, a quick explanation of the Multi-State portion of the Bar. The Multi-State Bar Examination (MBE), which is given in 49 states (Louisiana being the lone exception)along with Guam, the District of Columbia and the Virgin Islands, is generally offered only twice a year: on the last Wednesdays in July and February. It’s a six hour exam consisting of 200 multiple choice questions in six areas of law: Constitutional Law, Contracts, Torts, Real Property, Evidence and Criminal Law & Procedure. The day before the MBE, NY test takers face another grueling six hour exam comprised mostly of six long essays on NY law. Asking which day is worse is like asking whether you want to get poked in the right eye or the left eye with a knitting needle.

So after the smoke and anger cleared – a little- it was time to figure out what was going to happen next. Frustrated law students were calling the Board daily and getting no answers. The Bar had been administered by the Board of Law Examiners since 1894 and something like this had never happened before. (It has also not happened again since by the way – I’m lucky like that). All we knew was this singular quote in the NY Times from John E. Holt-Harris Jr., one of the members of the Board of Law Examiners: ”There is no way to express how wretched we all feel about this thing.” Thanks Johnny boy, that helps a lot. They had no idea what to do with us. Many of us who were in NYC got together and selected a committee of three to deal with the Board and represent a large body of test takers. I was one of the three selected. I had some legal experience taking depositions and arguing motions as a law student working for the NYC Law Department, so I was almost a litigator in my eyes and my fellow victims’ eyes. So the first thing I had to do was gauge what the client wanted. Most of the group wanted a free pass – their position was that the Board should grade our essays and if we did sufficiently well on the essays, then they should pass us on the MBE automatically. That sounded good to me but I quickly realized it was not realistic for two reasons: (1) The MBE accounted for 40 percent of an applicant’s overall score. Because the passing grade was 660 on a scale of 1,000, it is effectively impossible to be admitted into practice in the state without taking that part. They would have to change the whole grading methodology. Not gonna happen; (2) If they did that for us, they would have to post armed guards next to every test room and use military personnel to guard the boxes at 270 Broadway because the test would be stolen every year otherwise. I learned from this how to (1) Give a client bad news – just write it out and tell it to them straight. Its easier to say if you just write it out in the best way possible and then just read it. Don’t ad lib it, don’t improvise, just write out the most thorough but least harsh way to say it and then just read it. (2) Manage client expectations. Clients often come to lawyers with problems for which they have already devised solutions – “He has to pay me back” “I want him to be forced to give me the business” but which often are not allowed by law. A lawyer’s job is to zealously represent his client’s interests -yes – but its also the lawyer’s job to explain to clients the limits of the law. I did however present the demand to the Board to appease the group and to be able to say that I at least tried to get what the consensus wanted.

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After getting a swift “No Way” from the Board, we had to regroup. We decided we were not going to bid against ourselves and demanded that the Board tell us their proposal asap. They got back to us that they would allow us to take the test when it was administered again in February. They explained that a new test would be costly to draft quicker than that and they couldn’t just give us the one we had already taken. That proposal was unacceptable because cost should not be an issue and it would also delay our admission to practice and we would be behind the 6,000 other test takers whose exams were not stolen. But at least we had our two settlement positions put forth so we could present the case to a mediator if need be. We pressed on and the Board decided to essentially split the difference – they would give us a new MBE in September and get the grades back to us in November at the same time as everyone else. This was unpalatable to lots of people but an old saying goes “A good settlement is when neither side is perfectly happy.” We had to recognize when we had as good a deal as we were ever gonna get. Many were sure they had forgotten all that had learned over the spring and summer. I had to assure many that we had prepared so well for so long, all that information was still there somewhere in the recesses of our brains. Joseph Pieper who ran a successful Bar Prep class (and still does)then came along and offered a free one day crash session on the MBE for all those who had to re-take the test even if you had not taken his course previously. It was a lifesaver because it reinforced that we indeed still recalled all that law. At the session, he handed out pencils and told us all to bring them down to the bar at the Roosevelt Hotel (where the re-take would be administered) where he would be waiting with a free drink for all. So I learned about being a stand-up guy and a little about marketing as well.

