Biglaw Continues To Struggle With Gender Equity

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Biglaw Continues To Struggle With Gender Equity

04/16/2019

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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.

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Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. Our usual guest host Elie Mystal unfortunately can’t be with us today; he is attending the NALP Conference. And so Kathryn Rubino, who is also of Above the Law and the podcast The Jabot has decided to join us to allow me to not just talk into the air, so welcome.

Kathryn Rubino: No problem. I don’t mind just stopping you from talking to yourself.

Joe Patrice: Fair enough, yeah, no. So we are recording this today, I don’t know if you have things that you are upset about or just want to chat about life in general; Elie usually grinds his gears.

Kathryn Rubino: Yeah. I mean I am not going to pull an Elie and grind some gears here, but there is certainly lots of news out there generally.

Joe Patrice: Okay. Well, that’s actually what we are talking about on the show, so that’s really kind of useless to this part of the segment.

Yeah, so you have brought me —

Kathryn Rubino: So what are you angry about; you never get a chance to grind your gears on the show, so take it away?

Joe Patrice: Yeah, fair enough. What I am angry about is us. I am a little angry at ourselves. I feel that it’s worth noting, a lot of you out there, a few weeks ago we put out a call for people who are in the decision making process to go to law school to send us their situations and we would discuss them on our show called The Decision and with that it would help — by the way, a lot of you do this, not all, if you put the words The Decision in the email you send us, it makes it easier for us to find.

But anyway, even with that, we have got a ton of great submissions and we have been wanting to talk about them for a while now, but Elie got a horrible case of the flu, then I was out of town, and now Elie is out of town, so we are now three weeks behind on going through these. I wanted to assure everybody who sent them that you are not forgotten, we are going to get to them, we just need to get Elie and all back on the same page.

I will try to send around some quick notes to everybody that will let you know that we are still thinking of you if you don’t hear this, but we are going to get that done, sorry for the delays, that’s really what’s making me a little irritated today.

Kathryn Rubino: So in terms of law school decisions, you went to law school yourself a couple of years ago. If you can make the decision about where you decide to go to law school all over again, do you think that you would make the same call that you made?

Joe Patrice: Oh yeah, yeah, no, definitely. I was deciding between — I mean I had some other options, but ultimately it came down to a decision between NYU and Columbia and I chose NYU and that was obviously correct. I mean I don’t even know why somebody —

Kathryn Rubino: I am sorry. I think you mispronounced the word incorrect.

Joe Patrice: Yeah, I don’t know why somebody would go to that cow college up city.

Kathryn Rubino: For those of you who may not be aware of our biographies, I in fact also was choosing between NYU Law School and Columbia Law School and decided to take my talents uptown.

Joe Patrice: Yeah. Well, you know, NYU is not for everybody.

Kathryn Rubino: Well, I mean I did go there for undergraduate, so I am quite familiar with what NYU is like.

Joe Patrice: Yeah. No, I do think I would make the same decision. We will get into some of that stuff a little bit when we get into our Decision Show between Elie and I, but yeah.

So I mean you have really offered me so little — see, for those who are longtime listeners of the show, which I am assuming based on all this that Kathryn isn’t, what you are supposed to be doing here is saying things just kind of generally that allow me then to — I mean it’s almost like having not listened to the show and understood the format particularly well, that you kind of miss the whole message.

Kathryn Rubino: I have been on the show about a half dozen times and we haven’t had any issues.

Joe Patrice: No, I mean like you just hadn’t gotten the message, and that’s a problem, because if you are missing calls or spread too thin, interruptions kill your productivity, but clients demand a quick response, the US-based professional receptionist at Smith.ai help law firms screen new clients and schedule appointments by phone and website chat. Plus, Smith.ai integrates with your software, including Clio and LawPay. Plans start at just $60 per month. Get a free trial at Smith.ai.

See, that’s what I was hoping for some sort of natural.

Kathryn Rubino: Natural?

