It has been over a year since I posted here and much has happened. For one thing, I’m no longer a contract attorney. In fact, I’m not even practicing law anymore, although I’ve held onto my two existing bar memberships, paying the annual dues for old times sake – perhaps just so I can continue to call myself a lawyer (for whatever it’s worth).

Since then, I’ve moved onto other lines of work – most notably I’ve started several online businesses – and have found the Internet to be quite a treasure trove of money making opportunities. It hasn’t been easy, but I’ve managed to do quite well online.

For my fellow contract attorneys and tempers still working the salt mines of click-click land, my advice is to get out while you still can. Times are bleak, pay is low, and working hours are getting shorter by the minute – but the legal working situation for temp attorneys is also not going to get any better anytime soon. Contract attorney work is not only a dead end job career wise – but it’ll suck out your soul, pummel your pride, and leave you financially depleted years from now. If you can, try to strike it out on your own as a full fledge attorney. I know it’s incredibly difficult to compete in a market that’s super saturated and getting worse every day, but you must try – for sanity sake. I continue to curse the law school system to this day and continuously pray for numerous plagues to afflict the overrated law firms that choke our social system – but at some point, it’s time to move on to greener (or in my case, less-brownish) pastures.

And read Tom The Temp‘s blog regularly – he’s a morbid dose of social pessimissm and legal comedy for contract attorneys all rolled into one. He’ll bring you down and pick you up at the same time. Misery always loves company and there’s plenty of misery to go around.

Of course, whether contract attorneys are currently being paid fairly as a whole is another issue entirely. For the purposes of this piece, I’m just making a market observation. Although contract attorneys generally get paid the market rate for their geographical location, there are a variety of other factors that determine whether the offer rate exceeds or fails to reach the generally accepted standard:

1. Geographical Location – Probably the biggest factor that determines the appropriate market wage rate and compensation for contract attorneys is where the project will be located. Big cities generally get the bulk of the labor intensive contract attorney work, thus they also tend to offer the highest wage rates and most perks.
   

   New York City and Washington D.C. both currently have the highest rates at $35 an hour with time and a half for overtime. New York City probably flirts in the neighborhood range of $38-40. Any parity with D.C. rates is probably due to oversupply caused by the abundance of city law schools that seem to graduate more and more lawyers every year. Certainly the lack of work due to the current economic recession is causing the job market to noticeably slow down. Disturbingly, many NYC agencies have been taking advantage of the slump by slashing rates, an ominous trend that is frustrating many contract attorneys.
   

   Los Angeles also offers comparable rates, although the city isn’t exactly overflowing with projects, and the lack of steady gigs always seems to put downward pressure on rates. The smaller doc review cities of Chicago, Philadelphia, and Boston get the lower end of the wage scale at around $28-$30 an hour plus time and a half for overtime. That’s likely due to the fact that contract project are not as abundant in those metropolitan areas. See this unofficial but handy wage and salary chart for more info.

2. Job Description and Role - Most contract attorneys that perform straight document review get the standard rate for their geographical area. However for mega projects, individuals may sometimes be brought on board to serve as team leaders or quality control reviewers. They are not always guaranteed or given a higher rate, but when they are, the rate is usually a few dollars extra at around $37 an hour for D.C.
   

   Specialized projects that require foreign language knowledge and review skills on the other hand pay substantially more. More common languages like Spanish and French generally pay around $40 an hour. Slightly more obscure languages like Norwegian, Finnish, or Russian pay around $45-50. The premium, most difficult to staff projects involve the Asian languages such as Chinese, Japanese, or Korean. Asian language projects can fetch anywhere from $50 to 65 an hour with time and a half for overtime. If you are an attorney that can translate Asian language documents, I encourage you to price gouge your local staffing agency up to $70+ if you can. They will bend over backwards for you and more because your skills are a rarity and in extreme demand.

