Biglaw’s Parental Leave Backslide

Episode Notes

Transcript

Joe Patrice:

Welcome to Thinking Like A Lawyer. I’m Joe Patrice.

Kathryn Rubino:

You tried so hard for that one. You even pantomime like something was wrong and I didn’t fall for it because I’m onto you. Patrice.

Joe Patrice:

This is another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino and Chris Williams. We are here to talk about the big legal stories of the week. That was, but as we always do, we begin with a little bit of small talk.

Kathryn Rubino:

Small Talk

Joe Patrice:

I watched the Oscars last night.

Kathryn Rubino:

Hey, look that, did you think, look at you did something that wasn’t law related.

Chris Williams:

Yeah. I’m proud of you.

Joe Patrice:

It reminded me. So let’s talk about the accounting houses and the obligations they have to maintain the secrecy of Oh, nobody wants to have that conversation.

Kathryn Rubino:

No, no. No one wants to have that conversation.

Joe Patrice:

We did have that conversation on a past episode of this show. I don’t know if anyone remembers the gas. No one does. Yeah. Anyway, everyone does because it was, everyone remembers when they mistakenly announced the wrong best picture. A few years ago we had a guest on to talk about the obligations that the big four folks who do that job go under. Very interesting episode from the olden days. I can’t even remember when that would’ve been several years ago for sure.

Chris Williams:

I just wanted to know your response was everyone remembers and you don’t even remember when it happened. That’s just

Joe Patrice:

When it happened. Yeah. No, I mean, I don’t remember exactly what year the Land Moonlight situation was, but obviously those were the movies involved. Gotcha, gotcha. Would’ve been pre pandemic. I know that because it was a time when people actually went to movies. That was what I watched.

Chris Williams:

But yeah. How were the Oscars

Joe Patrice:

Good, the usual Pageantry nonsense. Oppenheimer rolled right on through everything to the point where they didn’t even attempt to have suspense for Best Picture. Normally they announce the movies that have been nominated and all that, but Al Pacino just kind of came out and opened an envelope and said, yeah, it’s Oppenheimer kind of ended the suspense.

Chris Williams:

I saw a tweet and it was like, oh, whoever was at the Oscar just makes the most woke film. So apparently Oppenheimer is woke now.

Joe Patrice:

Yeah. Well, I mean, the movie is kind of an indictment of nuclear weapons and so on, so yes, but

Kathryn Rubino:

I went to my mother’s St. Patrick’s Day party over the weekend. Oh, there you go. Annual tradition in the Rubino family, which isn’t actually a contradiction. My mother is Irish by heritage, Italian name by marriage. Good time was had by all lots of beer. None of it green. There you go.

Chris Williams:

That always weirds me out. I’m like, there’s no need to turn the local lake green for this.

Kathryn Rubino:

It seems aggressive.

Joe Patrice:

Yeah. I mean, I think we’re talking about the river, but yes,

Kathryn Rubino:

It still seems aggressive. Yeah, you don’t need to dye it. Okay.

Chris Williams:

Speaking of weird water, I’m going head to Greece in a couple weeks now. It’s so close because one of the things you pay attention to is the water there because it’s just beautiful apparently. So I’m not excited to not green wine colored apparently. I think there’s a point in the Iliad where words referred to as being wine colored, so I’m looking forward to seeing that. Hopefully not because of the blood of some of the enemy’s it. I’m looking forward to it. I think of the philosophical aspect of just seeing stuff because a nerd at heart, and that’s my flavor of nerd them, but for literary reasons, it’s also cool to be able to go to Greece and just see what the scenery was like.

Joe Patrice:

Well, cool. All right, then that concludes our small talk for the day.

Kathryn Rubino:

There you go.

Joe Patrice:

Do you have something to say?

Kathryn Rubino:

I didn’t. Do you want to just jump right into our first story?

