Lawyers confused at stance on document review

The Law Society of Upper Canada is investigating lawyers who work for document review companies to ensure what they’re doing isn’t legal work outside of an authorized law firm, but how it’s applying the rules has confused some people.

“Whether document review services constitute legal services depends on the specific nature of the review being done,” said LSUC spokeswoman Susan Tonkin.

“The Law Society Act defines legal services as the application of legal principles and legal judgment.”

The determination depends on several factors, she noted. “As set out on LawPRO’s web site, document reviewers who assess privilege, determine relevance, and identify documents which are beneficial or prejudicial to the client’s or other parties’ legal position are likely engaged in the provision of legal services. Conversely, document reviewers who review documents only for specific words, dates or names are likely not providing legal services.”

With few exceptions, Tonkin said the law society’s Bylaw 4 provides that only licensees can practise law or provide legal services in Ontario. In addition, licensees can only practise law or provide legal services in Ontario through “certain types of business structures.”

But the way the law society has applied the rules has been ambiguous, according to some lawyers. Shireen Sondhi was working for ATD Legal Services PC, a document review company, before its acquisition by Deloitte LLP. While ATD had deemed her to be performing legal services, Sondhi says Deloitte informed lawyers they weren’t doing legal work and, as a result, they didn’t need insurance for it.

Given her concerns with Deloitte’s position, Sondhi complained to the law society. But its response surprised her. “I received a letter back from them saying that what I was doing wasn’t legal work,” says Sondhi, who notes her work at Deloitte, as with her previous jobs at ATD and another document review company, involved reviewing documents to determine whether they were relevant, what issues they were relevant to, and if they were subject to privilege.

“In certain cases, you had to determine what kind of privilege it was, whether it was solicitor-client privilege or litigation privilege,” says Sondhi. “So we weren’t just searching for keywords; we were searching for relevance and privilege.”

Sondhi says the law society told her the work fell within a “narrow exception.” She notes it hasn’t responded to her queries about what that narrow exception entails.

“I don’t understand how they came to that conclusion and they didn’t explain it in the decision to me,” she adds.

“So whether or not [document review] is legal services, as far as I understand, is still an outstanding issue because the law society hasn’t issued an official statement.”

Sources say the law society is also looking into lawyers who do document review work at Epiq Systems Inc., but the company declined to comment. Sources also say some lawyers have stopped or suspended their work at the company in light of the law society developments.

For its part, Deloitte says it stands by its position that its lawyers aren’t doing legal work. “Our practice uses leading technology and a multidisciplinary team of professionals that include accountants, former police officers, technology specialists, and lawyers to preserve, collect, identify, review, analyze, and produce documents,” Deloitte said in a statement to Law Times.

“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.”

Deloitte is facing a $384-million class action on behalf of lawyers who worked at ATD. Sondhi, a representative of the class, alleges Deloitte and ATD saved millions in payroll deductions and benefits by misclassifying employees as independent contractors who are exempt from certain protections under the Employment Standards Act. The cases will also deal with the question of whether the lawyers were providing legal services. None of the allegations have been proven in court.

In the meantime, the profession itself has divided opinions on whether document review constitutes legal work.

Susan Wortzman of the law firm Wortzmans says that in general, document review conducted by lawyers constitutes legal work.

“The document review that Wortzmans typically does involves making assessments of relevance, privilege, significance, and maybe classifying documents by issues,” she says.

“And in those cases, I believe what we’re doing is legal work. In those cases, what we have are lawyers exercising or using their legal judgments to make determinations as to whether particular records are relevant and/or producible in litigation. So in my view, that’s legal work.”

But Martin Felsky, Borden Ladner Gervais LLP’s national electronic discovery counsel, isn’t sure reviewing documents for relevance constitutes legal work in every case.

“Relevance can often be a factual thing. Whether or not a document gets produced, that’s a legal decision,” he says.

“If I say, ‘Look, I’ve got a million documents and I need somebody to go through them and find everything relevant to the newspaper business,’ you don’t have to be a lawyer to do that. It’s got nothing to do with being a lawyer. It has to do with being somebody who can read and understand the language and can say, ‘OK, you know what? This document has something to do with newspapers.’”

He adds: “It’s not a matter of searching. It’s matter of reading the material and understanding the content, but that’s not a legal decision.”

The bigger question is what employers are asking reviewers to do, according to Felsky. If they’re asking them to determine whether a document is important, that’s something that involves legal judgment, he says. “That’s part of the strategy of the case.”

Even if companies are employing lawyers who make decisions using their legal knowledge, those who have hired them can’t rely on that legal opinion, according to Felsky.

“I can’t hand that over to the client because it’s not really an opinion of the lawyers. It’s an opinion of the company and a company cannot have a legal opinion.”

For more, see "Is document review legal work?"

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