A Supreme Court expansion proposal is officially out there. It’s not going to pass, it’s not a particularly good idea, but might proposing it be a smart tactic? Meanwhile, as we get new insights into Biglaw finances from the Am Law 100 release, we got a hefty clue into Covington & Burling’s business plan when we learned Eric Holder’s hourly rate. Is this too much to bill a client or are people overreacting? Finally, the bonus wars continue, but are counsel and income partners getting left out?
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Kathryn Rubino: Hello. It doesn’t get old for me.
Joe Patrice: For you. I thinks that a very — for you it’s doing a lot of lifting in that sentence
Kathryn Rubino: Yeah but I’m really only concerned with that.
Joe Patrice: So welcome to thinking like a lawyer I’m Joe Patrice that’s Kathryn Rubino. We’re editors at Above The Law we bring you this podcast every week, where we roundup some of our thoughts on some of the bigger stories of the week in the legal industry. How have you been?
Kathryn Rubino: Pretty good you know, spring has largely sprung.
Joe Patrice: Yeah.
Kathryn Rubino: It feels like associated bonuses are once again in the news.
Joe Patrice: Yeah.
Kathryn Rubino: But I don’t need any of that any of your —
Joe Patrice: Any of what?
Kathryn Rubino: For our listeners Joe has given me a lot of rolling of his eyes. I know we’ve talked about bonuses ad nauseam on this podcast —
Joe Patrice: That’s true.
Kathryn Rubino: But you know, it is a pretty big subject.
Joe Patrice: Yeah.
Kathryn Rubino: I mean the newer development is not a surprising but it’s that not everybody is —
Joe Patrice: Okay I thought that was going to be a whole category.
Kathryn Rubino: I did too and I thought that’s what you were trying to signal me to do.
Joe Patrice: No, no, see you’re just really bad at this whole taking direction and signaling thing.
Kathryn Rubino: Well because you just are like looking at me weird.
Joe Patrice: No see, so, for the previous you know, three or so odd years that we’ve done this together, there’s an introduction where it’s not one of the topics.
Kathryn Rubino: We’ve not done this for three years.
Joe Patrice: Fair enough okay.
Kathryn Rubino: Anyway, spring has sprung, I’m fully vaccinated and I’m ready to go out.
Joe Patrice: Excellent.
Kathryn Rubino: Is that what the kind of stuff you want to talk about now?
Joe Patrice: Not necessarily but I mean I just figured it would be anything that was not you know, the subject that we have fully worked out that’s going to be fleshed out as a topic down the road you know. See I think hopefully our audio engineer can catch that sound, something was wrong with the system. So anyway okay —
Kathryn Rubino: So how are you doing these days?
Joe Patrice: You know, not terribly. It’s been a busy, busy week for me. I’ve got a lot of separate jobs going on at once and it’s somewhat stressful I feel like I mean look I think like a lot of people and I you know, this is going out to the law students out there who feel this I think almost more so than the lawyers — well not —
Kathryn Rubino: Academic year.
Joe Patrice: Yeah end of the academic year sort of for them but the starting and stopping on a wholly unrelated set of tasks is really stressful for a lot of folks and that’s where I am you know, I have some other jobs, I do this as well as some consulting and stuff and I run like a treasure for a non-profit and stuff like that and I just have tasks built up for all of them and the mental work of shutting down work on law to do accounting to shut that down to do work on —
Kathryn Rubino: So you’re bad at multitasking?
Joe Patrice: It’s not so much multitasking which obviously that is part of it too but it’s more than just multitasking it’s whole multi-literature basing, it’s like the whole set of things that you do with your head are completely different because it’s just like doing a bunch of spreadsheet math is not my legal writing work and so on so you know, that’s been very stressful so that’s all I was saying.
Kathryn Rubino: Fair enough, fair enough. It’s hard for me to be stressed out with the weather being as delightfully springy as it is but I feel you. You have to kind of switch gears and that’s rough for you.
Joe Patrice: And I mean I guess I shouldn’t just say that it’s law students who deal with this I guess that are — at big law firms that’s not you know, that is a thing you basically do your thing but if in case to case but that’s still you know, your skill set but like smaller law firms don’t have, they also have to switch hats a lot because you know, it makes me think you went to law school to be a lawyer not an accountant take advantage of Nota, a no-cost IOLTA management tool that helps solo and small law firms track client funds down to the penny. Enjoy peace of mind with one-click reconciliation automated transaction alerts and real-time bank data. Visit trustnota.com/legal to learn more. Terms and conditions may apply.
Kathryn Rubino: So are you actually stressed out about this stuff or is it just an elaborate setup for the ad read?