Joe Patrice: Yeah, yeah, and then you kind of forced me to do it myself and that just makes me feel like I am not giving the listeners what they want.

So let’s talk about the news. You have a story this week that I think we wanted to make the centerpiece of the show, so walk us through what’s going on at Morrison & Foerster.

(00:05:02)

Kathryn Rubino: So Morrison & Foerster, MoFo for those in the know, is a giant law firm and they have been sued, that started about a year ago in April of 2018, they were sued by three Jane Doe plaintiffs that are associates at the firm saying that the firm has a Mommy Track, that women who take leave are placed on a Mommy Track and their career suffer as a result.

In January three more plaintiffs signed on to the case, and then about a month after that a seventh plaintiff signed on to the case. It’s purported class action. It hasn’t been certified yet or anything like that, we are still kind of in the early stages of litigation.

But there are some pretty damning allegations there. Morrison & Foerster has a reputation, it always scores very well in terms of family friendliness and they get a lot of awards for their efforts for diversity. So it was a little bit shocking I think for industry observers to see that MoFo was hit with these allegations.

There has been a lot of stuff in there about how women who were taking leave were fired or asked to leave the firm or in other ways their careers were sort of delayed because they availed themselves of the leave that frankly the firm touts.

And the latest development to happen this week is that MoFo kind of hit back. They are represented in the case by Gibson Dunn and they filed a Motion for Sanctions against Sanford Heisler, that’s the plaintiffs’ law firm as well as the Jane Doe, plaintiff number four, alleging that Jane Doe four had signed a release of all claims against the firm when she was terminated by the firm and as such she was barred from bringing the case. So they had a Motion for Sanctions before the court.

Sanford Heisler’s position in the briefing as well as in some public statements they have made since the Motion for Sanctions was first made, their position is that she was informed she was being terminated while she was eight months pregnant, already had plans to take maternity leave, and while she negotiated some additional leave time and some additional benefits than what the firm initially offered, but 07:25 still should not be in force because she was, they are using the term coerced into signing it.

But that’s kind of where it stands right now and that’s kind of been the latest development. I think it’s kind of unusual to see MoFo kind of playing this kind of hardball with a pretty sympathetic plaintiff, a woman fired at eight months pregnant, it was bound to get a lot of people feeling pretty sympathetic, and I think that regardless of whether they are on the right of the legal argument or not, as a PR matter it seems a bit surprising that they would be this aggressive in the litigation.

Joe Patrice: I mean I think you hit right there at the end on the key issue, right, maybe there is a claim here, but winning cases is sometimes not about could I, but should I. This is the sort of situation where you don’t want — when you are going through this process, because the idea that this is going to get — like you have got to think backwards, is this going to go to a jury, do you want to have this kind of press out there while you are trying to impanel a jury, people will have heard potentially about this? Do you think this is going to be a settlement sort of, that’s played out in the settlement game? Well, do you want to give your opponents all this leverage and sympathy in the settlement discussions?

There is a PR element to litigation that gets glossed over a lot because many cases are not particularly headline grabbing and people don’t think about them and they can do whatever awful things they want, whenever they want to win a case, but this is the sort of case that is getting, at least within legal circles, intense media coverage. I think it will get more if it were to go further down the pipe. You don’t want to be doing things that will put you in a position of looking actively like the bad guy, so to speak.

The mere argument, hey, you released all these claims when you left, there is nothing particularly wrong with that, it’s hardball, it’s mean — it can be seen mean, but our document is here, we are going to make this argument, but attempting to turn this around and get affirmative damages out of it is really, really kicking a very sympathetic plaintiff.

(00:09:45)

Kathryn Rubino: Yeah, I mean I think it’s just a bridge too far, and I think that that’s probably something that a lot of litigation type people have issue of rating themselves in, because while we can make a culpable argument here, but that doesn’t necessarily mean you should make the argument.

