America’s contract attorneys: test subjects for enhanced monitoring, disposable cogs with no workday privacy
16 November 2021 – Oh, we all knew it. We knew attorneys who work from coffee shops, van life vehicles, and basements were not productive. Billing hours is easy; doing work like reading documents, fiddling with eDiscovery systems, and trying to get Microsoft Word to number lines correctly are a bit harder.
Earlier this week my team posted an article from The Washington Post about contract attorneys and the growing invasion of surveillance programs that monitor their work. We had a bit of a hand in the article. I provided the reporter a long dissertation on how the contract attorney industry worked, and my team put him in touch with a number of contract attorneys for the article. It’s mostly a bunch of GenX, GenY and millennials who are pretty angry with surveillance software dolled up with facial recognition, “productivity” metrics, and baked in time logging functions. The post generated one of our highest metrics ever: a 62% open rate and 3,600 email responses – and they are still coming in.
Note: this past summer I wrote a long piece on the shift to remote work during the pandemic which brought increased use of surveillance technology, detailing all the types of technology employers are using.
I think the key passage in The Washington Post article is this one:
Contract attorneys such as Anidi have become some of America’s first test subjects for this enhanced monitoring, and many are reporting frustrating results, saying the glitchy systems make them feel like a disposable cog with little workday privacy.
One of the drivers behind all of this was that early on in the pandemic when remote work took hold, law firms and agencies realized many contract attorneys were working multiple gigs at the same time. There may have been issues regarding conflicts of interest but the real issue for law firms was “are we getting what we are paying for?” With some clients pushing back against legal bills which are disconnected from what law firm clients perceive as reality, legal outfits have to get their humanoid resources to “perform”. I spoke to several law firm contacts (as well as a few eDiscovery corporate counsel) and the response was pretty much the same. A composite quote:
These monitoring systems now allow us to review outputs from the contract attorney systems … and you better believe we are reviewing the reviewers.
For law firms it’s a case of “Ah, ha, dear client. We can prove with real data our legal eagles are endlessly circling the client’s legal jungle!”
Well, my take is different and my regular readers know I am pretty much a cynic when it comes to “the law”. I never saw it as a “profession”. It’s just another tool in the tool box. After university I did three years on Wall Street plus a stint in the military so a taste of the real world before law school made me pretty jaded.
Nah, most people don’t like nor trust lawyers (they’ve killed American “justice”; deal with it) so this is simply a case of lawyers employing lawyers who they don’t trust either. Pretty much why employers want people to get back to work on-site, have managers who can physically monitor – and keep the professionals from hanging out at Starbucks.
As far as working multiple projects at once and conflicts of interest, it’s a simple case. In every U.S. jurisdiction, lawyers are licensed officers of the court, subject to the same ethical rules and sanctions as all attorneys. They took an oath of honor as required by being sworn in as lawyers. And every bar code states you can work multiple assignments so long as it’s not a legal conflict, so long as you are not comprising confidentiality. Bar codes prevent restrictions on lawyers taking on several matters so long as they follow the tenents noted herein.
Note: contract attorneys in several states have filed requests for formal opinions from their bar associations as to whether to restrictions on contract attorneys working multiple matters simultaneously is a violation of the state’s bar code. Two of those jurisdictions have already ruled that contract attorneys doing document review are not full-time employees but “temps” no matter their W-2 status. My team will have an update in due course.
But corporate paranoia reigns supreme. Many of these document reviews involve vicious battles with the Feds or with competitors. Think Big Pharma and the recent opioid cases. Or those infamous VW braking cases. These firms are terrified of getting information into the hands of the enemy. They envision competitors invading the document world of “juicy,” incriminating documents. They envision contract lawyers getting a bonus by sharing hot documents or writing an anonymous letter containing quotes from hot documents. Consequently I think they view these technological surveillance oversight systems as their survival weapon.
And contract attorneys? Oh, they are hardly ever treated as professionals or paid as professionals. Many staffing agencies do try but the economics of the legal industry work against them. Read the Postscript my team put together here. It sums up their horrible lot. And now they have good reason to wonder why the pay rates still remain so low given the savings on rent, utilities, supplies and all the other operating expenses of document review agencies and law firms. And contract attorneys are forced to use their own computers in most remote work assignments with no additional compensation. The savings to these companies are a windfall yet the rates paid to reviewers are basically the same. But let’s cut to the chase. It’s all part of “The Law Factory”. Unless and until there are far less attorneys and the demand for lawyers actually outstrips the supply, crappy low paying document review projects are here to stay. I know lawyers aren’t good at math, but this is a pretty basic equation.
Bottom line: contract attorneys are mere cogs in that machine called the commercial eDiscovery industrial complex.
And surveillance, facial recognition and otherwise? Here to stay. Employers have realized that the technology they use for surveillance of at-home workers will work just as well on-site. The installation of “bossware” across desktops, laptops and smartphones in order to maintain productivity and cut down on so-called cyber-slacking works very well on-site. A Politico study found that 78% of Fortune 1000 employers currently use employee-monitoring software, one the biggest being Hubstaff whose products track a worker’s mouse movements, keyboard strokes, browsing history, email, file transfers, and applications used. Hubstaff has enjoyed runaway sales. Similarly, widely used cloud-office applications like Slack and Microsoft Teams collect data on when an employee is “active.”
Yeah, being under constant surveillance in the workplace (be it at home or the office) is psychological abuse. Having to worry about looking busy for the stats is the last thing we should be inflicting on anyone right now. But hey – we got a business to run, baby!