But the true learning experience was that sometimes things don’t go your way through no fault of your own. As a litigator it happens often. A witness gets funky on the stand and doesn’t say what you had expected them and prepped them to say. Documents you need and which have been under subpoena for months arrive incompletely or not at all. Judges don’t know the law or know your adversary too well to rule against them. When these things happen, you have to be resilient and not let them see you sweat. Crying into your legal pad and yelling “It’s not fair!” will not work. Save your complaining for the appeal and your spouse. You have to find an avenue around the obstacles. And the best way to do that is to rely on your preparation and knowledge. There is no such thing as over-preparing for trial or the Bar Exam. There is no such thing as a perfect trial. But knowing your stuff inside out makes you confident – it allows you to employ the best strategy possible under the circumstances.

So to all the Bar takers this year – including my son Steven and his girlfriend Rachel who are studying furiously for the exam as I write this, I wish you all good luck. Remember that you will never know as much law on so many subjects as you do right now. Remember that pass or fail you will have a long legal career ahead of you because you will dust yourselves off, get back on your feet, and forge ahead.

Jul 20 2015

Email Address Does Not Constitute “Place of Employment” For Stalking Law

A NY Judge has decided in a case of first impression that a section of the NY Stalking Law requiring that the stalking conduct occurs at the complainant’s “place of business or employment” is not satisfied by the sending of repeated emails at the complainant’s business email address. The defendant sent over 200 different forms of communication including many emails to her former girlfriend’s work email address. She was then arrested and charged with three stalking misdemeanors.

One count was based on Penal 120.45(3) which reads:

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct . . .(3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

lady justiceThe court held that in interpreting other laws with the same phrase, NY courts have held that “place of employment” means the physical location where a person works. “Thus, given New York courts’ consistent view that the phrases ‘place of employment’ and ‘place of business’ refer only to a physical location, this court will apply that same definition here,” Judge Steven Statsinger said.

I guess it came down to the distinction that telephoning a person at work requires them to be at the physical location when they pick up their work phone but email technically does not end up in the physical workplace. The statute is also meant to broaden stalking so that fear of physical injury is not necessary – you just need to be scared that someone’s behavior may cause you to lose your employment or business. It would be unusual for repetitive emails to threaten your career in the same way that showing up at the office or constantly calling the office could.

Furthermore, repetitive or harassing emails are covered under Penal Law 120.45(1), a more general statute that defines conduct “likely to cause reasonable fear of material harm to the physical health, safety or property” of a victim as stalking. In addition, the defendant was also charged under 120.45(2) which hinges on a defendant exhibiting a course of conduct by contacting a complainant repeatedly after being asked to stop — behavior that is not dependent on contacts with the victim at the physical workplace. The defendant here will still have to face those charges.

The distinction could be important to prosecutors and defense counsel in cases where there was no fear of imminent physical injury and the work emails had some stated legitimate purpose as that behavior would not meet the language of any other part of the stalking law. The case also serves as an example of how law is shaped and made by litigators fighting over the definition and application of terms and phrases in the statutes. I am sure that this was not the first time anyone was charged for similar conduct under the same statute it was just the first time anyone challenged it.

Read the judge’s decision here

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Jul 15 2015

Proposed Ban on Swastika Not Enforceable

Town of Hempstead Supervisor Kate Murray held a press conference yesterday to propose a ban on use of the swastika in any location including the air. Joined by Jewish leaders, she made her comments at Point Lookout Town Park, where a plane trailing a swastika banner flew along the beach Saturday. Was that act offensive? Of course. Was it hate speech? Very likely. Was it legal? – Yes.