3. Bar Status – Interestingly, even though the DC Bar has already opined that being barred in D.C. is a prerequisite to performing contract attorney work in the state, many D.C. agencies still continue to staff projects using non-D.C. barred J.D.’s. However, many agencies do express high preference for those with the proper D.C. license and most will refuse to pay the standard contract attorney rate without it. Expect to be either rejected outright for project submission if you don’t have your D.C. bar certification or be offered only a paralegal’s wage of about $25 an hour.
4. Experience – Fortunately or unfortunately depending on how you look at it, contract attorney work consisting of mainly document review does not require substantial legal experience. However, for those of you with more years of document review management experience, you may have more opportunities to be assigned to the privilege review and quality control team. Keep in mind that although it’s sometimes negotiable, usually you aren’t offered any extra compensation for the higher level work. That’s probably why some people avoid second level or privilege review work.
5. Length Of Project – Longer duration projects tend to pay slightly less than those that have shorter duration, at least initially when agencies are fielding candidate offers. The rationale is that – what you lose in wage rate you gain in longevity. From my experience, most people tend to glaze over the duration aspect and prefer to lock onto projects that offer short sprints of high billable hour opportunities. It’s just something I’ve observed and is not necessarily a consistent occurrence.
6. Size Of Staffing Agency – Due to their greater bargaining position, bigger staffing agencies are less generous about negotiating with contract attorneys over their wage rates and more willing to withhold benefits and posture. Small potato agencies have little choice but to negotiate sometimes. They can’t compete on brand recognition so they have to offer greater incentives to entice contract attorneys – thus they usually pay more. For a project that a large agency like Ajilon may pay the standard $35 an hour for, a smaller agency may be willing to shell out $36-$38 an hour. Go with the smaller agencies if you can, although it is true, the number of projects they have to offer simply isn’t as high as the big boys.
7. Market Supply and Demand – When the market’s booming, contract attorneys rake it in. Unfortunately the boom has past and we are currently in a bust period as evidenced by all the recent law firm layoffs. The market is pretty bad right now. There are projects out there but most are for shorter durations and offering less hours. Also, expect to wait longer than usual to come across an offer. Without consecutive, multiple, and simultaneous demands for contract attorneys, wage rates will stagnate in the interim. However, when the market eventually picks up again in the near future and law firm business returns, demand pressure should drive wage rates up. That’s my hope. It’s happened in the past before and it should happen again.
8. Specific Law Firm Managing the Project – Certain law firms are well known for running generous projects – Skadden, Arps, Slate, Meagher & Flom for one. They seem to have a reputation for providing projects that offer full meals, transportation reimbursement, and extended working opportunities for their contract attorneys. They also have a propensity to offer slightly higher wage rates for team leader type positions. Of course, it’s not always this way for every project they manage, but it’s just an interesting tidbit to keep in mind when you hear about projects.

According to the official bar complaint, the respondent contract attorney signed an agreement with Ajilon Legal Staffing to perform contract attorney work for the law firm of Mayer, Brown, Rowe & Maw. The contract attorney was staffed onto a document review project that paid $35 per billable hour. His work was performed on an online document review system that presumably tracked his review activity. During the 2 week working period, the respondent submitted time sheets presenting that he worked a total of 135 hours. However, it was later allegedly discovered that he had only actually worked 51 hours and 45 minutes, quite a large discrepancy for such a short period of time. The complaint indicates he was paid $4,725 for his time sheet hours, but that he fraudulently overbilled by $2,913.75, improperly inflating his billable hours by more than 84 hours during that 2 week period.

My Thoughts – Yes There Is A Lot Of Hypocrisy Going On, But Unethical Behavior Is Still Wrong

As a preliminary matter, I think official bar sanctions against this contract attorney would be perfectly warranted if the facts are found to be true. If the allegations are verified and confirmed, it’s difficult to offer him much sympathy due to the specifics of the facts, although I personally feel the case should have been resolved internally. He allegedly overbilled by more than 84 hours in a 2 week period! We’re not talking about tacking on a lazy 1 hour or rounding up to the next 30 minute mark every day. The attorney overbilled by more than 10 full working days, an astonishing number. Calling him a modern day Robin Hood because he robbed from the rich (big firms and agencies) to pay the poor (um, himself?) is a tad misguided. We can find better ways to boost the wage rate and increase project compensation than performing such unethical activity. It’s not that I’m preaching against such activity, I just feel such activity undermines our objectives completely and only serves to make contract attorneys look even worse than some already view us.

