Is It Okay To Talk About Women In Law Now?

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Is It Okay To Talk About Women In Law Now

10/31/2017

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

Joe Patrice: Yes. Hey, welcome, it’s another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law; with me as always is Elie Mystal, although he is not with me, he is over the miracle of the Internet.

Elie Mystal: Where the hell did those people come from?

Joe Patrice: What? Oh, no, that, I mean —

Elie Mystal: The clapping people.

Joe Patrice: Well, because they knew that it was the beginning of the show, you know, so they were excited.

[Applause]

Joe Patrice: Yeah, thank you, thank you.

Elie Mystal: So you are doing this in front of a live canned audience, is that what I am to understand?

Joe Patrice: Yeah. I mean, you know, we — they can hear you too if you want to say anything interesting or funny or whatever.

Elie Mystal: No, because you are just hitting a button. Those aren’t real people, you are just hitting a button. I feel like Zoolander right now.

Joe Patrice: I don’t know what you are talking about.

Elie Mystal: Hey guys, guess what, I got a promotion.

Joe Patrice: You did? You would have thought I would have heard.

Elie Mystal: I am the new Executive Editor of Above the Law. Oh my God, those sounds are going to be so annoying.

Joe Patrice: So what’s the job title again?

Elie Mystal: Yeah, Executive Editor of Above the Law and we really need to get past this part quickly, because I have my whole thing that I want to grind on.

Joe Patrice: Go for it.

Elie Mystal: The more you hit those buttons, the more you are inspiring me to switch my whole open right now to complain about you, so let’s avoid that and let’s talk about me.

All right, so what I am pissed off about today is I got this promotion, which is awesome, but because I have two children, that means that I now have a childcare deficit. See, in my old job where it wasn’t really a real job, it was totally okay for me to have two kids while I worked; I have a five year old and a two year old, for those of you who don’t know, and that’s fine, because I didn’t really have a real job, my wife has a real job, I didn’t have a real job, it all worked out, we had enough childcare.

But now that I have a more real job we have a deficit in childcare and it’s very frustrating and it’s very annoying and it makes me think about how just poorly our society is set up to accept or acknowledge or help at all a two working parent family, right? Our society is still fundamentally based around the concept that one parent is going to be at home all the time fucking fishing Cheerios out of your kids’ shirt while the other parent goes off and makes all the money. And this like radical concept that’s been with us since, I don’t know, 1920 where both parents work is still not something that our society, that our professional society has progressed to the point where it understands, and I don’t know why that is.

Joe Patrice: Okay. Yeah, so that was a —

Elie Mystal: You don’t find that to be — I mean, I know you don’t have children, but like you don’t find that to be a fundamental problem?

Joe Patrice: Well, sure.

Elie Mystal: Like it should be possible for me to both have a real job and my wife have a real job and for us to be able to take care of our children, right, like should be, maybe not easy, but certainly easier, right?

Joe Patrice: Right. This is not particularly radical conversation topic, right? There have been moves for increased family medical leave in this country as well as in other countries where they actually have this sort of thing for years, so this isn’t really trudging any new ground. It is–

Elie Mystal: But I am a man having this conversation, which makes it more radical.

Joe Patrice: Oh, oh, oh, oh, I forgot that when a man has the conversation, it’s all of a sudden important.

Elie Mystal: It’s all of a sudden the problem, right? I mean isn’t that what I have been promised and told.

Joe Patrice: It may well have been; however — yeah, we will — yeah, let’s just blow right by that rather than dwell, because it leads into the topic of the day, I think, which is you have got a promotion–

Elie Mystal: You think, wait, you think, you think that’s how it leads in?

Joe Patrice: I mean —

Elie Mystal: Press your button to give me a goddamn applause.