Joe Patrice:

That is what happens when

Kathryn Rubino:

Small talk gets Well, you should give a little intro before you hand it over to me, but I can do that. One of our stories last week was big law related and DLA Piper very much bucking a trend in questionable ways. They reduced the amount of parental leave that attorneys non-partner attorneys get at the firm. They went from 18 weeks, which is, I don’t think that big law or any industry has really settled on an average, but is certainly pretty common to get 18 weeks of leave for parental leave. And they have cut that back to 12 in their email to associates. They made sure to note that birthing parents could have an additional six weeks of short-term disability, but that was always true. Right. The short-term disability hasn’t changed. They’ve just reduced the amount of leave available, and certainly this quite explicitly puts the screws to adoptive parents, foster parents, non birthing parents of every variety, which I’ve written stories about parental leave in big law for the last four or five years, pretty consistently, and every time I’ve written it before last week has been increasing it, increasing the number of weeks, the number of people who are eligible for it, whether it be primary parents or non-primary parents, or expanding it to include other sorts of family leave, not just new child sorts of things.

And so every other story for the last five years have been growing these sorts of things, making it more attractive to be a parent and a big law associate, which has dovetailed, I think pretty nicely with the whole, we need to care a lot about work life balance and making sure that attorneys aren’t getting burnt out working in big law, and this is very much the exact opposite, which is I’ve talked to everybody internally at a TL and a TL has been tracking what firms is. Parental leave has been since at least 2008, and no one, no one can remember a firm slashing Going backwards. Going backwards.

Joe Patrice:

Yeah. It is weird because this is one of those perks that’s just so easy. It’s so easy to get the little gold star as the good guys by offering family leave. It’s also something that people don’t take all the time, so it’s not like you’re opening the door to suffering.

Kathryn Rubino:

It’s not every associate every year.

Joe Patrice:

Yeah. You’re not suffering huge productivity hits all the time like you would if you expand your vacation time or anything like that. It’s a wildly unforced error it would seem. Now, I did hear some musing that this is the sort of thing that sometimes this person suggested maybe that what’s going on is this is a even way to

Kathryn Rubino:

Force people out the door

Joe Patrice:

An even more stealthy than stealth layoff situation. A sort of situation where they know they need to trim ranks a little bit, and maybe this is the sort of thing that gets some people to voluntarily leave without them having to start firing people. I don’t know. I don’t know’s a wild take.

Kathryn Rubino:

Yeah. I also think that this is probably worse than just doing, whether it be stealth or admitted layoffs, because I think that there are firms that are doing that right now. I think when they’re limited, I don’t think that this is necessarily changing the reputation of firms that are making those cuts, but this will always stay with the firm. I think whether it’s good times or bad, I think that changing your parental leave, it shows your hand, this is what you think. You don’t value families, you don’t value anything, but the amount of hours I can bill for you, and this shows it. This lays the truth on the table and I think in a really harsh way, I can’t imagine that actual people thought this was a good idea. The amount of people who must’ve been involved in signing off on this and they went through with it, they still went through with it, which to me, I don’t know. There’s not a lot. I think that when you’re joining the industry and there’s a lot of big law firms, you got lots of offers, you have lots of interviews. It’s hard to make distinctions between firms when you don’t really know a lot about them. This is a real easy way, even if you’re, and this is the sort of thing that you don’t have to be currently expecting a child or have short-term plans to expand your family in any way for this to sting. I think this leaves a mark on the firm.

Joe Patrice:

Yeah, I mean, it’s definitely a move that is, it puts it out of step with everyone else, and that’s the other thing. We have firms that do not too great things that hurt their reputation, but they usually have some cover as in there’s someone else who’s doing the same,

Kathryn Rubino:

Which I think is the distinction between what you’re saying. Is this a cover for sort of layoffs? There’s enough firms doing layoffs that it wouldn’t be just DLA that’s doing this. This problem is just DLA. It’s a them story. It’s not an industry-wide story. Layoffs are an industry-wide story. There’s a big difference between that, and I don’t think you get to shake

Joe Patrice:

This, and the way in which this is just something that no one’s done in at least our memory

Kathryn Rubino:

Since at least 2008, I am pretty confident makes what happened before then. Who’s to say, was there even an intranet? But certainly since 2008, I can say with a fair amount of certainty that no am law top 200 law firm has done this.