However, I’m curious as to what motivated the Illinois State Bar to tackle on this particular case when there are much bigger fish to fry among the denizens of the large law firms where overbilling is a frequent way of life. For example, I’m currently on one of those projects that keeps getting dragged out with little end in sight. After a few conversations with the managing associates, it seems the law firm partners are in no hurry to rush the case so long as they can continue raking in the billable hours. I got the unspoken vibe from the associate that she had no problem with us dragging out our review and continuing to let the firm bill the client, a company that has continued to pay its legal fees without much protest.

If the various state bars wanted to tackle this growing billable hour inflation issue, rather than going after contract attorneys, their resources would be better served going after the chief operators, the law firm partners and senior associates that cave to the pressure of generating billable hours and profits. There is truly a lot of strange hypocrisy going on today in the legal world where deceptive markup practices are prevalent, but its members still talk about fair compensation and billing. While contract attorneys like myself are sometimes offered little in terms of professional movement and prestige – having to fight and scrape for every project and permanent offer opportunity, we are still expected to abide by the high strict standards of professional conduct among full fledge attorneys.

Articles like the ones discussed help to serve as eye openers for contract attorneys. Document review programs do use sophisticated metrics to track worker productivity and usage statistics, so if the firm wanted to, it could certainly verify the accuracy of billable hours. If you do things like round up your hours, it’s important to at least be cognizant that there is indeed a digital trail that is retained. Most cases do seem to go unnoticed, but outrageous violations are bound to be caught – such as the story of this one guy who decided to straddle two different staffing agencies that were staffing the same project. He somehow ended up being separately assigned to the same project location by two different agencies who were unaware that the other agency was also staffing him. The contract attorney ended up collecting two pay checks for some time but was eventually busted. I don’t think bar sanctions were levied but he was summarily let go. Fortunately for him, he was not working or barred in the state of Illinois.

The contract attorney experiences of those in New York City tend to be a bit nuttier and off the wall than those in other locations. I’m not sure if this is because of the type of people who do contract work in New York or because I’ve only been exposed to a skewed and limited cross section of opinions, but New York City projects seem to be in a weird world by itself. But for this entry let me just discuss what I’ve learned so far about the L.A. contract attorney experience.

Differences Between Los Angeles. and Washington D.C.

I have a friend who has worked in both Washington D.C. and now in the city of L.A. as a contract attorney, so I decided to ask about the differences between working in these two locations. My friend also solicited comments from current L.A. contract attorney co-workers and here are a few interesting observations:

1. L.A. contract attorneys spend 2-3 hours driving in traffic every day to get to work and spend a ton of money on unsubsidized parking and on the nation’s priciest gas. Most of the work is centralized in the city or on the west-side so getting in and out is a daily nightmare. In D.C., commuting by car is difficult but not impossible. Many choose to avoid D.C. traffic altogether by taking the more convenient Metro subway trains. Yes, they seem to have a propensity to break down and spark mini fires, but they generally run predictably.
2. Subsidized limousine and taxi rides are unheard of for L.A. contract attorney projects. With the nation’s most congested highways and longest commute times it’s not hard too see why subsidized rides home wouldn’t work in L.A. Washington D.C. and New York City are more compact and many live in the city – so it’s a more workable option for the latter two.
3. Projects in excess of 50 hours are rare in L.A. I’ve worked 95 hour projects in D.C. but apparently in L.A., such lucrative extended overtime hour projects are almost unheard of. I’m sure they exist, but they are just very few and far between. D.C. and NYC tend to get the bulk of the juicy long hour projects.
4. Catered meals are not common in L.A. either, although they are the exception not necessarily the rule here in D.C. They are usually offered by agencies and firms to encourage contract attorneys to stay at work longer so you’re more likely to receive catered meals or subsidies when the project office hours extend into the late evening. Since L.A. projects tend to have shorter hours, there is less need or motivation for agencies and law firms there to provide them.
5. The L.A. contract attorney market is very unpredictable and stagnant right now. Welcome to the unstable world of contract attorneys! It’s like that everywhere, although D.C. and NYC tend to have more established and predictable contract attorney job outlooks. Even in a tough economy like this though there are still projects to be had. You just have to dig deeper but they’re out there.
6. There are many non-California barred attorneys doing contract work in L.A. I’m not familiar with California’s bar requirements, but unlike Washington D.C., California does not seem to overwhelmingly require contract attorneys to be barred in their own state. At least not yet.
7. Wage rates in L.A. average around $35 but sometimes they can be as low as $30. Factoring in the high cost of living there, it’s not hard to see why L.A.’ers get the short end of the bargain. Here in D.C. it’s pretty stable at $35 although I’m hoping it’ll rise sometime. NYC seems to have the highest wage rate, but their cost of living is astronomical as well.
8. Overtime regulations in California differ from D.C.’s. In D.C. contract attorneys get overtime of time and a half for hours worked in excess of 40 cumulatively for the week. In California, they get time and a half overtime after working 8 hours every day up to and including 12 hours. They get double rate after 12 hours. Good deal, except they never get to fully take advantage of it due to their mostly low hour projects.
9. Apparently, there are many contract attorneys in L.A. who are also part time aspiring actors, writers, and movie producers. Surprise, it’s L.A. where everyone thinks they are a model or an up and coming actress, hoping to get discovered. Not too many of those in D.C. although I’ve seen and met a few contract attorneys who are always working on their novels and hoping to get published someday.
10. On the whole, L.A. projects tend to be well managed and not very “sweat-shoppy” as my friend put it. I think D.C. projects are generally well managed as well, although there is at least one agency here that enjoys running their projects like a boot camp.