NY State law already forbids the etching, painting, drawing and placing of swastikas on public or private property without the permission of the property owner. Murray described this as the “loophole that they have been flying their planes through.” That’s true. But the State law is really just lip service as well. You can’t “etch, paint, draw or place any symbol” including the American flag on public or private property without the permission of the property owner. While the current law seems to target one form of symbol, it does no more to regulate it than the laws against criminal mischief and graffiti. I suspect had it allowed other symbols to be used on property without permission but banned swastikas, it would be struck down as a content-based ban on speech. The same could be said for a ban of aerial display of a swastika – it cannot be the only symbol blocked by a law or that would be a prior restraint restriction on speech based on its content.

Murray, in proposing the law over airspace in which she has no jurisdiction, was quoted in Newsday saying the following:

“Not all speech is free. We know you can’t yell ‘fire’ in a movie theater. . . . We feel that the swastika, which has been so identified with the killing of 6 million Jews and many others, that you cannot separate the swastika from the most terrible time in our history.”

murray nazi banThe second sentence is 100% accurate – you cannot separate the swastika from the Nazi Holocaust. The first sentence is an incorrect application of First Amendment law. Hate speech is protected speech I get so tired of hearing TV pundits including professors saying “But this is hate speech.” So? Who needs a Constitutional amendment to protect “loving speech” The point of the First Amendment is to protect speech we hate to listen to – to acknowledge that our country is strong enough to allow others – even those who hate us – to speak freely about their hate. The old canard about yelling “Fire” in a theater is also misused by Murray. You can’t yell “Fire” in a theater because it present imminent threat of harm, a clear and present danger to public safety. Furthermore movie theaters are private property so owners can restrict speech inside much more than a governmental entity can. March on the sidewalk in front of Murray’s office with a picket sign reading “FIRE” and see if anyone stops you.

The International Raelian Movement, a group that says its goal is to “rehabilitate” the swastika so that it’s seen as a sign of peace (Why? who knows) is apparently behind the flyover. The group performed a swastika flyover in July last year along some South Shore beaches. Newsday quoted Thomas Kaenzig, 42, of Las Vegas, the leader of the group as saying “Banning something is never the answer. Education is the answer.”

I agree. So while the swastika remains a disgusting symbol of hate and genocide, ignoring those who seek to promote is far better than proposing legal recourse and holding press conferences that only serve to highlight the group and that will not pass Constitutional muster.

Jul 13 2015

“Yes Means Yes” Law Will Mean “No” to Due Process

Swiftly passing laws to combat the “topic du jour” is a politician’s favorite form of grandstanding. As a person who is wary of any such law or indeed of any criminal statute named after a person, I worry that NY’s recently enacted “Yes Means Yes” law will erode the rights of those accused of on-campus sexual assaults. These snap-reaction laws rarely cover only the ground they intend to cover and instead get applied broadly to all similar situations that were never the intention of the original law and which reek havoc on the justice process.

The law which currently only applies to NY college and university campuses, is not a criminal statute – it requires schools to adopt “affirmative consent policies” in their student conduct guidelines. Colleges have until September of 2016 to comply by re-rewriting their conduct codes and policies.That means that it will no longer be a defense to an accusation to say that the complainant “Didn’t say ‘No'” An affirmative “Yes” must be obtained for each sexual act. That means if a woman affirmatively consented to kissing you, you then need to obtain additional separate affirmative consent to say – touch her breasts. If during the makeout session, the woman steps back, opens her shirt herself and takes off her bra, the other party must still ask for and obtain affirmative spoken consent. No more picking up on sexual cues – the romantic dance has been turned into a contractual event.

