D.C. Court of Appeals Strikes Back at Non-Lawyer Firms That Provide Electronic Discovery

January 19th, 2012

For example, terms like “document review” and “the discovery process” encompass numerous discrete tasks, some of which involve the application of legal judgment and some of which do not.

Broad statements that a company can manage the entire document review or discovery process — by providing “soup-to-nuts” or “end-to-end” solutions, e.g. — have a serious potential to mislead. Accordingly, discovery services companies should avoid making such broad statements or at a minimum must include a prominent disclaimer stating that the company is not authorized to practice law or provide legal services in the District of Columbia, [emphasis added] and that the services offered by the company are limited to the non-legal, administrative aspects of document review and discovery projects.

In order to be effective, such a disclaimer must appear on the same page as the potentially misleading claim, must be in the same font size and in close proximity to the claim

This opinion interprets quite broadly the legal practice–including anything that involves the application of legal judgment.


Update: More from WSJ Law Blog:

Take Atlanta-based Excelerate Discovery, which describes its services this way: “Simply put, our experience in running your project –whether simply consulting or managing a soup-to-nuts document project from process to production is unparalleled.”

Clutch Group, another discovery services firm, tells prospective clients that its consultants ”minimize the burdens placed on junior associates and add expertise to the complex discovery process” and “develop and implement methods and manage the overall discovery process to yield efficiency and cost savings.”

Other companies boast of their employees’ legal backgrounds: “led by seasoned attorneys”; “significant in-house corporate legal experience”; “team of attorneys is highly skilled and experienced.”

All that is great, except these companies are not law firms. And if they’re not law firms, then the question is this: What services can they provide without violating regulations that prohibit them from practicing law?

Brandon Daniels, president of management services at Clutch Group, said companies like his operate in a new niche of professional services for law firms that is walled off from the practice of law.

“The amount of information that our clients are required to turn over requires a degree of managment expertise, technology expertise and process knowledge that typically aren’t core to law firms,” Daniels said. “When we say we’re taking over some of the work for junior associates, it’s not legal advice work. It’s the professional service needs that they might encounter.”

Is this practicing law?