(00:05:00)

Joe Patrice: They didn’t like that as much. So listen, what I think has happened though is — the reason I say I think is, as you well know, we have vague senses of our scripts, but we are loose, that’s why we are entertaining and fun. So at the end of the day I don’t know where this conversation is all going to go, but we know where it’s going to start, which is we are going to bring in Kathryn Rubino, who works with us at Above the Law, but she also has kind of a new role in this redefining thing; while you have talked about yours, she has a new role, it relates to this discussion that you were just having, so it seems like a perfect time.

Well, hold on, let’s actually — you know what, it strikes me, I probably need to take a break right now.

Elie Mystal: No more goddamn buttons.

Joe Patrice: Yeah, no, I forgot. No, no, no, no buttons, I just needed to take a break, so that we can do the —

Elie Mystal: Oh, to make money.

Joe Patrice: Right, yeah.

Elie Mystal: I am sorry. I will shut up now.

Joe Patrice: Cool. Do that.

[Music]

Bob Ambrogi: Hi. This is Bob Ambrogi. I have been writing, podcasting and speaking about legal technology for over two decades. Monica Bay and I co-host a show called Law Technology Now, where we interview experts behind the newest legal tech. Tune in on iTunes, Stitcher or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com to learn why technology is improving the legal industry for lawyers, their clients and everyone, as it brings us closer to access to justice for all.

[Music]

Joe Patrice: And we are back. Kathryn is here. Hey.

Kathryn Rubino: Hey. How are you?

Elie Mystal: Hi Kathryn.

Kathryn Rubino: Hey, how are you doing?

Joe Patrice: We are good. So Elie told us all about the work that he is doing, and while we all as a functional matter still do the same thing we always did at Above the Law, but one of the new tasks that have been added that you the readers don’t necessarily see, Elie has talked about some of the tasks that he has that you don’t necessarily see from the outside. You also have some tasks that actually people might be able to notice.

Kathryn Rubino: Yeah. Well, here at Above the Law we have launched kind of a subgroup of ATL called The Jabot. For those of you who aren’t legal geeks, jabots are the decorative necklaces that Supreme Court justices often wear with their robes, most famously by Ruth Bader Ginsburg.

Elie Mystal: It’s a doily basically.

Kathryn Rubino: Not always actually. In fact, the specific jabot that our logo is built around is actually RBG’s dissent Jabot, which actually has a bunch of jewels and it’s actually no lace at all, but it is very distinctive and she tends to wear it when she gives her dissents from the bench, when she reads them out loud.

So we named ourselves after that because we wanted to create a group that was focused around issues that women, people of color, LGBTQ, trans folk, all sorts of people who are traditionally excluded from society or maybe marginalized in some way, but we are still lawyers or involved in the legal profession, so we could kind of have a place to gather and write stories that were of particular interest to us.

Joe Patrice: Where does this reside? I mean obviously it’s drawing a lot of stories from Above the Law, but there’s some more to it than that.

Kathryn Rubino: Oh yeah. Obviously we pull a lot from our ATL stuff. There’s a little subpage on ATL that you can go to, that’s just atl/thejabot. We also have a Facebook group. So if people are interested, you can check us out. It is a Closed Group, but assuming you are not here to troll us, we will approve your membership. But it is also important to build community particularly with groups that have been marginalized, so we want to make sure that we have a closed space so that it is a supportive environment where people can honestly discuss differences of opinions and strategies moving forward within a sort of safe environment.

Elie Mystal: Safe and supportive environment seems an odd place to have me a part of when you think about it.

Kathryn Rubino: Well, this is why this is one of my tasks.

Elie Mystal: Okay. So now that we have done the obligatory navel-gazing, what I really want to talk today Kathryn was a little bit more expansively about some of the issues, concerns, problems, successes that you feel happen with women in law, with women in big law in particular.

If you were a young woman about to go into that field, you have gotten your job at whatever firm, what should you prepare to have to deal with?

Kathryn Rubino: I mean I think it’s very similar for a lot of professional women or other minority groups, and I think that particularly in the last couple of weeks the whole #MeToo has become something that we have talked a lot about within The Jabot and on the ATL website as well.