The other part of the PR question in my mind is also the reputation that the firm is getting by making these sorts of claims. It is something that’s covered within the legal media. And as I said, before this case was filed MoFo had a great reputation as a very family friendly firm, had lots of great programs for women and now sort of playing this super hardball with a plaintiff who was let go from the firm at eight months pregnant makes you question whether all of those awards are just decoration in the office and whether or not they really care about their female employees.

Joe Patrice: Yeah. We have several firms that get good marks for how they deal with all kinds of diversity issues and we tend to trust those accolades at face value, there is no reason not to, but this is the sort of thing that can undermine long-term efforts at improving a firm’s reputation.

And this isn’t the only firm that’s having problems right now with gender determination issues.

Kathryn Rubino: Jones Day just recently got hit with their second gender discrimination lawsuit; the first was filed by a group of partners at the firm alleging that notoriously the firm has a black box compensation process, whereby there is no lockstep, no one is supposed to be aware of what anyone else makes or how their compensation decision was arrived at, and the allegations in the first lawsuit, which were made by partners saying that the way the partners are compensated by the black box system is discriminatory, that men are given much more credit than women at the firm. And it also alleges that there is sort of a culture, a frat house culture at Jones Day.

And this latest lawsuit is by a — purported class action by a group of associates making very, very similar claims that the black box competition system is used discriminatorily, that the comments that women get in their reviews are sexist, kind of why doesn’t she smile more kinds of — I don’t have the exact words in front of me, but kinds of stuff that really builds upon these sort of sexist notions of how women are supposed to behave and act and look like in the workplace. And so they are seeing their second kind of big lawsuit on very similar facts.

Joe Patrice: Yeah. I mean who would have thought that a firm that we actually make fun of constantly like Jones Day would have these sorts of problems. There is something to be said for, I understand the kind of capitalist mindset of, well, we should be able to — all be able to get paid what we are worth to the firms as opposed to the kind of communistic model of some of the more traditional firms that have lockstep pay, everyone at their level, not only at the associate level, but then some firms do that still at the partnership level, because they believe it’s valuable not to enter an eat what you kill world to keep the collegiality going firm-wide, so even the partners —

Kathryn Rubino: It’s a very difficult culture at a firm when it’s lockstep than when it’s eat what you kill and that’s almost undeniable.

Joe Patrice: Yeah. So when you have these firms like a Jones Day that goes out of its away to say that basically once you are out of your first year, it’s all bets are off and kind of a Thunderdome atmosphere of how people get paid, that continues all the way through the partnership.

There is a libertarian streak obviously at places like Jones Day that says, well, this is the way it should be. People should be getting paid what they are making for the firm and nobody should be able to talk about it.

But if you are considering going to firms like this, you need to recognize that the kind of veil that they put over it for the purposes of giving people disparate pay means that people are getting disparate pay for reasons that are not transparent. And that’s exactly the sort of situation where discrimination, either explicit or implicit, conscious or unconscious, starts to manifest itself.

So if you are considering firms, whether you are a diverse lawyer yourself or if you just care about these issues this is a reason to inquire before you join a firm about how the firm’s structure works, not just at the associate level, but at the partner level, because that will trickle down to the culture, and that’s an important thing that a lot of people don’t think about.

Kathryn Rubino: Yeah. I mean the other kind of part of that is that if you are going to a firm that doesn’t pay in lockstep, no one joins a firm thinking they are the person who is going to get the bottom of the pay scale, right?

Joe Patrice: Right.

(00:14:47)

Kathryn Rubino: Everyone assumes that they are smart, they are good at their job, they are going to be the ones that break the mold, that get above the market, when in reality it’s very, very few people, even absent any sort of bias, it’s very lucky.

Oh, you happened to be on a case that went to trial and you were able to bill, I mean, “lucky” is a kind of a weird word for them and the billing that I am sure was — accompanies that sort of work, but it’s not always a lawyer’s fault that they are not able to bill at the same rates as some of them appears, and no one goes into a firm thinking that they all won’t be able to find work, but that’s — that’s a very real situation for a lot of people.

