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Is document review legal work?

|Written By Yamri Taddese

Is document review legal work? It’s a question that has implications for lawyers’ insurance requirements and one that has taken on increasing relevance given recent changes in the legal marketplace. In one case, the issue has created a rift between Deloitte and a lawyer who recently transferred to the firm as a result of its acquisition of ATD Legal Services PC in January.

Lawyer Shireen Sondhi, who worked as a document review consultant for ATD when Deloitte acquired it, says she had to part ways with the firm over disagreements on whether document review qualifies as legal work.

At ATD, Sondhi says the company considered her job to be legal work and notes she had to purchase LawPRO errors-and-omissions insurance. But Deloitte classifies the job as non-legal work.

Once Deloitte acquired ATD, Sondhi says a contract presented to her stated she would earn $47 an hour for her work as opposed to the $50 an hour ATD paid its document review staff.

“When I was working at ATD, we were told that [the job] is legal work and they market us as lawyers and so we were required to maintain our LawPRO insurance,” she says.

During the transition to Deloitte, according to Sondhi, she received an e-mail from management saying: “The good news is Deloitte does not require you to have LawPRO insurance, the bad news is that because you’re saving money on that, we’re going to bring your rate down to $47.”

A few days later, she started working on a project. “The work was the same, so a client hires the law firm — and in this case there was an upcoming litigation — and the law firm outsourced the document review work to Deloitte,” says Sondhi.

“We were still reviewing documents for this upcoming litigation and we were reviewing them for relevancy, for privilege, to sort of determine what category it fit into if it’s relevant and what type of privilege was applied to that document,” she adds.

During a conference call with Procom, a third-party employment placement agency that manages contracts for Deloitte, Sondhi says representatives noted they didn’t require LawPRO insurance for lawyers performing document-review tasks because they didn’t consider it to be legal work.

According to Sondhi, Shelby Austin, the founder of ATD Legal Services who’s now a partner with Deloitte, also told consultants the job isn’t legal work and that she had simply marketed it that way.

“Some of us were concerned about it, so we contacted LawPRO and the [law society],” says Sondhi.

In a few days, there was a post on LawPRO’s web site. If a lawyer is simply summarizing volumes of information into “a legally digestible format,” it’s not legal work, the post says.

“As a lawyer conducting document review services in support of litigation, however, you would be expected to exercise your knowledge, skills, and experience in the law and apply legal principles, so you could expect to be seen as engaging in the practice of law (even though a non-lawyer might do similar work and not be held to the same standard).”

Duncan Gosnell, executive vice president and secretary of LawPRO, says he can’t comment about a specific case but notes it’s “very unlikely” that a lawyer doing document review is only summarizing and condensing documents.

Whether a lawyer will be using their “legal knowledge, skill, and judgment” is what sets legal work apart from non-legal tasks, he adds.

For its part, Deloitte maintains its document-review business isn’t legal work.

“ATD Legal Services is now part of Deloitte and is no longer in operation. The document review business operated by Deloitte is not a legal practice and the services provided are not legal services,” the firm said in a statement to Law Times.

“Our practice uses leading technology and a multi-disciplinary team of professionals that include accountants, former police officers, technology specialists, and lawyers to preserve, collect, identify, review, analyze, and produce documents,” the firm added.

“Deloitte’s clients for document review and discovery are law firms and in-house counsel, and they practise law and make legal judgments. Deloitte supports them with document reviewers who work under their direction and supervision. The process is carefully managed so that neither Deloitte, nor its employees or contractors, are practising law.”

Sondhi says an amended Deloitte contract later took out a clause that deemed the document review work to be non-legal but described it as a “data processing and computer services” function that still doesn’t require LawPRO insurance. At that point, Sondhi says she sent an e-mail to the management team expressing the concerns she still had.

“I got this e-mail back from an employee at Procom saying, ‘Deloitte is not prepared to change the contract any further. Either you sign the contract or you consider your relationship terminated. Don’t come into the office tomorrow morning,’” she says. “So I wrote back and said, ‘I’m not comfortable with this. You haven’t answered my question, and I will not be signing the contract.’”

When Deloitte acquired ATD Legal Services earlier this year, industry analysts described the move as accounting firms “making serious noise” about tapping into the legal industry.

In fact, Jordan Furlong, principal at Ottawa-based consulting firm Edge International, told Law Times accounting firms’ growing range of services to the same client base law firms are targeting should be a wake-up call to the legal industry.

For more, see "Accounting firms making 'serious noise.'"

  • Some Guy
    The Law Society is aware of the situation but it has not made a final determination as to where it stands on the issue.

    At Deloitte, the nature of the work is that a "supervisor" employed by Deloitte tells the reviewers what to do which significantly diminishes the level of “legal knowledge, skill, and judgment” utilized by the reviewers. Some may go as far as categorizing the actual work done by reviewers to require zero judgement of either own as there is very little room, if any, for debate between the reviewers and supervisors about particular documents.

    All this to say, the Law Society should grab the bull by the horn and protect the legal industry from outside threats. Could the reviewers openly discuss the documents without being held responsible for breaking solicitor-client privilege? This is a dangerous path to walk down given the necessity of preserving the sanctity of solicitor-client privilege and the legal industry as a whole.
  • Unemployed Grad
    The Law Society has not commented. I am surprised that more people are not interested in these issues since hundreds of lawyers are working for Deloitte.
  • Anita Glasier
    Further to my earlier comment, rapid technological change in the legal industry may have serious, unanticipated repercussions.

    Outsourcing privileged, legal documents to people without privilege would appear to dissolve privilege in the transfer process. There would appear to be no reason these document reviewers cannot be subpoenaed to answer pointed questions in court, such as:
    1. What instructions did you receive regarding the classification of “relevant” material from that which was not considered “relevant”?
    2. What instructions did you receive regarding how to classify “primary source material” from secondary source material”?
    3. Was there any primary source material which overlapped with secondary source material?
    4. If primary and secondary source material overlapped, what instructions did you receive regarding how to classify that material?

    Many other questions have not been included, but sharks are born swimming.
  • John F. Fagan
    What does The Law Society say about all this?
  • Anita Glasier
    If it is not legal work then ergo, privilege is not attached, n'est-ce pas?
  • Anita Glasier
    If it is now legal work, then ergo, privilege is not attached, n'est-ce pas?
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