Joe Patrice:

Yeah, really unfortunate. Move on their part and yeah, I think it’ll impact them going forward. McDermott will and Emory is vault’s number one law firm for associate satisfaction three years running. Why? Because they’re doing big law better At McDermott, you define what your success looks like, they help you achieve it. McDermott’s award-winning professional development program and hands-on mentorship propel you toward your goals while the industry leading wellness benefits help you feel your best. So you can do your best. Want to see how your life could be better at McDermott, head to mw.com/ Above, the Law. Okay. What else is going on? Are you familiar with metadata?

Kathryn Rubino:

I am.

Joe Patrice:

You know who isn’t

Kathryn Rubino:

The Supreme Court?

Joe Patrice:

Apparently the Supreme Court. So when you have documents, obviously if you’ve practiced law for any period of time, you’re aware that you need to scrub that sort of data before you turn things over to the world. You make sure to save it as a PDF that can’t be edited. All those little moves that you’re supposed to do, the Supreme Court apparently

Kathryn Rubino:

Or not do if you’re doing discovery, not supposed to eliminate in a data in those instances,

Joe Patrice:

But apparently the Supreme Court did not get this memo in its decision on the Colorado ballot case involving Trump. We got a quote, unanimous opinion of course, in that nine justices all agreed that Colorado can’t unilaterally kick Trump off the ballot. What that hid was the fact that it seemed as though there were a five four break in, whether not they thought that the reasoning was correct with Justice Barrett writing something kind of on the side saying, I don’t know as though I agree, but can’t we all just get along, which, whatever. And then the three liberal justices writing a opinion that was a concurrence, but seemed a little pointed in its criticism of the way in which the majority went very deep. The majority does not just say, Hey, patchwork election laws are a problem, and therefore there’s no way that the framers of the insurrection clause assume this to apply, be applicable by states to presidents. Instead, the majority went into a long unneeded, a completely unnecessary side trip about what conditions somebody could get somebody kicked off for and how many votes it would take to do X, Y, Z. All things that the concurrence said were above and beyond the question at hand, which was biting criticism, and it was criticism that it seems based on the metadata was originally supposed to be a dissent, and then the dissenting concurring in part and dissenting in part got edited at some point into just concurring.

Kathryn Rubino:

And how did you even figure that out?

Joe Patrice:

Because it’s in the metadata,

Kathryn Rubino:

Right? Well, didn’t Mark Joseph Stern go through it? And if you highlight it, it actually comes up as you can see what was previously there and literally the part that says concurring used to say concurring in part. Dissenting in part.

Joe Patrice:

Correct. So Mark Joseph Stern identified this in another computer person who one of his followers on social media replied by digging even deeper and found it all within the PDF data if you went into it. But yeah, no, it’s obviously it’s embarrassment that the court who makes decisions about how technology functions in our lives every day can’t handle basic word processing, not great, but also there was a lot of back and forth afterwards about whether or not the liberal justices were bad people for concurring and for agreeing to concur as opposed to dissent with a lot of the more liberal critics, calling them cowardly for not standing up to this whatever. I don’t know. What do other people feel about that? I don’t know.

Kathryn Rubino:

Yeah, I mean, I think that it was pretty clear that what they were going to do in terms of trying to create some sort of distinction between their reasoning and sort of the majority, and I think that in the oral arguments, it seemed that they were going to latch on to this sort of patchwork justification. The thing that really struck me is that we hammer the Supreme Court justices that are older and refusing to retire all the time, and I think that that is very, very fair and very, very valid. But currently, you have four justices on the Supreme Court in their fifties. These people should know. These are not people who were halfway good point through their career when computers and technology became a thing. These are people who were in the start or in the prime of their career when these things became very obvious, and it is shocking to me that someone in their early fifties doesn’t know better.

