Litigator of the Week: D. Maimon Kirschenbaum of Joseph & Kirschenbaum

Over the years, D. Maimon Kirschenbaum has filed enough wage-and-hour lawsuits against New York City’s eateries to earn a reputation as a scourge of the city’s high-end restaurant scene. But the 36-year-old Joseph & Kirschenbaum partner has also trained his sights on Big Law, challenging major law firms’ reliance on temporary contract lawyers for the drudgery of document review.

On Thursday, Kirschenbaum won his first important appellate victory in the contract lawyer cases. In a highly anticipated decision, the the U.S. Court of Appeals for the Second Circuit ruled that he and his client, a former contract attorney for Skadden, Arps, Slate, Meagher & Flom, can pursue unpaid wage claims against the firm.

Siding with Kirschenbaum, the Second Circuit panel reversed a lower court ruling that tossed Lola’s claims, reviving a putative collective action against Skadden and Tower Legal Staffing Inc. The case has been closely watched in part because it raises novel questions about what it means to practice law, including whether some legal work is mundane enough to trigger the overtime requirements of the Fair Labor Standards Act.

Before bringing the employment case, Lola was an aspiring patent lawyer, as documented in an insightful profile by Reuters blogger Alison Frankel. But about 10 years after finishing law school—and after some professional and personal turmoil, including a misdemeanor charge for carrying a concealed weapon—he was making his living as a contract lawyer in North Carolina.

In the lawsuit, brought in July 2013, Kirschenbaum argued that the document review work that Lola performed for Skadden was so monotonous that it didn’t qualify as practicing law. Therefore, Lola claimed, the work should fall outside an exemption for professionals in the FLSA’s overtime requirements.

As U.S. Circuit Judge Rosemary Pooler put it in reviving the case: “The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever.”

Kirschenbaum, not surprisingly, had nothing but praise for the Second Circuit’s ruling when we reached him Thursday afternoon. (Kirschenbaum said he hadn’t yet spoken with his client about the decision, and we were unable to contact Lola by press time.)

“I think it’s the best possible result for us,” Kirschenbaum said, noting that the lower court’s ruling had been vacated completely.

Kirschenbaum explained that Lola first contacted him about the wage claims after his firm received some press for lodging a similar lawsuit against Quinn Emanuel Urquhart & Sullivan. That suit is still pending in front of U.S. District Judge Ronnie Abrams in Manhattan. Kirschenbaum and contract lawyer William Henig managed in December 2013 to fend off a motion to dismiss by Quinn Emanuel, which is defending itself.

Skadden, however, fared better at the district court. In September, the firm’s outside lawyers at Ogletree Deakins Nash Smoak & Stewart convinced U.S. District Judge Richard Sullivan to dismiss the case. The judge held that even if Lola’s work was mechanical, it still fell within the FLSA’s professional exemption, which specifically states that attorneys engaged in the practice of law aren’t eligible for overtime.

(We named Ogletree Deakins’ Stephanie Aranyos and Brian Gershengorn Litigators of the Week for the district court win. Gershengorn, who argued the appeal for Skadden, didn’t respond to a request for comment on Thursday, and neither did a Skadden spokeswoman.)

Kirschenbaum, who has handled Lola’s case from the outset alongside associate Denise Schulman, argued the appeal at the Second Circuit. At the hearing in May, he urged the panel to devise a nationwide definition of what it means to practice law.

The appeals court declined that invitation on Thursday, finding instead that courts should look to state law—and in Lola’s case, North Carolina’s—to define the practice of law for FLSA purposes.

But the court nevertheless agreed with Kirschenbaum that even if North Carolina’s definition governs, practicing law likely requires a lawyer to exercise at least some legal judgment.

Although the Second Circuit’s ruling still requires Kirschenbaum to establish as fact what Lola alleges in the complaint, he sounded confident on Thursday that he’d be able to do just that. Kirschenbaum also believes the Second Circuit’s decision will ease his path in the Quinn Emanuel case.

“What’s clear to me is that the court is going to apply a similar standard to what we’ve been proposing,” he said.