The verdict? Contract attorney work in Washington D.C. pays better, offers better hours, better perks, and offers greater stability with more project opportunities than our brethren enjoy on the west coast. Although I must point out that over there they have much better weather and much better places to eat than here in D.C.

Earning extra overtime is certainly great, but it’s just not worth the extra sacrifice for me right now. There are more important places I need to be at and more important people I need to be with during this time than spending it cooped up in an unventilated, stuffy room clicking away on a computer.

Knowing When To Keep Time Off Information To Yourself

It’s been a wonderful luxury to be able to set my own working schedule. Since the summer I’ve been working on the same project and have taken a few days off here and there. In general, agencies don’t mind when you take very infrequent time off but when you do it too often they are likely to see it as a serious problem that warrants prompt terminative action. Some agencies are more stringent than others and will ask before submitting you for a particular project whether you intend to take any time off during the expected duration of the assignment. If your response is anything but an emphatic no, it is likely that the agency will take a pass on you and choose to submit someone else for consideration. Some agencies won’t even submit you if they believe you intend to take time off while the project’s ongoing. When you are not working, you are not billing hours. When you are not billing, the agency is not earning their cut off of your efforts. Thus, unless you plan on taking a very significant period of time off, my suggestion is to keep tight lipped about any anticipated vacation plans when asked by the agency.

Agencies are notorious for providing very inaccurate projections and overestimations of project duration. I understand that sometimes it’s not possible to pinpoint exactly how long something will last, but I think certain agencies frequently provide exaggerations to coax more interest from prospective contract attorney applicants. This makes it extra difficult to plan vacations around project estimations.

So I think it is in every contract attorney’s own working interest not to reveal whether he or she plans on taking time off when inquiring about project availability. Disclosing such information to the agency will only lead to negative results in you not being considered for projects that you would otherwise have been submitted for. Besides, deciding when and if you plan on taking time off in the contract attorney business is a very fluid decisional process. Originally I thought I would try to maximize my working hours and overtime opportunities by plugging through the holidays, but I ultimately reconsidered and decided my time would be better spent with family and loved ones. Money is important, but it’s not every thing. Heeding my own advice, I didn’t alert the agency until the last possible moment (a few days before my planned time off), although I did reasonably make sure the project would not be too understaffed while I was away.

I Was Paid Less Than The Other Temps On the Project

When I first started doing contract work not too long ago, I was staffed on a long term project by an agency that offered me a wage rate slightly lower than the market rate of $35. Despite my initial hesitation, I took the assignment because there were promises made by the agency that the project had the potential to last a very long time. Because longevity is a valuable commodity in the temporary lawyer business, I agreed to the slight wage reduction as consideration for the opportunity to work on a longer duration project.