Joe Patrice: Yeah. So what else is going on in the kind of diversity world? You talk a lot with people on — through your work both on Above the Law and on your own podcast about diversity in the law, what issues are you tracking and news are you tracking at the moment?

Kathryn Rubino: Well, the other big thing that kind of happened this week is the Federal Contract Compliance Programs Director named Craig Leen, they basically monitor government contractors which include a lot of law firms, and whether or not they meet the standards that the government has particularly in the areas of discrimination. And the OFCCP had a town hall meeting with legal industry insiders and said that they were concerned about a lot of the diversity issues in the legal sphere, which you know, me too; I am pretty concerned about a lot of these.

But, specifically the organizations that they are looking at how big law firms adjust low representation rates of women minority, is a minority of women at the partner levels, how the firm treats and where are the current levels of people with disabilities at the firm, how do billable hours accommodate family leave, how do firms ensure men and women are treated equally regarding family leave policy. So this are some pretty big questions that are absolutely kind of essential to the whole industry, and it’s kind of refreshing to see a Trump administration official really trying to push for greater transparency and diversity.

Joe Patrice: That’s an interesting and call me a bit cynical, but the idea that a political appointee within the — to the extent that it’s now like a confirmation piece, but this is someone that Alex Acosta brought in when he joined the Labor Department. This particular Labor Department would be this concerned about that is shocking and it could well be that Leen is just a honest broker who understands the law and sees an institution in particular law firms that barely notoriously fail at these sorts of diversity efforts that most of Corporate America does make an effort toward, and that’s why they are after this.

The more cynical read is that much like the way the tax cuts affected high net worth individuals except doctors and lawyers basically, the professional class that tends to skew more democratic voting than not, may be not Jones Day but whatever. That it does strike me as though there’s some level to which this could be part of a campaign generally against law firms that these are the kinds of bad guys like in the system from their respective that law firms are in their kind of Manichean world view, the bad liberals and so that’s the industry that gets scrutiny where other industries that may have issues what would not. I hope that’s not the case, I hope this is an honest broker situation, but I can’t help but take that into account.

Kathryn Rubino: Yeah, I mean, did say in his comments that his office is currently focused on the legal industry, the financial services industry, the tech industry, and universities, which are not known to be particular conservative as these things go.

Joe Patrice: Finance is pretty much the only one of those that has any reputation that way, I mean, going after academia is obviously a shot on that front.

Kathryn Rubino: Sure, there’s definitely a point to which this is in particularly on brand for the Trump administration, but I am not sure even no matter what the motivations for putting kind of the pressure on the legal industry. I am really not sure to care what they are, I think that it’s beyond time that more concrete steps were taken and this was said actually during the town hall as well, but most law firms don’t have government contracting as a large source of their revenue.

So there’s a very real possibility that no matter what the OFCCP does or says or has for compliance issues that it won’t necessarily change the legal industry because it doesn’t have enough leverage over the majority of firms, to sort of mandate any sort of clear-cut change. But I think that it’s just kind of another avenue for pressure on the industry like these lawsuits that we have talked about, like the PR issue, it’s just another way, and I think that when it kind of comes to this fevered pitches when we finally see things change.

(00:20:05)

Joe Patrice: Yeah – no, I think that’s true.

Kathryn Rubino: I don’t want to say it’s like all terrible news. There’s been a rash of partners forced out of their firms because of inappropriate behavior and conduct and why that may seem like not good news because there is a passion of inappropriate behavior and conduct. I think it is kind of good news from an industry level perspective, because it means that law firms care more about getting rid of bad actors than they do about their potential revenue stream. Their book of business is not part of the calculation when someone’s well-being and safety are being put at risk. And I think that that is a positive change, it’s not something — those weren’t the stories that we were telling at Above the Law 10 years ago, those are frequently the stories that we’re telling now.