I think that that’s obviously a risk for any kind of professional woman when they are trying to establish their career and even more established careers, it doesn’t mean that you can’t be victimized just because you have reached a certain status in your career, it may be less likely to happen, but it’s certainly not impossible and to say otherwise is a little bit problematic.

(00:09:56)

And so we have been really talking about the ways in which — there’s kind of this residual opinion that just because you went to law school you are a smart woman, you must be self-possessed enough to not be abused or to not be harassed or to know what to do if it does happen to you.

Elie Mystal: This is the Ivanka Trump theory of the world, right?

Kathryn Rubino: That does exemplify it, but she is certainly not the only one, and I have been pretty vocal that I don’t think that a law degree uniquely insulates you from any of these things.

We have heard stories that our readers have sent to us about all sorts of harassment and assaults that have happened within law firms. These are lawyers or other legal professionals who despite being aware of the law was not following it.

Elie Mystal: But do you think that the legal community is particularly susceptible to this or perhaps better than other professions? And what I mean by that is obviously I agree with you and I agree with where I think you are going with your previous statement that obviously just because you have this degree or just because you are around people who arguably know what the law should be doesn’t protect you, doesn’t insulate you, I totally agree with that statement.

But I am wondering and I am wondering about your impression here if we think that the law is a better industry to go into as opposed to say Hollywood, as that’s been in the news, or a banking kind of community, a finance kind of community or other types of professions out there, is law kind of better, worse, probably the same, like what do you think about that?

Kathryn Rubino: I mean I think the important thing is that we continue to hear stories from every single industry. This is not something that is industry specific. I don’t think that there’s — well, there’s not a particularly good amount of statistics about this comparing one industry to another, but I would certainly say that legal industry is not isolated, but one thing that we are seeing is that anytime where there are long hours, where as a result of that you may have a more familiar relationship with your coworkers, these sorts of environments are right for abuse.

When the only way to get staffed on a case is if you are in a kind of a firm or company where, oh, well, you are hanging out with the boys late at night or the managers who are all men who all like to gather at the same Irish pub down the block and there are situations which develop which are more familiar where lines can get blurred and those are the kinds of situations I think that are most right for abuse.

Joe Patrice: We talked — you and I talked about this the other day while you were working on a story that there’s obviously a lot of similarity to these stories, hence the virality of this hashtag, but there’s also some level to which I think some ways that the legal profession believes that it’s insulated, as it doesn’t understand that not — even though there’s a lot of similarities, things can be different, that you don’t need an executive who has power over life and death to have these sorts of abuses.

The structure of a law firm isn’t necessarily as hierarchical. There’s lots of diffuse layers of power with partners running their little fiefdoms or whatever, but that doesn’t change the fact that people can be abused; it just changes the ways in which it can happen.

Kathryn Rubino: Absolutely. It may be true that there are 100 partners at your law firm so “you can always find work with another partner”, but the reality is these partners often will run their groups or their departments as little fiefdoms. They may inadvertently punish people who have rejected their advances, even if they are just trying to avoid an uncomfortable situation after a woman has turned down their advances, they start staffing men on their projects instead. And as a result their hours, all of a sudden this woman’s hours have taken a hit and they don’t get the bonus that they would have otherwise received if the person in power, the person who is still getting their million dollar partnership disbursement at the end of the year, if they had not come on to you and created this uncomfortable, harassing and potentially abusive situation, this woman would have potentially still gotten her bonus. And so these are the kinds of situations we do see a lot of time.

And the reality is that diverse systems of power like law firms often mean there’s no accountability. It’s hard to say to a partner you may have some sort of a mentorship relationship with, but are in a totally different practice group, hey, this corporate partner is really kind of making me uncomfortable. If it’s a litigation partner you are talking to, they can’t give you more work, they can’t really step on the toes of another partner, particularly if they are working on litigation for that corporate client that the corporate partner brought it in the first instance.