Joe Patrice:

Yeah, no, it’s bad now. I’m much more of a person. I actually think that the dissent is the consent or no disappearance, whatever we’re calling it

Kathryn Rubino:

Disturbance. I

Joe Patrice:

Like that. I feel like, yeah, I mean, it could also be a consent, but that’s another word that some justices that’s don’t know. Oh. So anyway, so yeah, I think that that actually got it right. Unlike some of the critics, you think that they should have allowed Colorado to make its unilateral decision. I don’t think that that actually is for the best. I think that the problem in this country with elections by and large is that we allow states far too much power to control federal elections with patchwork and different laws usually implemented for the purposes of suppressing the vote in one way or the other. So I think that the liberal justices were correct. That’s bad. I think why Until they opens

Kathryn Rubino:

The door

Joe Patrice:

Think. I think why I think there’s a good faith argument that the reason they wanted to recast it as a concurrence rather than a dissent is that they felt they were laying the groundwork with their opinion, one that didn’t run a field of the patchwork problem, that they were laying the groundwork for future cases that could cite this concurrence as reasons to strike down onerous state laws. And so I don’t know. I thought that their decision seemed sound to me, and it seems like the reason for the decision was to lay some, set the stage for future

Kathryn Rubino:

Cases. I mean, I think I understand some of the agitation that other people have about it because it does seem like liberals are constantly making good faith efforts, which are then not reciprocated. So I mean, I think that there’s certainly a natural frustration that why are we doing that when we have an opportunity to get him off the ballot? Let’s do it while we can. He’s the one saying that he’ll be a dictator, although only for day one. So don’t worry too much about it. It’s still terrifying. Right.

Chris Williams:

I think it’s a sad day for jurisprudence when there was an opportunity for a dissent to be written by even just one judge, and they choose not to just because for people that are nerds about the law or want to know how thinking changes over periods of time, there have been some really strong dissents that have been, even if they weren’t controlling, they’ve been interesting and they’ve laid the groundwork for future decisions. What was that? Was that recent sst? I think it was sst, the one that overturned the nexus protections for water. Right. That decision, the way it played out felt like Te Scalia had a couple decades ago. So it’s just interesting to see how ideas went out over time and who knows? The dissent could have been something.

Kathryn Rubino:

The reasoning of the sort of left of the court is still documented in the concurrent though, right? As we said at the top, it was pretty biting for a concurrence.

Chris Williams:

True, true. But the question earlier was what are your thoughts generally on the dissent not being written? So that’s my thought. I like when there’s a robust fleshed out, we disagree, and it’s posed as such wishy-washy. Take the strong take.

Joe Patrice:

That is an interesting question, and probably one that speaks to the philosophical differences of the court these days. We do have a majority who feels comfortable grabbing lone dissents from the eighties and running with them, but for most of our history, the way in which justices would treat to dissent would be to say that that was the opinion that was wrong. Whereas a concurrence would theoretically have more, would offer you more ability to say that you were not breaking with precedent when you start implementing the ideas in that concurrence. But that might just be a difference of the way in which the two philosophies operate at this point. Okay. The state of the Union was last week, which usually is a laundry list of policy proposals that many of which aren’t necessarily legal. We every year have our Above, the Law annual Drinking Game for it, which you don’t have to drink alcohol for. You can do whatever you want for it, but the rules were designed around the idea of booze, but whatever we, and anyway, we had our drinking game. How

Chris Williams:

Do you feel about that?

Joe Patrice:

What do you mean

Chris Williams:

The TTO or backlash against the calling your drinking game?

Joe Patrice:

Yeah, so last year we had a bit of TTO or backlash against it. Look, it is an important point that the legal profession has substance abuse problems and therefore it’s something that we should not take lightly. Obviously, we have occasional columnist at Above Law. Brian Cuban talks about these issues directly, and that’s important. That said, I also don’t think that recognizing that abuse can happen is mutually exclusive with recognizing that most people are capable of engaging with alcohol without crossing over that line. And so I think that it is something of a disservice to just pretend that it doesn’t exist. So it goes a little bit of both ways. We went ahead and did it again, obviously though this time with the caveat that you don’t have to and don’t have to drink in

Chris Williams:

There. I will say with that in mind, you did go the extra route of ramping up things that could be abused with the Panera Pan Lemonade vision pan.

Joe Patrice:

I did suggest that you could do the Panera Lemonade, but I mean that’s too dangerous probably. So maybe you scale it

Chris Williams:

Back. That’s the point where I was like, yeah, this is the America Liberals want cocaine is one thing, but come on.