Joe Patrice: That’s true. Talking about changing around partners and taking us full circle back to the mommy track idea, one issue with that kind of model being used at law firms is this push towards de-equitization that the modern big law firm has gone through. It used to be your associates and then you were partners. The idea that — I mean that is a fairly absurd way of organizing a business, it’s a nice one in theory but it is a fairly absurd one, so people kind of felt they were being high-minded by creating all these sub-tiers, the counsels the senior attorneys.

In recent years there’s been a push toward just taking partners and kicking off their equity share and still calling them partners. There’s been a move towards pushing people towards “partnership” when they really are just off counsel/special counsel however you want to call it, it looks nice on the letterhead, it makes it seem as though there is a more diverse pool of people, because look at all these people listed as partners, but they are not partners, they are not getting the equity share, it is used to bump up artificially the – well, I mean, I guess technically not artificially but to inflate the profits per partner because they only count profits per equity partner there, while they with the other hand that’s with one hand while the other hand is showing a letterhead that is more diverse.

And that’s the kind of mommy track problem that we were talking about before and it’s something that only really exists because of the incredibly opaque de-equitizations process that a lot of law firms have gone through. And that’s another thing that people considering work in legal should consider is — is the firm honest about who is a partner and who isn’t, because if it’s not that’s a problem.

Kathryn Rubino: And I will say that is one of the other questions that OFCCP had for the legal industry which was increase transparency for who is making equity partner, who is making non-equity partner in terms of diversity measurements as well. So that is also something that lots of people are thinking about how the different types, and the different quality of partners are playing into diversity questions.

Joe Patrice: Yeah. Well, this is very interesting stuff. Good conversation to continue, obviously, you write here, and have imprint within the Above the Law called The Jabot as well as the podcast, so people should be on the lookout for that stuff.

Anything else you want to throw in before we start the process of winding up?

Kathryn Rubino: No, I think — I think 23:29 about a lot of things at the end of the day.

Joe Patrice: Fair enough. So that’s Kathryn Rubino, I am Joe Patrice, you should be reading us at abovethelaw, you can follow me @JosephPatrice, she is @Kathryn1, is that correct?

Kathryn Rubino: That’s correct.

Joe Patrice: Yeah, Kathryn, those are our Twitter handles. You should be subscribing to the podcast, you should be giving in reviews, not just the stars that we appreciate those but also writing nice things because that helps the algorithm, it takes those things into account when pushing up mid-show among the recommended shows out there.

Special thanks of course to Smith.AI who is sponsoring the show. If you need receptionist, that’s a great place to go. The information was at the beginning of the show.

You should listen to all of the LTN shows, as well as Kathryn’s Jabot and Book of Business, all these other various shows in the legal pod sphere. And with that I think we are done trying to think it’s been — unfortunately for me it’s been several weeks since we’ve had one of these shows and that means I’m out of the muscle memory of all of these thank yous.

Kathryn Rubino: I think you did a pretty good job, friend.

Joe Patrice: Oh, fair enough, I mean at this point — at this point we are at the end of all of these mentions, so this is like —

Kathryn Rubino: Two people are left listening to you.

Joe Patrice: Oh yeah, I mean, this is the part where this is like the end of avengers part where we’re going — we were the really important thing happens and nobody heard it, so. Yeah, right, well, let’s see if anybody — if anybody did stick around to this end you should treat at us that you did so, we will be impressed that people made it all the way to hear.

(00:25:09)

Kathryn Rubino: It’s basically your mom though, I’m pretty sure.

Joe Patrice: Fair enough. I mean it’s certainly isn’t you, we learnt that earlier. Okay —

Kathryn Rubino: Aw!

Joe Patrice: — yeah, alright so with that we will talk to everyone soon and we will get to those decisions hopefully next episode because hopefully Eli will be both back in town and helpful.

Kathryn Rubino: Bye.

Joe Patrice: Bye.

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