The complaint in J-M Manufacturing Co. Inc. v. McDermott Will & Emery filed on June 2, 2011, in Los Angeles Superior Court (Case BC462832) has ignited several discussions in the legal community, including a 50-comment debate on the ABA Journal website under Debra Cassens Weiss' article,"Malpractice Suit Targets Quality of BigLaw's Temporary Lawyers." (See also, Corporate Counsel's "E-Discovery Nightmare: Client Cites McDermott's Use of Contract Lawyers in Malpractice Suit.")
According to the First Amended Complaint the firm allegedly produced 3,900 privileged records out of a production of 250,000 records — its second try after having been put on notice by the government that the initial production had included a number of apparently privileged records. Note that there has been no judicial determination that the 3,900 records were actually privileged.
As can be seen in the ABAJ comments, much of the debate centers on how contract lawyers are managed — or not managed — by law firms. J-M's allegations of improper mark-ups on the contract lawyers fees were dropped from the accounting claim in the First Amended Complaint but J-M asserts claims for legal malpractice based on failing to supervise attorneys and vendors, and billing for work not needed, poorly performed, or not performed.
The ABA Journal comments, none of which were tied to McDermott, include several by contract attorneys who recite multiple instances of poor management of contract review work and/or significant markups of contract lawyers fees. The comments also suggest long working hours under sometimes demeaning circumstances with minimal opportunties for advancement.
In Law Technology News' 2008 article "Can You Adapt?," Monica Bay observed that e-discovery "can be a gold mine for contract lawyers who for various reasons want short-term or part-time job commitments, but contract lawyering (especially in law firms) comes with strong caveats. By definition, staff and contract attorneys are second-class citizens, say many observers, who also worry about the effect these posts have on career opportunities for minority attorneys. According to ALM's Minority Law Journal ... a high percentage of staff attorneys are minority lawyers — filling posts where they make less money than full-time associates, receive fewer (if any) benefits, and have little job security or real advancement opportunities. 'Document review pits are a modern plantation,' one anonymous attorney commented on Joseph Miller's JDwired blog."
We wonder: Are the ABAJ comments just "sour grapes" by relatively few ex-contract attorneys — or do they reflect an endemic problem with selection, supervision, career path opportunties, motivation, and billing practices?
Let's hear from the contract attorneys — what are the actual conditions out there? Has it improved since Monica's report in 2008? Who are the best and worst law firms and agencies to work for and why?
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