A few months into it, I was sitting at my computer command station with my headphones on when I casually overhead two contract attorneys discussing their document review experiences. One temp had been on the project before I came along and another had only recently joined the team. The subject of wage rate disparity came up and the newer temp mentioned that the agency was paying him a rate of $35 an hour. The older temp immediately became agitated and expressed his shock and incredulity. Apparently the older temp was only being paid $33 and had been under the impression all this time that everyone else was being compensated at the same rate. The only reason he had agreed to the pay cut was because the agency had promised a long stint.

This information disturbed me greatly. After all, I later learned, we were all DC barred and likely being billed off at the same rate. Eventually more contract attorneys joined the conversation, and we discovered that only the newer temps were being paid the slightly higher wage rate. Several of us immediately called the agency to demand an explanation. After several attempts at feigning innocence and putting the blame on the law firm, the agency agreed to bump the wage rates of those affected to the same rate as everyone else. Requests for retroactive application were rejected.

Comparatively, my story is tamer than the ones I’ve heard from some other people. One individual being staffed on a supposedly lucrative foreign language review was being paid a rate of $40 an hour. It was not until a few months into the project that she learned that her similarly situated peers were being compensated at $53.

While not legally improper, the practice of paying different wage rates is very distasteful and underhanded. While not all legal staffing agencies practice this, some do, and those that do this give the rest a bad name.

Temporary Legal Staffing Agencies Try To Limit Information To Maintain their Competitive Edge

Many legal temp agencies try to make the discussion of certain subjects taboo. Most, if not all contract attorney staffing agencies have their own boiler plate employee policies that expressly prohibit temps from discussing topics such as wage rate. The conclusion I can draw is that agencies want to adopt policies that will allow them to maintain competitive control over their temps. While they want the strategic right to offer different deals to different contract attorneys, they also want to limit key information that could cause rebellion or unrest in Temp Town.

I think these agencies must be really naive if they think they can perpetually keep their contract attorneys in the dark. You know what they say. You can fool some of the people all of the time, and you can fool all of the people some of the time, but you can’t fool all of the people all of the time.

Agencies will not be able to fully prevent contract attorneys from talking among themselves regarding subjects like compensation. If legal staffing agencies want to encourage loyalty among their contract attorneys and ensure quality of effort and work, it’s in their own interest to maintain fairness in how they treat their contract employees. There is nothing good that can come out of paying similarly situated workers differently.

I will not list names at this time, but I know many contract attorneys are already well aware of which agencies have this type of shady practice. Their tainted names are routinely circulated among those in Temp Town.

While most people see the holidays as a time to relax and take time off to spend with family, many contract attorneys, such as myself see it as the bonus months. There will always be plenty of time to take a vacation and unwind – after the project is over. When the project is still ongoing, my commitment is to taking advantage of overtime opportunities and maxing out my available hours.

Extra Overtime For Holiday Work

Most legal staffing agencies and law firms have a policy of providing contract attorneys paid holidays. What this means is that if you come in to work on an official paid holiday such as Fourth of July or Christmas for example, you are automatically paid at the overtime rate for all hours worked that day, and all hours logged will also be applied towards the usual 40 hours for the week. Once you hit 40 hours, the usual overtime rules kick in again and you get overtime thereafter. In essence your hours worked during paid holidays are performing double duty.

I know, it sounds like I’m all about the money and like I place less importance on family time during the holidays, but you should know, there is no obligation to stay the entire day. Most agencies and firms are more lenient during those paid holidays. You can usually come in and stay for as long as you want up to the maximum allotted time to earn your automatic overtime and leave earlier than usual to be with your family. Work schedules during paid holidays are generally more flexible, and even the supervising associates are usually eager to get home soon so they frequently don’t stay the entire time.

Remember, the double bonus hours you get during paid holidays don’t come along that often. Most of them occur during the winter season so do try to take advantage. It’ll help pay for all the Nintendo Wii’s and stocking stuffers you’ll be buying when December rolls around.

In a healthy job market when projects are plentiful, making a six figure income or more a year is not only possible, I would go as far as to say it is a likely occurrence. Of course, it would depend on your ability to successfully roll from one project to another. Even after factoring some downtime and gaps in between, a lucrative temp income is not out of the question.

The current recessive job market we are experiencing makes it more difficult to roll, but hitting six figures is still a very reasonable target. It simply may require more agency networking and persistence. Because the market’s a bit tight right now, you can’t passively wait for project announcements to be posted on the listservs. You need to take active initiative to bug the agencies and remind them of your availability on a routine basis.