This is the part of the article where I acknowledge the problem of sexual assault on college campuses.It has been a year of national questions about how well colleges handle sexual assault on their campuses: a Columbia University student became a media sensation as she carried a mattress around with her to protest how her allegations of sexual assault had been handled. Currently in NY alone, 11 colleges are under investigation for mishandling sexual assault allegations. So let’s focus on fixing that problem – getting police departments and college administrators to better understand the nature of sexual crimes and how to respond to complainants and investigate their allegations seriously and professionally. This shift in the law however goes too far and places the burden of proof on the accused. They will now have to somehow prove that they received affirmative consent for each sexual act. How long before someone develops an app that each party has on their phone where you enter the other parties name and have them text you consent as you move up (or down) the sexual progression?(caniplacemyhandthere?.com)

It feels like NY rushed headlong into this law without a full analysis of some of the root causes of the problem: binge-drinking in colleges and school administrators who are dinosaurs and incapable of properly handling sexual assault allegations. In a recent interview with NPR, Assemblywoman Deborah Glick, one of the sponsors of the law said this:

Frequently in legislation you address the edges of a problem. You can’t solve problems that are about human behavior (laughter). I mean, we don’t stop murder by having severe penalties for that, but you don’t not try.

That’s the problem – addressing the edges of a problem by passing legislation that covers far beyond the edges of the problem produces unworkable and dangerous laws. And at least murder suspects get due process rights (most of the time anyway). Students accused of on-campus sexual assault are brought to kangaroo courts usually made up of a few administrators, one student and a Dean. The accused is not given a copy of a written accusation, is not entitled to counsel, and is in many instances not even allowed to question the witnesses who testify separately and often outside the presence of the accused. And while there is no criminal penalty for being found guilty of sexual assault in one of these proceedings, getting suspended or expelled has great consequences on a young person’s future and can severely alter their prospects. So if we are shifting away from “Innocent until Proven Guilty” we should ensure there are protections for the accused as well.

The scale represents balancing justice with fairness

The scale represents balancing justice with fairness

And while this law currently only applies to NY college campuses, I expect it will be made the norm on all college campuses and soon enough this standard will make its way into the criminal statutes.The draft sexual assault law being written by the American Law Institute (ALI) would make sex without express consent a misdemeanor anywhere. The institute, made up of legal scholars and judges, writes draft penal codes that are often adopted by states and the federal government. Retired Federal Judge Nancy Gertner is a member of the ALI, and also a professor at Harvard Law School. She is opposed to these laws because of the danger they present to due process rights. She and two dozen others warned that the proposed changes to criminal laws across the country could potentially fill the courts with false and frivolous accusations. She also described the failings of Harvard’s new sexual assault hearing policy which was modeled on a Yes means Yes standard:

Nothing in the new procedure requires anything like a hearing at which both sides offer testimony, size up the respective witnesses, or much less cross-examine them. Nothing in the new procedure enables accuser and accused to confront each other in any setting, whether directly (which surely may be difficult for the accuser) or at the very least through their representatives. Nor is there any meaningful opportunity for discovery of the facts charged and the evidence on which it is based; the respondent gets a copy of the accusations and a preliminary copy of the team’s fact findings, to which he or she can object — again within seven days, a very short time — but not all of the information gathered is necessarily included. Everything is filtered through the investigative team, which decides the scope of the investigation, the credibility of witnesses, and whom to interview and when. …

The final flaw in the NY State policy is that it describes as sexual assault any sexual contact with a person “who is under the influence of alcohol.” But it fails to define the term “under the influence of alcohol” Is that legally intoxicated? Is it impaired? What if alcohol made someone loosen restrictions on their morals but they still fully consented to the activity – afterwards they could argue that they acted “under the influence of alcohol” And how about this – What if the alleged accused was under the influence of alcohol? Under these guidelines why should it not be a defense to campus sexual assault that the accused misinterpreted sexual cues as affirmative consent because they were under the influence of alcohol at the time.

Campus sexual assault is a serious issue worth of discussion, debate and investigation. Police and college administrators must be educated on the significance of the problem and how to properly deal with such charges. Many proponents of the law say that its strength is that it has “started the conversation.” Actually it has ended the conversation because a law has been passed – conversation (or as I prefer to call it “debate”) is supposed to occur before a bill is enacted so that we make sure we get it right. This law is a step too far and does not provide sufficient protection for the accused. It has serious potential to harm innocent people and destroy their college careers and seeks to formalize interpersonal relationships in a manner that cannot be properly enforced.

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