Redefining the scope of "Law Practice" from the Lola vs. Skadden lawsuit and experience for Vietnam

Technology, especially artificial intelligence (AI), is rapidly changing the way many professions operate, and the law industry is not out of that spiral. The Lola case v. Skadden, Arps, Slate, Meagher & Flom LLP (Skaden),[1] a U.S.-based law firm, marked an important turning point in redefining the concept of "practicing law," as the Second Circuit Court of Appeals[2] ruled that tasks that can be performed entirely by machines are not considered practicing law. This ruling not only challenges the legal profession's monopoly in the United States, but also raises questions about how other countries, including Vietnam, should regulate the practice of law in the age of technology.

1. The Lola case sued Skadden

David Lola, a licensed contract attorney in California, worked for Skadden through Tower Legal Staffing in North Carolina from 2012 to 2013. Lola's job is to review documents for an interdistrict lawsuit in the Northern District Court of Appeals for the Northern District of Ohio, including keyword searches, document classification, and masking information according to the protocol provided. This work is closely monitored, does not require independent legal judgment, and the majority of the document is pre-processed by predictive encryption software. Lola is paid $25 an hour, works 45–55 hours a week, but does not receive overtime pay for hours exceeding 40 hours per week.

In 2013, Lola sued Skadden and Tower under the Fair Labor Standards Act (FLSA), demanding overtime pay, arguing that his work was not "practicing law," and therefore was not exempt from the FLSA. The U.S. District Court for the Southern District of New York dismissed the lawsuit, arguing that reviewing documents is a "legal assistance service" under North Carolina law. However, Lola appealed to the Second Circuit Court of Appeals.

The appeals court reversed the first-instance court's ruling, emphasizing that Lola's work did not involve legal judgment and could be performed by machines. During the hearing, Judge Raymond Lohier asked the decisive question: if a task can be performed by a machine, such as keyword search and document classification, how can it be considered "practicing law"? The court concluded: "An individual performing tasks that could be performed by a machine cannot be considered practicing law at all." This ruling determined that "practicing law" under North Carolina law requires at least a degree of independent legal judgment, which Lola's work does not meet.

2. Impact of the ruling

The Lola verdict has three main implications:

Narrowing the scope of "practicing law": Mechanical tasks, such as reviewing documents, may be excluded from the definition of "practicing law" as technology evolves, paving the way for automation in the legal profession.

Relaxation of professional regulations: Duties that are no longer considered "practicing law" may not be governed by professional rules, providing an opportunity for alternative legal service providers.

Challenging the role of lawyers: Lawyers need to adapt by focusing on tasks that require judgment, intellect, and creativity in order to maintain their role in an increasingly automated legal industry.

Redefining "Practicing Law"

Based on the Lola ruling, "practicing law" can be redefined as activities that require independent legal judgment, creativity, and human intellect, which cannot be completely replaced by machines. These tasks include:

Legal advice: Provides opinions or advice based on complex legal analysis, considering the context and interests of the client.

Drafting legal documents: Preparing petitions, contracts, or court documents requires adjustment, reasoning, and logical judgment.

Legal representation: Engaging in litigation or negotiations, requiring the ability to anticipate the reaction of opponents, judges, or regulators.

Monitoring and accountability: Evaluate and challenge results from AI systems to ensure accuracy and fairness.

In contrast, mechanical tasks such as keyword searches, document classification, or formatting error checks are no longer considered "practicing law," especially when they can be automated. This definition emphasizes the role of humans in providing unique value, while acknowledging that technology can replace simple, repetitive tasks.

3. Practice of law practice and application of technology in law practice in Vietnam

3.1 Applicable regulations

In Vietnam, the practice of law is mainly regulated by the Law on Lawyers 2006 (amended and supplemented in 2012) and its guiding documents. According to Article 2 of the Law on Lawyers, "practicing law" includes:

• Participating in legal proceedings (representation and defense in criminal, civil and administrative cases).
• Legal advice.
• Extra-litigation representation (negotiation, drafting of contracts).
• Perform other legal services at the request of clients.

