Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)

The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.

The case involved a lawyer who was hired to conduct document review by a law firm.  The lawyer was licensed in California but not in North Carolina where the document review would take place.  The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act.  However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.

The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.

The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments).  You can read the opinion itself here.

The Legal Profession Blog has a summary here and Above the Law has a short comment here.

What does this have to do with "artificial intelligence," the subject of my two previous posts today?   Two things:  1.  part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment.  Whether that is true or convincing remains a matter of debate, but that was part of the reasoning.  2.  to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.