Concept of Contract Attorney Pay As Fast Money

Interestingly, I have heard some refer to contract attorney pay as “stripper money” – categorized as the type of significant money that can be earned within a very short period of time through tasks that supposedly don’t lead to any future professional enhancement. I might disagree a bit about the latter part of that statement, but the first part is frequently true. Because most contract attorneys are paid overtime wages of time and a half for hours worked beyond 40, we are capable of earning a significant amount within a short period of time. It all depends on how many hours you are willing to put in.

I’ve worked a wide range of hours and personally have no problem with the varying project hour availabilities, but I know many contract attorneys who absolutely embrace and demand long hours. Long billable hours means more overtime and massive overtime can lead to big bucks. Many temps are frequently disappointed if not very upset when hours are cut back as such rollbacks greatly affect their bottom line.

Working 100+ Hours

I’ve had my share of long hours before and let me tell you, working that long is not easy. But at the end of each week, the resulting jackpot paycheck that greeted me was always worth it. Just don’t expect to accomplish much at home during those extreme hour weeks – this includes laundry, family time, sleep, and even personal grooming and hygiene for some people.

At the start of this year, I worked on a project that offered virtually unlimited office hours. Dinner was reimbursed up to $25 and transportation costs were covered. Working conditions were decent, associate supervision was reasonable, and internet access was not restricted. A few contract attorneys and I were separated from the main pack due to room overflow issues, so we essentially ended up with our own private room.

The members of my little posse all worked very long hours, and we took turns encouraging each other when energy and morale was low. Because our food expenses were covered and the office hours were so long, I essentially lived there for several weeks straight. I worked 5 weeks continuously, 7 days a week and racked up nearly 100+ billable hours each week. Needless to say, that one month span was my most successful contract attorney experience to date in terms of financial payoff.

I’m sure I contributed many productive hours for the client. It wouldn’t have been possible if the working conditions were oppressive. It was only possible because the agency and law firm created a commendable working environment that was ideal and conducive for extended hour work.

Extreme Hour Projects Are Rare So Take Full Advantage

There were times I wanted to just go home, but I knew such ideal overtime-heavy projects were not easy to come by so I made the effort to stick it out for the long haul. When you are on one of those kind of projects, you really need to maximize the opportunity. You have the potential to earn more than 2-3 months worth of income within a single month’s time. Contract attorney work can be occasionally unpredictable so when you have the chance to work and earn a lot of overtime in such a short burst of time, it is in your long term interest to stay the course.

I’m sure everyone has similar war stories of working those long hour projects. I hope they were good experiences.

When it comes to learning a foreign language, conventional wisdom is that you take classes in a language that is popular and spoken by many. After all, what is the point of language if you can’t find anybody to communicate with?

However, in the world of contract attorneys, conventional wisdom doesn’t always apply. So you know French and Spanish and want to do foreign language document review. Well guess what? There are plenty of individuals out there who are fluent in those two languages as well and can perform the same translation skills as you can. That is why when it comes to foreign language projects, the demand for the more common languages isn’t as high as that of the more obscure languages. Obscurity in this case doesn’t mean that no one in the population speaks it. It just means of all the fluent speakers, fewer of them are actually attorneys.

Supply and Demand Means Big Money For Asian Languages

Now if you really want to become hot commodity, you’ll need to dive into the more obscure languages – languages like Swedish or Norwegian. However, the pinnacle of in-demand foreign languages is fluency in one of the Asian languages, such as Chinese, Korean, or Japanese. If you are a native speaker and can reasonably perform legal translation in those languages, you are good as gold. The current market rate for contract attorneys who can perform Asian language document review is $50-55 an hour, with a whopping $75 per hour for overtime. It’s simple supply and demand. There are simply relatively very few contract attorneys that can speak or read any of the Asian languages. Legal staffing agencies would love not having to pay such a high rate, but they know that they wouldn’t be able to recruit any Asian language contract attorneys otherwise.

Learning a new language is difficult and the task of learning Chinese, Korean, or Japanese is probably even more insurmountably difficult. But some of you may already have a basic background or foundation in a language other than English. If you do, I encourage you to brush up on your reading comprehension and translation skills. You will be increasing your marketability not only for contract attorney projects, but also improving your employment prospects should you decide to ultimately pursue permanent employment.