The law requires lawyers to be licensed to practice and join a bar association, guaranteeing the same professional exclusivity as in the United States. Tasks such as drafting simple contracts, looking up legal documents, or assisting with administrative procedures are often considered "legal services," but must still be performed by a lawyer or law practice organization[3]. Currently, Vietnam does not have clear regulations on distinguishing between mechanical tasks in the legal profession and tasks that require judgment and legal thinking, as well as the role of technology in the practice of law.

3.2 Current status of technology application

The legal profession in Vietnam is beginning to access technology, but it is still in its infancy. A number of large law firms in Hanoi and Ho Chi Minh City. Ho Chi Minh City has used case management software, legal document lookup, and basic AI tools such as simple legal advice chatbots, information search and support tools such as ChatGPT, Gemini, Deepseek,.... However, tasks such as contract review, legal research, or document analysis are still mostly done manually by lawyers or paralegals.

Compared to the United States, Vietnam does not have advanced AI tools such as ROSS Intelligence or COIN, nor does it have a large-scale alternative legal service provider. This partly stems from strict regulations on the practice of law and a lack of investment in legal technology. However, the need for automation is increasing, especially in areas such as commercial contracts, intellectual property, and international litigation, where large volumes of documents require rapid processing. Technology will be used by more and more law firms in Vietnam to replace jobs that do not add value, administrative, and repetitive on a daily basis.

4. Lessons from Lola v. Skadden for  Vietnam

4.1 Mechanical duty and legal judgment should be distinguished

The Lola ruling  suggests that Vietnam should amend its regulations to make a clear distinction between mechanical tasks (which can be automated) and tasks that require legal judgment. For example, tasks such as looking up legal documents, checking contract formats, or classifying documents can be assigned to AI or non-lawyer staff, reducing costs for clients and increasing efficiency for law firms. Meanwhile, tasks such as strategic consulting, drafting complex contracts, or litigation should be reserved for lawyers to ensure quality and accountability.

4.2 Loosening of occupational monopolies

In Vietnam, current regulations do not allow non-lawyers to practice law, similar to ABA Rule 5.4 in the United States.[4] However, Lola shows that mechanical tasks do not need to be protected by occupational monopoly. Vietnam may consider allowing legal technology companies or legal support staff to perform these tasks, as long as they are supervised by lawyers. This will encourage investment in legal tech, create opportunities for tech startups and reduce the price of legal services for citizens.

4.3 Training lawyers for the age of technology

The Lola ruling  emphasizes that lawyers need to be innovators, monitor AI, and provide human judgment. In Vietnam, law schools such as Hanoi University of Law, Ho Chi Minh City University of Law. Ho Chi Minh City, or the Judicial Academy needs to integrate courses on legal technology, data analysis, and AI ethics into the training program. In addition, the Vietnam Bar Federation should organize continuous training programs on the application of AI in law to help lawyers adapt and apply in their work.

4.4 Setting the standard for forensic AI

Currently, in the world, specifically in the United States, it shows that AI can produce false results if left unsupervised. Therefore, Vietnam needs to develop certification standards for legal AI systems, ensuring accuracy, transparency, and fairness. At the same time, legal advice AI tools must be tested to avoid providing false or biased information, especially in sensitive areas such as criminal or civil. In addition, the promulgation of an ethical code for the use of AI in the legal industry is necessary in the current context to ensure the interests of clients in the legal field.

The Lola v. Skadden case  redefined the "practice of law" in the context of automation, AI technology that is "invading" the legal market and emphasized that only tasks that require legal judgment truly belong to lawyers. This ruling not only challenges the monopoly of the profession in the United States, but also provides a valuable lesson for Vietnam, where the legal industry is facing opportunities and challenges from technology.

Lawyer Nguyen Van Phuc

HM&P Law Firm