Joe Patrice: No I am, I am it is one of those things where I finish a day’s worth of writing and think oh no, now I have to switch all my gears over to this other thing and I’ll be doing that for five minutes and then a bonus alert will come in and it’s like oh no, I got to stop and switch back you know, so yeah.
Kathryn Rubino: I mean I feel like that’s true though, has been true for you for a while you know.
Joe Patrice: No I mean it is, it’s just a lot of things happened at once you know, and that’s all. I’m not looking for pity on it. I was just making —
Kathryn Rubino: I wasn’t trying to pity you I was trying to judge you.
Joe Patrice: That’s fair I didn’t sense any care and concern.
So well what is new of this week I guess the biggest like substantive news story is that well not the biggest substantive news story but the biggest substitutive news story about subjects that we cover routinely here is that there’s now a court packing bill that exists in the world.
Kathryn Rubino: It’s more than just Ellie’s rantings on —
Joe Patrice: Yeah exactly so there a bill out there.
Kathryn Rubino: So you’ve been pretty vocal that you don’t think it’s a great idea to court pack because there’s just a concern that then republicans when they’re in control will turn around and so something even worse, right?
Joe Patrice: Well, twofold. So if I can finish up on the introduction of the things. So Nadler and Marky have in the house and senate, have proposed a new bill that would move the number of Supreme Court Justices from 9 to 13. This would correspond conveniently and I’m sure entirely accidentally into making the ideological balance of the court move from being a 6-3 conservative majority to a 7-6 liberals to progressive majority. So purely coincidental I’m sure.
Kathryn Rubino: Absolutely coincidental.
Joe Patrice: Yeah, so I have generally been against it and there is a part of it that it could lead to the retaliation, I mean I often use the example of the classic Simpsons Tree House of Horror episode that ends with they’ll just keep making bigger sticks with bigger nails in them until one day they build one that will destroy them all like I think you do this, next time around they do the exact number it takes to move it the other, it keeps going. But I’m actually even less concerned than the tit for tat of it going on forever than I am just the de-legitimization of the court that takes place when every election ends with another expansion to add more people.
Kathryn Rubino: Well query whether or not some of the de-legitimization has already occurred and is occurring in the status quo because of sort of the way that the republicans have flip-flopped on when you can and cannot appoint Supreme Court Justices, you know, I think that that sort of the hypocrisy between the Gorsuch nomination and the lack of Merrick Garland nomination and Amy Coney Barrett that you know, really kind of put a lot of that de-legitimization already on the table.
Joe Patrice: Sure, this is not solvency for that problem.
Kathryn Rubino: No, no, no but it’s a uniqueness claim, right? But if the court is already de-legitimized what does it matter?
Joe Patrice: I think the problem is that this harm is what I would call linear and it just keeps getting worse and just the mere fact that there is one side that has already engaged in some manner or de-legitimization is not a reason to blow up the whole organization I think and it’s also, we’ve talked about this on this show, not you and I but when Ellie was still hosting this show with me you know, back in the glory days.
Kathryn Rubino: Oh wow, wow.
Joe Patrice: Yeah, no, yeah. Bring it.
Kathryn Rubino: You just want to talk by yourself in the next 20 minutes or so, okay.
Joe Patrice: No, back then we used to have a conversation and I’d say that when he would argue for these sorts of reforms. I would say, look the problem is it’s about victory condition.
Kathryn Rubino: Sure.
Joe Patrice: And some games, different players have different things, they constitute a victory for them and makes strategizing more difficult. For the republicans who have built at least as far back as the Goldwater-Reagan era have built their ideology around the idea that when the government doesn’t function, that’s good it proves their point, it proves the government’s bad and so they don’t have as much of an interest in the government working whereas democrats everything they do requires a fundamental belief and trust by the public that the government is able to do its job. So when you’re talking about de-legitimizing institutions, one side has no problem doing that because it helps their victory condition and the other does and so that’s why the retaliation of well then we’ll just break the institution in our direction is fundamentally flawed because it just creates a situation where the democrats delegitimize themselves which is a problem because republicans can continue to be hypocritical forever because it works to their advantage whereas democrats can’t.
Kathryn Rubino: But I think the other kind of counter to that right is that republicans have successfully fundraised and kind of campaigned on the notion of the Supreme Court, right. More effectively than the dems have frankly and so if it’s a question about delegitimizing the only thing or one of the big factors in getting them elected perhaps that will creates more problems for the republicans than for democrats.
Joe Patrice: Well no I mean it just underscores their argument to their voters that the Supreme Court is the most important thing and the only answer is to elect us because the democrats are trying to blow it up. I mean that will be the pitch and we can see that that pitch is well in most parts of the country it seems a little esoteric to talk about the Supreme Court.