(00:14:51)

Joe Patrice: And it depends on how the firms are organized, and that’s one thing too, I know. We have listeners who know all this because they have been in firms, but we also have listeners who are in law school or maybe contemplating law school. Different law firms have different structures and while the kind of the traditional structure is one where there are multiple partners all doing their own thing, there are others that are becoming very much Fortune 500 companies, with chief executives who have the ability to have issues elevated to them, but it really does depend.

And it’s something that if you are looking into where you want to work, you should seriously consider the structure of the firm you want to work at, because it’s one of those things you never really think of on your own, but that can change your whole experience.

Kathryn Rubino: And you don’t always know how those — even if you are aware of how a firm is organized, you may not be aware of how that plays out in your life, in your day-to-day. I think the most important thing man, woman or anyone going into a law firm, the biggest thing that affects your day-to-day happiness is the manager you are directly working for. You may not know who that is and you should be aware going in whether or not it’s easy to switch groups that you are working for or cases that you are on so that if you are put in an uncomfortable situation, you have a way out.

Elie Mystal: Speaking of ways out, are there best practices for getting out?

Kathryn Rubino: A big wall or —

Elie Mystal: Exactly, besides leaving the profession entirely. Like when you find yourself with a let’s say lecherous manager, perhaps his behavior has not risen to the level where you have an actionable lawsuit yet; perhaps it has and you don’t want to spend the next five years of your life fighting that lawsuit, what should you do?

Kathryn Rubino: I am a little bit hesitant to say that there are best practices, because once you put out there that this is what one should do, anyone who doesn’t follow the play-by-play is put under suspicion.

Elie Mystal: Right, right. No, that’s a good point. What could you do is more —

Kathryn Rubino: So I don’t want to say that, but things that you should look for are other allies within the firm that you can talk to, other people on the same set of cases, people who used to work at the law firm and any kind of mentor kind of situation I think is always going to be beneficial for all sorts of diverse populations in law firms.

But the number one priority I think always is get yourself out as safely as possible. If you are in a bad situation, do the best you can in that moment. You don’t know exactly what it will be like and hopefully I think the results of a lot of this #MeToo stuff is that people will listen and hear and you will feel comfortable talking about it; but if you don’t, that’s okay too, still support you.

Elie Mystal: One thing I know and the minority experience at these firms is a little bit different than the woman experience at these firms, and in part because of what I am about to say. One of the things that I know that lots of minorities do for each other is that you warn who is coming next. You have a bad experience with a particular partner, perhaps even a particular whole firm, and it’s not the kind of thing where, again, like I said, just not necessarily rising to the level of a lawsuit, even if you wanted to fight one, but as you kind of — as the next kind of crop of young associates come in, you kind of pull them inside and say like, hey, you don’t want to work with Bob. I am just telling you, you don’t want to work with Bob.

Is that something that that happens in the minority communities in part because they are smaller, these firms?

Kathryn Rubino: One of the things we have heard a lot in these stories is that there’s this whisper network, where women are warning other women to the extent that they can.

Personally, I know that I have been warned against working late nights for certain partners or senior associates at a firm and that if I did make sure I document it and make sure somebody else besides that person is in the building. And this was quite a few years ago now, but somebody — the previous person who I had worked for in this specific job I had had left a note on the desk, in the computer for the next person who is taking over and that was part of it.

Elie Mystal: Wow.

Kathryn Rubino: And so then when I left the job I did the same thing for the person, another woman who was taking over the job from me.

I had one opportunity to work for that person, but I was very clear, oh, I am going home at 7. I can’t stay today because I didn’t want to put myself in that situation. I had been warned and I took it. I took that advice.

But for sure, there was a note like saved and it was a Word document locally before they kind of wiped it or it might have been long enough ago and the firm might not have been technologically savvy enough to know to wipe it. And it was, To Whom It May Concern, and it was detailing all the things that had happened. They had sent a copy as well to HR on their way out the door saying that if other people had complaints against this attorney that they would be willing to testify, even though they didn’t want to pursue anything themselves because they were leaving the firm. And I was given this and that was very powerful to me. It was my first big job, yeah.

