Portside Date: March 1, 2016

Author: Lydia DePillis

Date of source: March 1, 2016

The Washington Post

To a lot of people in the American economy, $25 an hour might seem like an excellent wage. When you’re chipping away at a mountain of law school debt, however, it can be woefully inadequate.

That’s the situation facing tens of thousands of attorneys who didn’t land the cushy corporate jobs they’d been expecting after graduation, or even the type of non-profit gig that might have gotten their debt forgiven. Instead, they are freelancers, working gig by gig with law firms and staffing agencies.

In recent years, their wages have sunk so low that some of those attorneys — in a world where long hours have been treated as dues to be paid on the way to a comfortable career — are asking for the same overtime protections enjoyed by retail clerks and bus drivers.

They argue that the work — combing through all the documents that emerge during the discovery phase of a lawsuit — doesn’t feel like the practice of law. It often takes place in hastily rented review rooms, with attorneys seated side by side, staring at computer screens to pick out pieces that might be relevant to the case. In the name of information security, employers often set rules about phone use, chatter with colleagues, and food consumption.

“I was told I couldn’t eat a yogurt," says Marc Steier, a former contract attorney who now works for a labor union. "That’s what’s so disturbing — it’s the absolute disregard. The realities of being employed at most of these agencies are beyond the pale for what most people would consider professional.”

A handful of attorneys have sued big employers for overtime pay over the past year. A settlement was reached in one case and a federal court dimissed another, because the plaintiff was judged to have performed some tasks that required legal skills. Under current law, insisting on time-and-a-half requires relinquishing any pretense that the job even requires a JD. Some attorneys, while desperate for better pay, wish to maintain the dignity of their work.

"I believe that’s a double-edged sword,” says Jennifer Espinet, a document reviewer in Miami, referring to demands for overtime pay. "The distinction in the federal law is whether you’re an attorney or not, so they could potentially be able to give our jobs away to a legal assistant.”

The debate may seem small, but it goes to the heart of how a new class of workers in white-collar fields whose work has been increasingly commoditized — think adjunct professors, for example, or even journalists — ought to view themselves. Are they still the kind of professional who’s paid enough to work until the job is done? Or are they laborers, entitled to extra if the hours grind on too long?

A stratifying industry

Such questions have become all the more important as the traditional structure of the legal industry becomes less and less sustainable.

Old-school white-shoe law firms used to have hundreds of people on staff, mostly junior associates, to do the important but dull work of combing through documents. After a year or two, having put in their time, they would move on to more engaging tasks.

The new century brought new pressures. With clients more willing to comparison shop, law firms looked for ways to cut costs — and full-time employees performing relatively menial functions became expendable. Meanwhile, the advent of electronic communications made discovery requests ever more voluminous, increasing the number of hours required to analyze them.

That created a new business opportunity for third-party staffing agencies, which were able to furnish hundreds of attorneys on short notice, just for the length of time they were needed. Unlike the junior associates of old, these workers had no expectations of advancement within the firm, no need for secretaries or nice offices — they could even be in a different city entirely.

What salaries look like for law school graduates these days: A lot near the bottom, and a few at the top. It’s hard to determine exactly how many people work in the document review world. The National Association for Legal Placement, a research organization that since 2000 has picked up on an increasing divide between high-end salaries and those clustered around $50,000, doesn’t track the number. Part of the difficulty: Law schools don’t typically break out people working document review jobs when they report on how their recent graduates have fared.

"The law schools are reluctant to say 'you just spent $150,000, oh by the way 97 percent of your brethren are clicking computers, eating cold pizza,’” says Greg Bufithis, founder of the Posse List, a popular website and set of listservs that serve as a clearinghouse for new document review jobs.

From membership on the lists, Bufithis estimates that there are nearly 8,000 attorneys working on discovery projects in the D.C. area at any given time, another 5,000 in and around New York City, and smaller clusters scattered in cities across the country.

As new staffing agencies have popped up in lower-cost jurisdictions, wage levels have sunk.

That’s what disturbed Valeria Georghiu, an attorney who made the shift from her own practice into contract work in 2012 after a car accident forced her to take on a lower-stress job. At first, she could make around $32 an hour — but competition from new startups and a glut of laid-off attorneys pushed rates down as low as $20.

"UNFORTUNATELY, IT’S NOT HARD TO FIND THE ATTORNEYS. I SAY 'UNFORTUNATELY,' BECAUSE IN A PERFECT WORLD EVERYBODY WOULD BE ABLE TO FIND EMPLOYMENT.”