For those of you up to the task, I’d suggest that you start taking classes at a local college or even performing self study through an online course like Rosetta Stone. The language skills you acquire will likely pay dividends in the future.

An interesting issue that I’ve been wondering about is whether some of these flat rate agencies and law firms are violating the Fair Labor Standards Act (FLSA) by not providing its employees time and a half compensation for time worked beyond 40 hours.

Does FLSA Require Contract Attorneys To Be Paid Overtime?

I’m not attempting a complete legal analysis but my understanding of FLSA in the matter boils down to the following. Under the FLSA ,workers who are not otherwise exempt from the statute are guaranteed the right to overtime pay, or time and a half for every hour worked beyond the normal 40 hour work week. For white collar workers such as attorneys, three basic tests determine whether they are exempt from FLSA overtime requirements. If they fulfill the three basic tests, they are exempt and thus not required to receive overtime pay. If they are not exempt, they are eligible for overtime.

To be exempt from overtime, contract attorneys must satisfy the following tests:

1. Salary Level Test – Firstly, employees earning less than $23,600 per year ($455 per week) cannot be exempt. Average contract attorneys are almost certainly exempt since they are likely to earn more than the threshold.
2. Salary Basis Test - Secondly, employees must be paid a set salary and not an hourly wage in order to be exempt. However, the FLSA actually excludes lawyers from this requirement, and thus lawyers may be considered exempt even if they are paid hourly.
3. Duties Test- Thirdly, a worker cannot be denied overtime pay unless his or her duties are primarily administrative, professional, or executive in nature.

My Opinion

I think as an initial matter, contract attorneys are not independent contractors, since we are at-will employees of the agency or law firm that employs us.

Under the tests outlined above, I believe contract attorneys are exempt from the overtime requirements of the FLSA. The only question regarding overtime exemption is the third duties test of whether contract attorney work is considered professional in nature. Can we really consider document review work to be professional in nature and not merely clerical? I submit that it is. While document review does not entail mind blowing legal skills to say the least, it does require understanding of legal procedure and terminology. The legal skills and analyses required are dependent on the type of project and on the level of expected interaction between contract attorneys and managing associates. As contract attorneys, we support the project and oftentimes may be called upon to provide our legal opinion to the team and draw upon our prior experience, e.g. discussing privilege claims issues.

Additionally, as licensed professionals, we are also subject to all applicable standards of practice and conduct while on the job. Therefore, even if it is document review, it constitutes the practice of law and ethical violations such as over-billing could lead to bar sanctions.

Thus, while I don’t believe contract attorneys are statutorily required to receive overtime compensation, I do note that it has become common expected practice for document reviewers to be paid in such fashion. Currently, I don’t think there is industry consensus about whether contract attorneys are exempt from overtime requirements under FLSA. How the overtime compensation trend got started I’m not sure, but most contract attorneys today request overtime compensation and agencies predominantly oblige. I think law firms and agencies agree to pay the extra overtime now for competitive reasons rather than legal obligation. Like some commentators have pointed out, we are a finite resource.

I’m sure many contract attorneys are also members of The Posse List, and if you haven’t already done so, I highly recommend registering for their e-mail listserv. They protect the identities of their members and offer plenty of contract attorney employment related information. You may have already read the recent market status e-mail from them, but here is the excerpt:

Yes, it is very slow. Things have tightened up for a few reasons, and the mega-attorney projects are far and few between. We believe it’s based on the following reasons:

1. The financial market turmoil has put a number of projects on hold. We discussed the situation with our contacts at various DC and NYC law firms (associates and staff attorneys we have known a long time who are in the loop on projects that will need contract attorneys) and they pretty much hone to the same line: “the deals that must be done by fiscal/calendar year end December 31 are in progress. Everything else can wait”. If you monitor DealBook, Deal Digest, and Deal.com you get the same story. Postings for contract attorney work on Craigslist and Monster.com are also down for DC, NYC, LA, San Francisco, and Chicago.
2. The new changes in the DOJ/FTC review process (instituted last year) have cut-down on the number of attorneys needed for projects, as well as the review time needed for those projects. For example, Google/DoubleClick, a huge deal, got done with a total of 80 attorneys on both sides. (later corrected to 90 on the Google side and 40 on the DoubleClick side)
3. We monitor Hart-Scott-Rodino filings, and they are also way down. Angela also tracks corporate activity through SEC filings via our Edgar search programs and activity is quiet.

