The sad tale of the contract lawyer who sued Skadden (and lost)

September 17, 2014

David Lola wanted to be a patent lawyer. He’d been a chemistry major at the University of Texas, then gone to work as a pharmaceutical researcher for Warner-Lambert. But when the company said it would pay his way through law school, he took the offer. Lola applied to only one school, the University of San Diego School of Law, because it was close by. His plan was to keep working as a scientist at Warner-Lambert until he earned his law degree, then to switch over to advising the company on patenting the drugs it developed.

The plan didn’t work out. There are all sorts of reasons why: big things like Warner-Lambert’s merger with Pfizer and the bust of 2001; and personal tragedies like a car accident and a failed marriage. A decade after Lola graduated from law school in 2003, he was eking out a living as a contract lawyer in North Carolina, reviewing documents for Skadden, Arps, Slate, Meagher & Flom for $25 an hour. Lola regarded his duties as clerical. According to him, all he did was scan for assigned search terms and click pre-set buttons when he found them. Lola decided that if he was going to do work that didn’t require a law degree, he wanted to be paid overtime when he put in more than 40 hours a week. In 2013, he sued Skadden and Tower Legal Staffing, which was his actual employer on the document review, in a wage-and-hour class action in federal court in Manhattan.

Lola lost his case Tuesday. U.S. District Judge Richard Sullivan ruled that when lawyers provide legal services, they are deemed to be lawyers regardless of the specific duties of their job. And since lawyers are exempt from federal overtime provisions, Sullivan dismissed Lola’s suit.

Sullivan’s opinion is long on law and short on story. It left me wondering who David Lola is and why he became a contract lawyer. I learned a little about him from other filings in the case, in particular a sanctions motion in February by defense lawyers at Ogletree, Deakins, Nash, Smoak & Stewart. Ogletree claimed that Lola and his lawyers at Joseph & Kirschenbaum had misrepresented facts about Lola’s work on the Skadden documents. As evidence, they attached a resume Lola sent in response to a 2014 advertisement for contract lawyers. (Sullivan eventually said he didn’t see any obvious inconsistency between the resume and Lola’s complaint.)

The resume showed that Lola had kicked around a lot, first in California and then in North Carolina. He’d worked at a couple of law firms and tried to make a go of a solo practice, but he kept filling in the gaps with document review for legal staffing companies. Was Lola a victim of the much-publicized glut of young law school graduates who can’t find steady work as lawyers?

On Tuesday, I spoke with Lola. He told me that he was returning my call from his car, where he’d slept the night. Lola said he can’t get work anymore as a contract lawyer – no one wants to hire someone who sued his last employer, he said – and can no longer pay his bills, including his student loan debt. He said he’d like to be a patent examiner but he’d have to go back to school for a graduate degree in chemistry and he’s not sure it would be worth the cost. Lola told me he’s thinking about giving up on the law and getting a job building houses.

David Lola’s story – much of which I confirmed in public records and with a friend of his – is a cautionary tale. Some of his misfortunes are purely personal and I’m sure that his own actions have a lot to do with his predicament; in 2012, for instance, he was publicly reproved by the California Bar after he was charged with the misdemeanor of carrying a concealed weapon. But Lola is an (admittedly extreme) example of what can happen to people who go into debt in order to become lawyers, but can’t find jobs with high enough salaries to pay back their loans. “Like a lot of other lawyers, David is just looking for whatever he can find,” said Lola’s friend, a California lawyer who has also dabbled in document review. “The common theme is desperation.”

Bad luck first struck Lola’s legal career when he was still in law school. Pfizer acquired Warner-Lambert and ended his tuition reimbursement. He figured he’d pay for his degree by continuing to work full-time at Pfizer, Lola told me, but after he was hit by a car he had to stop working. When he graduated from law school in 2003, he said, he was laden with debt.

It wasn’t a great time to be entering the legal market in California. Firms had laid off associates after the tech bubble burst, Lola said, and competition was stiff. He got a job as an associate at a small firm in La Mesa, where he stayed for about a year. Six months later, he was hired by an insurance defense firm. That job lasted more than three years, but in 2009 he decided to start his own firm in San Diego. “He’s a very smart guy, he just never got into a traditional law firm environment,” said Lola’s friend, who asked to remain anonymous.

When Lola’s marriage began to fail, he and his wife – now former wife – moved east to be closer to her family. Lola couldn’t find work, he said, even though he tried bar associations, his law school’s placement office, whatever he could think of. In California, he’d done a couple of stints for legal placement firms that ran ads on Craigslist for lawyers willing to review documents for $25 or $30 an hour. He resorted to the same fallback in North Carolina. “It was an easy way to make money and I needed to make money,” Lola told me. “At some point you have to pay your bills, you have to eat.”

He picked up some contract work from Tower in North Carolina, he said, but he started to ask questions about it. He wasn’t licensed as a lawyer in North Carolina, so was he breaking ethical rules? Was he liable for malpractice? Who was his client, anyway? Lola said that when he asked Tower, he was told that if he wanted to keep the job, he should just complete his assignments.

“I’m not good at ‘go along to get along,'” Lola told me. “I ask a lot of questions. I guess that’s why I went into science.”

Lola searched the Internet and found employment lawyers who represented contract attorneys. They agreed to represent him; if they hadn’t, he said, he would have sued on his own. His suit against Skadden and Tower was filed in July 2013.

Tower, according to Lola, got hold of an updated version of his resume – the basis of the 2014 sanctions motion in the Skadden case – because he answered a blind ad for contract lawyers on Craigslist. If he’d known Tower was running the search, he wouldn’t have applied. Not that it would have mattered which firm was looking: Lola said that since he sued, no contract lawyer staffing outfits want to hire him.

Lola told me he doesn’t consider himself a victim. He said he just wanted to be paid based on the work he was doing, not based on his possession of a law license that has turned out not to be worth much. “Societally, this just can’t be beneficial,” he said.

I left messages for Lola’s lawyer, Maimon Kirschenbaum, and for defense counsel Stephanie Aranyos of Ogletree. Neither got back to me.

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