We saw that especially what happened in Maine where you had Susan Collins who was the second least popular senator in the country right now but still winning the re-election even though they were polling terribly at the beginning of it. On a campaign that largely doubled down on they’ll court pack if you don’t vote for her and I think there are a few seats that really locked into this and we see that it can be successful because the public generally is not pleased with the idea of packing. Our argument has historically been around here, well I guess not around here because Ellie was here but my argument has been and the argument shared by nonpartisan organizations like fix the court that the answer is some version of Laurence Tribe’s proposal to create an active panel Supreme Court and have people stagger off of it.
Kathryn Rubino: Term limits.
Joe Patrice: Basically term limits not that they would cease to be justices or —
Kathryn Rubino: Because the constitution is a thing.
Joe Patrice: Well, sort of, it’s questionable whether the constitution really says what people think it does when it says good behavior but assuming it is that meaning, the argument would be that after a certain period you would leave the active duty Supreme Court, you would still be around to fill in, you would still get paid you would still be able to ride circuit do all those sorts of jobs but the active panel of the Supreme Court would continue to turn over every two years one person would leave a new person would come in and that would create a world in which you could be an 18-year term on the active court still says at nine, fixes a lot of these problems. Returns the court to being something where there’s lower stakes for every individual nomination have more of a balance that it’s a lagging indicator of what the electorate believes as opposed to somebody getting in and three people happening to croak at the same time another problem of just adding a bunch of people in one fell swoop of course is you’re just setting up a situation wherein a decade and a half that all four of those new justices are all going to be up at the same time and who knows who’s in office at that point which is another problem with just wholesale adding seats in one swoop. Anyway but that’s what we’ve historically thought although I wrote an article last week where I think actually this might not be the worst proposal to bring up at this point. I think while it has been damaging in the past for democrats to talk about court packing, this could actually be one of those rare instances where doing so could be a valuable strategic measure because it kind of sets you know, you don’t want to against yourself you set up the idea that this is a hard-line position and maybe it makes a more reasonable one like —
Kathryn Rubino: Sure negotiations that you don’t come in with your, you know, walk away offer.
Joe Patrice: Yeah it might set up a situation where people are more willing to take the more reasonable and useful offer so I don’t know it’s something that we’re going to monitor and see what happens with it obviously, I don’t think it’s going to go anywhere given the constitution of the senate and all but it’s an interesting idea that could have some strategic value and maybe making it more likely that people crossover for something else.
Kathryn Rubino: Sure but the other part of that of course is that you know, we have kind of have a clock going to the next senate election where the democrats might lose their slim majority right, so if there’s things that need to get done that are considered you know, must do’s you know, there.
Joe Patrice: Yeah but I mean this isn’t doable now like putting aside, putting aside the filibuster there are two democrats who won’t do it now.
Kathryn Rubino: Right.
Joe Patrice: But it is the sort of situation where if this were the goal post and you compromised on a term limit bill that would be valuable and it may not be valuable for the short-term liberal interests but it would be more valuable for the country as a whole to have a reasonable ordered system that staggers people and makes it a link — I keep using the term lagging indicator but I mean that’s what we really want is you want it to be hey 18 years ago we elected this person and their views are reflected but it doesn’t mean they get to hold their hand on the till of the constitution for 30 years.
Kathryn Rubino: Or as long as science will allow.
Joe Patrice: 1: Yeah exactly and it also opens the door to actually qualified people who aren’t 46 years old and just like the youngest person someone can find so that maybe we could hold this seat for 40 years like we’ll go back to a world in which actually competent people might get nominated.
Kathryn Rubino: Yeah instead of having to use actuarial calendars to be like oh this person is more likely to live because which is a weird way to picture.
Joe Patrice: It is yeah, no and not a great way of doing anything. Anyway so let’s transition off of this. We’ll make the transition be about administrative tasks you know, because that’s one of the jobs of the chief justice here that’s the best I have on that. Let’s hear from our friends at Lexicon.
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Joe Patrice: All right so how much do big law partners bill?
Kathryn Rubino: How many hours do they bill?
Joe Patrice: I meant money.
Kathryn Rubino: Oh how much do they charge for the hour? Up until about a week ago I would have said in 1,800-1,900 dollars is what I would say the top of the market was.
Joe Patrice: So since then what has happened that has led us to believe it might be more.
Kathryn Rubino: Eric Holder’s billing rate became public.
Joe Patrice: Okay. So Eric Holder former attorney general who is now at Covington Burling, his billing rate became public as part of you know, sometimes these things happen, public disclosures happen, it actually happens a lot not that his didn’t come through this process but it happens a lot at the change of administrations because you start getting federal forms —
Kathryn Rubino: Right, this is how much I made and build whatever.