(00:19:59)

Elie Mystal: What are some — that’s — I don’t know how to respond to that other than eek. What are some, and again, I am going to use the term best practices with your caveat that just if you are not following those best practices doesn’t mean that you are a horrible person, what should we expect from male allies in these situations? What can men do who, maybe they are not themselves the harasser, but they know about it, same kind of whisper network that you are talking about, they know about it, they see it, they are aware of it, what should male allies do in that situation?

Kathryn Rubino: Say something I think would be the first. Usually when you are talking about serial abusers, there’s not — you are rarely in a situation where it’s the first time this is happening. This is somebody who has put somebody repeatedly in uncomfortable situations.

You know, you are eating pizza with your whole team late night and somebody keeps on making comments about so-and-so’s outfit or cleavage or boyfriend or deliberately making them uncomfortable and instead of just laughing it off and saying, oh, well, that’s just Bob, I guess that’s what Bob is just like, I think that’s saying something or trying to direct the conversation in more comfortable places for everyone.

I think it’s important for people who want to be allies of any variety that they recognize that if they see it it’s their problem and they can’t close their eyes to it. It’s there, you know it, and if you care, it’s your responsibility to say something. No one else is going to do it, but you, no one. There is no one else coming, it’s only us.

Joe Patrice: Yeah, I —

Elie Mystal: What — go ahead.

Joe Patrice: No, no, I just was going to say I feel bad for every lawyer named Bob. We have really repeatedly gone after this poor fictional Bob. There are bad Bobs that we are talking about, but there are good ones too as far as we know.

Kathryn Rubino: There are definitely good Bobs.

Elie Mystal: Dude, Bob is a dick. All right, so moving on from harassment issues, what other kind of suite of issues should women about to enter this profession, young women in this profession, what else are we talking about here, because it’s not just you have to worry about the creeper in the corner office, right?

Kathryn Rubino: Sure. Well, to kind of get back to your earlier rant, certainly family leave is something I think that is — that all prospective lawyers should care a lot about. Not only what programs does the firm they are potentially looking at, working at, what programs they offer, I think that’s obviously first and that’s important, but also at what rate are those programs utilized. It’s one thing if you can take up to four months off to be with your newborn child, if no one takes it, or the people who do take it leave shortly after they do, because they feel like they are being pushed out of the firm.

We did an interview with a big law associate who had recently returned from maternity leave and she talked about being almost hazed when she returned, the partners that she worked for or the senior associates were trying to see whether or not she still had the stuff to put in the late-night hours that she did before she had her child.

So with an infant at home she was being asked to spend nights in the office doing work that was much more appropriately given to more junior associates than herself, but she was given the work just to see if she would still tough it out, to see whether or not she had the stuff to continue on the partnership track, and that’s awful.

Elie Mystal: That happens a lot though. I mean, I have got some stories of that nature as well and that’s not just like jerk off mail managers doing that, sometimes that’s female managers doing the exact same thing.

Kathryn Rubino: Sure. I think the patriarchy certainly affects every member of society, which includes women. We internalize a lot of these issues as well and trying to prove ourselves and to prove that we are the cool person at the table and whatnot, but I think that asking that follow-up question about the ways in which these programs, which I think that a lot of big law firms are trying to make headway to offer more opportunities, offer more programs, which is great, and I don’t want to say that that’s a bad thing, but we should also be asking that next level of who is taking it, what’s the experience like.

If you have gotten an offer from a firm asking perhaps if you could speak to someone who is a parent at the firm to see what their experience is like. Whether or not you have kids, but you expect them — you want them in your life and in your future, just to see what it’s like for people who are going through it at the firm, and once you have already had that offer in hand you are free to ask a lot more honest questions as well.