Joe Patrice:

So anyway, the speech did touch on legal issues fairly early. Several of the justices showed up, including some justices who aren’t even justices as Anthony Kennedy decided to crash the event. As I put it, much like George Santos, somebody who nobody wanted there decided to show up anyway, but the speech took a constitutional turn early in conversations about IVF and abortion, because obviously the post Dobbs fallout has been, despite the Supreme Court writing in Dobbs, oh, well, this will just be an issue for the states and everything will be fine. We have now had a situation where the state legislature in Alabama seems intent on defending IVF, and the Alabama Supreme Court seems convinced that the Constitution will not allow that, and that’s a clash that’s going on. That seems to be a direct result of Dobbs. Biden decided to point that out and challenged the Supreme Court in a fairly direct, and I don’t think necessarily unprecedented move, calling them out right in front of them and quoted from Dobbs that a line about how women are not without political power, which was a sneering aside, that Alito put in there to say, well, if you women actually want to have these rights, I guess you could probably uniformly vote us out by us, not the Supreme Court, obviously, because they’re a monarchy that they’re not accountable.

Yeah, they’re not accountable for anything, but vote out the Republican Party knowing that that probably isn’t something that could be done. But we’ll see. Biden quoted this line directly as something that the Supreme Court’s going to find out how true it is, which fine, this was taken very much as a direct threat toward the Supreme Court. It

Chris Williams:

Is. The kids call it a fuck you.

Joe Patrice:

Yeah, yeah. Which it kind of is telling to how disingenuous the original Dobbs opinion is. I think if when you quote it directly and positively, it is seen as a threat, right? You wrote this and we agree with it. If you say that to somebody, normally it is not taken as a dig. The fact that it is is pretty indicative of the fundamentally dishonest nature of the opinion, but

Chris Williams:

That cracks me up. There was some point, I think it was, was NPR. They just decided to tweet line by line the Constitution, and then a whole bunch of MAGA people were mad and angry, and this is Deok liberal media.

Joe Patrice:

It’s like, yes, I do remember that.

Chris Williams:

We hope these truths to be self-evident. What do you mean truths?

Joe Patrice:

Oh, was it the Declaration of Independence?

Chris Williams:

I Can’t remember. I think it was a declaration. There was a line about basically eff you the tyrants, I think, in it, and they were

Joe Patrice:

Like, it must have been four more

Chris Williams:

Years, bro. What kind of American are you that you don’t recognize what they’re quoting from?

Joe Patrice:

It must have been that because the Constitution you always forget is really dry and boring in some of those places. Early on, the number shall be divided by the the total number of population by blah, blah. Yeah. So yeah, it was probably declaration, but

Chris Williams:

Wow, the Stated Union, the part that really pissed me off was the part where Biden is like, nobody should be in jail for having weed, and then Kamala’s goofy ass stands up and gives a strong round of applause. I’m like, weren’t you the top cop that were arresting people for smoking? I’m like, what happened? What happened? I wish we were, it’s

Joe Patrice:

Become politically expedient to be the other way now. So here we are,

Chris Williams:

And that’s one of the things that frustrates me about the pervasiveness of Blue. No matter who or lesser evil rhetoric, it’s just a great way to face accountability. I wish we were at a point where we could be like, wait, is that your man’s in the bank?

Joe Patrice:

Well, what’s the line that Ellie was always, Ellie Al used to quote this all the time, and I can’t remember what it is, but it’s from some West Wing episode, and it’s vaguely paraphrasing because I don’t know it off the top of my head, but it’s something like, let’s not dwell on the fact that you’re late to this party and let’s just celebrate that you showed up at all. And so that’s how you have to deal with that kind of response to those questions. Alright, so thanks everybody for listening. You should subscribe to the show, get new episodes when they come out. You should give reviews, write something, give stars. That all helps you be following us on social media. I am at Joseph Patrice. Chris is at Writes for Rent Kathryn’s at Kathryn one, the numeral one. We’re over at Blue Sky two. It’s just I’m Joe Patrice over there. The blog is at blog. You should also just be reading Above the Law dot com every week so that you see these and other stories before they come out. You can check out other podcasts. Kathryn’s the host of the ot. I’m the guest on the Legal Tech Week Journalist Roundtable. There are several other programs from the Legal Talk Network that you should be listening to. And all of that said, we’ll check in with you again next week. Peace. Peace.

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