It has been said that over 90% of the world’s data has been created in the last two years alone.
The proliferation of documents has changed the way legal work is done. Litigation files with thousands or even millions of documents have spawned an entire industry devoted to document review. Wikipedia defines document review as “the process whereby each party to a case sorts through and analyzes the documents and data they possess … to determine which are sensitive [privileged] or otherwise relevant to the case.”
In Ontario, Deloitte has a department devoted to document review. It is filled with lawyers. The firm categorizes those lawyers as independent contractors and labels their work as “non-lawyer” work, leaving them responsible for paying their own Law Society of Upper Canada dues. From what I have heard, many of the lawyers conducting document review have failed to pay their Law Society of Upper Canada dues as practicing lawyers based on Deloitte’s classification of their work.
This begs the question: what qualifies as legal services?
In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers defines legal services. He quotes Mark Orkin in The Law of Costs (2nd ed.) Vol. 1 and explains that just because a service can be performed by a lay-person does not automatically mean that the work is not legal work. Orkin states that:
The fact that the services in question might equally well have been rendered by a lay agent does not, however, eliminate the need for compliance with the requirements of the Solicitors Act if the employment is so connected with the professional character of the solicitor as to afford a presumption that it formed the ground for employment by the client.
Justice Myers further adds at paragraph 20 that:
The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.
Applying Justice Myers definition, it is unlikely that excising a piece of legal work from the whole file transforms it from legal to non-legal work. Document reviewers are practicing law. Document review requires a strong understanding of legal principles like materiality, relevancy, and privilege AND it requires the application of legal principles. Last week the American Bar Association Journal released an article by Debra Weiss titled “Lawyer who reviewed 13,000 documents in two months isn’t entitled to overtime pay, judge rules”. The judge found that the plaintiff was using legal judgment, and therefore, he was acting as a practicing lawyer. As a result, he was not entitled to overtime pay.
We should be concerned about how we approach classifying document review because it is the first of many stages of a litigation file to be excised and contracted out. Richard Susskind in Tomorrow’s Lawyers predicts that it will become common for law firms to divide tasks and contract them out to service providers. Susskind goes on to say that we will even have new lawyer jobs devoted solely to the delegation and management of said work.
The disaggregation of legal work means that we must seriously question how we define legal services and how we plan to regulate providers of those services. Simply labelling disaggregated work as “non-lawyer work” evades the hard question: what qualifies as legal services?