Elie Mystal: Sure, but I think we both know that like that’s not a question that a lot of people, men or women, are focused on when they are 25, 26, coming out of law school and looking to make money, lots of people are coming to these firms–

(00:25:00)

Kathryn Rubino: Well, that’s why I am talking about it right now. That’s why I think that that’s something people should care about. That’s why it’s not just a question for people who are currently mothers who are looking at law firms, but people who think that, not just children, a lot of people are put in positions of responsibility for their aging parents, for other family members that may have tragic illnesses or accidents or aging, there’s lots of reasons why our families are something that take a lot of our time.

Parental leave is one easy way to kind of see how a firm reacts when you have a personal life and you are forced to do something for your personal life. And you shouldn’t have to sacrifice your personal life. It makes you a better lawyer, it makes you less likely to get burned out if you are able to take the time to go to your sister’s wedding or to take some time off if you are adopting a child and figuring out what those programs are that your firm has and also how likely it is that people are using them is a good and an important thing.

Joe Patrice: That utilization is a big point too, because as another sad factor of this industry is — and lots of industries in late stage capitalism here is that these benefits may exist, but they don’t really exist.

Kathryn Rubino: Absolutely. And I think that — and it’s easy to say, especially during OCI or something, they are like, oh yes, this is our program, it’s amazing, this parental leave. And that’s something the recruitment departments are happy to talk to you about and tout and plaster you with, but asking that often, once you have already gotten the offer, asking that next level question of how many people use it, what percentage, and those kinds of questions I think are where you get the more honest expectation of what your life at that law firm will look like.

Elie Mystal: Sorry, I am still kind of hung up on the fact that I unwisely apparently left my ability to do document review before I could use it to get out of my sister’s wedding. That would have been awesome, upon reflection.

Kathryn, take us out of here with a positive, is anything good happening for women who are working in big law, anything, I will take anything at this point?

Joe Patrice: I mean partnership numbers are up, not much, still proof that there’s a serious problem. Women advocates in front of the Supreme Court are winning at a higher rate than men.

Kathryn Rubino: There are many — fewer of them of course.

Joe Patrice: Of course.

Kathryn Rubino: I think that Empirical SCOTUS just did a report that said that of oral arguments in front of the Supreme Court, women are clocking in just under 18% of the time, but they do tend to be more successful than their male counterparts.

Elie Mystal: You can still tell you guys went to CCN. I have got my positive woman thing. Women make up the majority of the Harvard Law Review Editorial Board for the first time in history. Yay.

Kathryn Rubino: Yay.

Joe Patrice: Yeah. Well, yeah, it’s not Yale though, is it?

Elie Mystal: Baby steps man, baby steps.

Oh my God, what the fuck was that? Let’s leave before I have to kill Joe.

Joe Patrice: Thanks Kathryn for talking about this. And if you are listening and want to join the Facebook group, it’s The Jabot. It’s closed, but you can apply and I am sure our trusted operator standing by will approve that application, if you are not a troll.

If you want to read any of the stuff that any of the three of us are writing, we are at Above the Law, as always. You can also follow us on Twitter. He is @ElieNYC. I am @JosephPatrice. She is @Kathryn1. I guess there’s a million ways to spell Kathryn so it’s worth pointing out.

Also, you should be subscribed to this podcast if you aren’t, do that now. We will wait.

Now that you have subscribed to this podcast, you should give it a review and talk about how awesome it is and spread the word. The more you review it on your podcast delivery device of choice, the better it is to be found by other people.

The LTN App also will give you access to all the other LTN podcasts that are out there. And that I think is everything I need to say.

So with that, we are out of here. We will talk to you in a couple of weeks.

Elie Mystal: See you next time.

Joe Patrice: Bye.

[Music]

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[Music]

Elie Mystal: Halfway through that episode guys my dog started furiously humping my leg, which she almost never does, like 13 goddamn years old, she has done that like maybe like five times in her life, just furiously start upping my leg.

Joe Patrice: Awesome.