Contract Attorney OT Suit Moves To Second Circuit By ALEX RICHOctober 31, 2014
They say it ain’t over till the fat lady sings, well, extrapolated to the legal profession: it ain’t over till all appeals have been exhausted. Such is the case of our good friend, contract attorney David Lola. You remember him, he filed suit against Skadden Arps and his staffing agency, Tower Legal, alleging his work as a contract attorney did not rise to the level of the practice of law and as such he was entitled to overtime wages. Last month, his Fair Labor Standards Act case was dismissed by Judge Richard Sullivan finding that the provision of legal services by a lawyer are exempt from federal overtime laws regardless of the nature of the task performed.
Last we heard from Mr. Lola, things were not going well. He’s been blackballed from the industry and living out of his car. Not exactly the result you’d hope for when filing a lawsuit. Well, at least he has his appeal to look forward to.
And what causes lawyers to strike out (via lawsuit) at the law firms that hire them?
The good news for Lola’s appeal is that it’s a novel issue of law, not previously addressed by the court so there isn’t bad precedent to overcome.
Federal courts of appeals haven’t addressed the question Lola proposed to the U.S. Court of Appeals for the Second Circuit on Oct. 13—that is, whether licensed attorneys who perform document review services are engaged in the “practice of law” for purposes of the FLSA’s professional exemption (29 U.S.C. § 213(a)(1)).
Whatever the Second Circuit’s decision, this will obviously impact the case of William Hening. He’s another contract attorney suing Biglaw (in the form of Quinn Emanuel) for OT, repped by the same law firm as Lola, natch. Though Hening’s case has made it through (limited) discovery, he’s asked Judge Ronnie Abrams to hold off on ruling on the defendants’ motion for summary judgment until the Second Circuit’s ruling in Lola.
Jane Genova over at Law and More has a fun take on the somewhat recent phenomenon of contract attorneys suing the hand that LITERALLY/FIGURATIVELY feeds them delving into the psychology of why they do what they do.
Schoolboyish belief in supposed justice. Grown-ups, even who aren’t lawyers, know justice is an abstraction. It has no reality. That shouldn’t even be rattling around anyone’s mind. Not anyone over 14 years old.
This is one of my favorite of Genova’s reasons WHY DID YOU DO THAT? See, well before this rash of contractor OT suits, I had several lawyer friends (gainfully employed at real firms) insist that if I were a plaintiff in just such a case it would be a slam dunk. Realistic about the futility of waging a legal war with Biglaw, I laughed off the drunken suggestions and now just shake my head when I read about updates from these cases.
Delusion born of frustration. The dark fiction of Edgar Allen Poe shows how the resentful can hatch convoluted plans to right perceived wrongs. Focus on all that for long enough and the line of thought can become delusional.
This is where Genova gets dark, and it makes me wonder if she’s spent any time in a doc review facility. Because the mind can go to some pretty scary places when left alone in a putrid basement staring at a computer screen for 15 hours at a clip only to be called one of the lucky ones that actually has a job.
I’ve got another possible reason to add to Genova’s list, perhaps these plaintiff are just out of f*cks to give and want to just let it all burn. More than delusion can be born of chronic frustration, sometimes a deep seeded self destruction program gets tripped instead.