— Beacon Hill Legal Managing Director John Tarbox

“That was very alarming, that within six moths of doing it, I saw a lowering of rates,” says Gheorghiu. “When you have combined law school and college debt of $300,000, living in a place like NYC, it’s really not sustainable.” The low rates wouldn’t be so bad, if it weren’t for the volatility: In between jobs, you have no income, no benefits, and no certainty about when the next project might come along.

Seeing others around her in the same situation, Gheorghiu decided to get organized. With help from a union and the National Lawyers Guild, she started holding meetings and building a listserv of interested workers. They compiled a list of grievances, and launched a website for a new group: The United Contract Attorneys. Members took small collective actions, like asking for higher rates on jobs that require specialized language skills, for which the labor pool is smaller.

“Here in Florida we’ve managed to get up to $55, and it’s because of acting together,” says Jennifer Espinet, of bargaining over wages on a Portuguese job that started out too low.

John Tarbox is the managing director for Beacon Hill Legal, the staffing agency that upped its rates on the Portuguese project. “I feel bad, because I think the contractors think it’s us, that we’re dictating what we’re going to pay people,” he says. Rather, he’s at the mercy of competition — if he doesn’t, someone else will offer attorneys who are willing to work for less.

“Unfortunately, it’s not hard to find the attorneys,” Tarbox says. As much as he tries to provide decent working conditions for his temporary employees, he’s under no illusions that it’s their preferred option. “I say 'unfortunately,' because in a perfect world everybody would be able to find employment.”

Laborers or professionals?

For all its networking and small collective actions, the United Contract Attorneys have gained perhaps their most notoriety for their work on the matter of overtime.

Their founding came at an opportune moment: The Department of Labor was considering changes to the rule governing what kinds of workers should be entitled to overtime, and how much they would need to make to be exempt. When the new proposal dropped, the group filed a comment in favor of making contract attorneys eligible to receive time and a half, arguing that most of the work doesn’t require professional judgment.

"The assumption that lawyers earn a ‘professional' salary - and are therefore categorically exempt from overtime compensation - is simply no longer true,” Gheorghiu wrote. "As a result, Contract Attorneys are a stark example of the disappearing middle class sorely in need of higher wages."

Many comments echoed that sentiment. But quite a few did not, voicing fears that staffing agencies would simply decrease straight-time rates, cut people off at 40 hours a week and hire more to make up the difference, or send the work overseas.

Besides the practical arguments, some people also opposed what would be an admission that their degrees no longer mattered. "Would I have liked to get overtime pay? Sure. Who wouldn’t?” wrote Bethany LaFave, who worked for 10 years doing document review in Chicago. "But not if it is at the expense of saying what I have done for a decade isn't legal work.” Doing so, she feared, would open up the profession to anyone — meaning attorneys couldn’t find jobs at all.

“IT’S A HUGE CHALLENGE FROM AN ORGANIZING PERSPECTIVE. IN THIS CASE, THEY HAVE TO DISAVOW THE PROFESSIONAL NATURE OF WHAT THEY DO IN ORDER TO AVAIL THEMSELVES OF THE FEDERAL LAW.”

— Edward Kennedy

Lawyers aren’t the only ones who have faced this internal contradiction. The nursing profession has long been divided over whether to function more as a group of professionals respected for their expertise, or as a group of workers that finds power in collective action. In recent years, universities have increasingly relied on low-paid adjunct professors, who are getting over their sense of academic remove to organize for wages and benefits. Journalists can sometimes be eligible for overtime as well, but have been reluctant to demand it.

Edward Kennedy, a lawyer works for the Transport Workers Union in New York, studied the document review industry for his Masters thesis. Along with the transience of the workforce — nobody plans to stick around in document review long enough dig in and make a difference — he says that attachment to the idea of professionalism is the biggest obstacle to change.

“It’s both a control of your work, but it’s also an idea you’re going to contribute to society in some way,” Kennedy says. “It’s a huge challenge from an organizing perspective. In this case, they have to disavow the professional nature of what they do in order to avail themselves of the federal law.”

Of course, it may not be too long before the question is moot, as contract attorneys fall victim to another form of progress: Technological change. Software is getting better and better at analyzing documents and making the same judgments previously thought unique to humans. Pam Downs, who recently left one of the biggest e-discovery firms to start her own consulting business, says that the main obstacle to artificial intelligence is trust in the reliability of new technological tools.

“I honestly believe that a generation of judges will have to retire, and then there will probably be more acceptance, and things will change,” Downs says. “It’s definitely affecting things now, but I believe there will be a day when you won’t argue over what to pay contract attorneys, because they won’t be needed."