   That does not mean nothing is going on. Based on D.C. Posse member feedback, we count between 10-15 projects out there, though all are small. NYC Posse members rang in with about 10 projects. There are not a lot of complex litigation reviews around but we counted about 3 in D.C. and 5 in NYC based on Posse member feedback. And there are a lot of small (1-3 attorney) projects.

   NOTE: We do not get/hear about/see everything. When the market is this slow, agencies can staff internally. And of course there’s Intel out in Falls Church.

   Markets will fluctuate. We saw this “dry” pattern post-9/11 through mid-2002. Our busiest listserv right now is foreign language, with Europe a close second. There are two large (comparatively speaking) reviews in Brussels: one in progress and about to ramp up. And before you swamp us with emails, the first prerequisites: you need to be an EU national with either a U.S. law degree or a U.S. LLM. Those projects are posted to our Europe listserv. Go to [The Posse List] to see/subscribe to our various listservs.

   The good news: of the 10 D.C. law firms we spoke with, we guesstimated they’d generate about 8-10 projects between now and end of the year. One of those DC law firm has 3 projects in the pipeline.

   The NYC firms saw about the same, but none are big projects. We will see it when we see it. As indicated, these were guesstimates.

I’m currently a contract attorney. On my projects I encounter attorneys from all legal backgrounds and graduates from all law school tiers. However, whenever I bump into someone who was a great student from a top tier school like Georgetown Law, I always stop to think about how far the legal profession has fallen. Even these top tier law school graduates lament to me about how tough the market is and how difficult it is to find proper full time employment. They too are finding it extremely difficult to rise above the sea of attorneys. Many end up changing professions altogether or choose to perform temporary contract attorney work. Some toll away in jobs that pay the same as that of clerical workers as they struggle to find a way out. The drowning pain is further compounded by the often crushing student loan debt numbering in the six figures that frequently accompanies law graduates.

Too Many Law School Creating Too Many Law Graduates

There are simply too many lawyers out there and law schools are facilitating this never ending deluge of new attorneys by continuing to graduate more and more lawyers. Unlike other major professions, there are over 4 tiers of law schools and new law schools are added every year to keep up with the demand of students who blindly want to become lawyers. Many of these law school hopefuls hope to chase the commonly hyped fantasy of landing a big time job at a law firm working 40 hours a week and making millions. These law school hopefuls need to know that the legal market already has more than it can handle. There are better academic and professional options out there. Did you know there are only 1/3 as many medical schools as there are law schools? Do we really need so many lawyers? If law school bound college students only knew.

I’m glad the Wall Street Journal article was published. It helps to shed public light on a serious epidemic in the legal profession. An attorney is still a prestigious profession but when you have over saturation, it loses its prestige and you become a dime a dozen. You have all of these easy political science, English, and history majors enrolling in law schools because they don’t know what else to do with their majors. It will take time, but hopefully such discussion will cause a shift in the legal profession for the better. Despite my usual optimism, I don’t have much hope for this. There are too many stakeholders such as a large firms and law schools that will never want the lawyer making machine to slow down.

In 2005 the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law issued its opinion requiring contracts attorneys working in D.C. to be barred. This caused the prior variations in wage rate to stabilize at the higher $35 an hour for D.C. barred contract attorneys. However, since then, there has been little change or forward progress.

The recent appearance of new legal staffing agencies in Washington D.C. brings hope that this might lead to some needed changes. Smaller staffing agencies that are not as well known, such as Palmer Legal, have recently been heard offering their contract attorneys higher wage rates ($38) to better compete against the bigger agencies. I am not sure if this is their new approach but there has been at least one recently advertised project that they were staffing in which they offered the higher wage rate. Newcomers such as Solomon-Page Group have also been offering slightly higher wage rates as well. I think it would be very prudent to seek them out. They want to better compete and we should certainly encourage them. When the staffing agencies compete, contract attorneys win out.