Joe Patrice: So he billed 22.95 an hour.
Kathryn Rubino: That’s a lot of money.
Joe Patrice: It’s a decent amount and it’s not the full amount —
Kathryn Rubino: Right, I think there was a part of the arrangement of the deal or the case that became public was there was actually a 10 discount.
Joe Patrice: So yeah, so more than 2,300 an hour.
Kathryn Rubino: That seems — okay so as I said previous to this there were some information — public information that the top big law partner rates were you know, in the high thousand dollar you know, 8’, 17’ to 1,900 an hour and really it’s not that much of a jump to go from 1,900 to 2,300 right? That’s not a giant amount of difference when you’re talking about the thousands but I do think that there’s a crazy psychological difference between some a number that starts with the one and one that starts with the two the same way you know, 10 years ago there was a big deal from when the partnership — when top partners were finally billing over the thousand dollar mark right? There was a giant controversy about the difference between a 900 bill and an 1,100 bill you know.
Joe Patrice: I mean and inflation exists I suppose although it’s very, very small, I feel as though this isn’t all that bad I think that —
Kathryn Rubino: I don’t think it’s bad I think it’s first of all I think it’s interesting to note what the top of the market will bear. I do think, it’s interesting to see also the kinds of law firms that or the kinds of lawyers that can really dictate this very top number even if there is some sort of a psychological distinction between you know, over 2,000 and under 2,000.
Joe Patrice: I think that there’s one aspect of this from my perspective and look there are there are issues with revolving door between public and private that are problematic. We write a lot about the revolving door projects, work on this, that said, I feel as though one reason why someone like Eric Holder can bill what he bills is when you think about the law firm industrial model, a lot of money gets generated by leveraging associate efforts, that you build them out less but there’s more of them doing a lot more work and so the pyramid works out that the partner isn’t billing quite as much but is collecting more because they’re leveraging a bunch of associates. That said, I feel like to me and maybe I’m wrong I haven’t seen you know, what Eric Holder works on, I feel as though Eric Holder doesn’t get hired for the sort of matters that lend themselves to ton of leverage, I don’t think he’s running a run-of-the-mill civil trial that has 30 associates running around on it I feel as though people are calling Eric Holder to deliver some kind of expert opinion on criminal matters that are complex but also ones where it’s mostly he’s going to be the one who calls up the DOJ and argues with them and so on I’m sure there are associates people helping him collect his materials but I don’t think it’s like a 20-30 associate army that he’s at the top of it’s probably one on one maybe one-on-two kind of a job.
Kathryn Rubino: So but doesn’t that kind of mitigate the other way saying that because Eric Holder is doing so the bulk of the work on these matters that the higher rate is more egregious because there’s more hours that he’s sort of billing.
Joe Patrice: So I mean I guess there’s that but I’m not even necessarily saying that there’s more hours as a cumulative thing either. I think though that his specialized knowledge is getting rewarded with this higher rate and the fact that he can’t be pushing work down on as many other people at least not as much to get that kind of big leverage advantage yeah that makes some sense to me.
Kathryn Rubino: I mean I don’t know listen I have written in defense of big law billing rates on numerous occasions in the past, there was a big kerfuffle when I think Barbara Jones’s billing rate became public oh she bills over a thousand dollars an hour and I was like that’s fair.
That is a fair market rate for her knowledge for big law partners in the thousand dollar range, I thought was very fair and I even having written that numerous times in the past and believing that you know, that’s kind of what the market bears, seeing that number was it was a bit of shock even for you know, oh big, good job.
Joe Patrice: Yeah, it is shocking but again like I don’t know I feel as though this is something that is probably more unique. I don’t think that there are even —
Kathryn Rubino: In terms of specialized knowledge for sure.
Joe Patrice: Yeah I think there are even very important and well-known and trusted bet the company litigators who are not billing at this level because the sort of — the model doesn’t work the way where they need to. They can bill 1,600 an hour and bill very few hours themselves because they’re farming it out to associates who are billing 1,600 dollars an hour and billing a crazy ton and the partner is only being involved for very high level intervention.
Kathryn Rubino: But the other part of that of course is that now that this billing rate has become public it’s sort of tacit permission amongst the industry that if you have the people that you think are on that level, it’s okay to kind of cross that Rubicon of 2,000 dollars.
Joe Patrice: Yeah no, I think that’s very true and you know, I mean there’s one that’s one way to make money is to just keep raising your rates I mean law firm demand has been down for several well not down it has been barely increasing for many years and people have been making more money by raising rates and you know, hey that’s one way to do it and it’s one way if you were trying to answer the question.
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Kathryn Rubino: I actually think the tone of your voice changes slightly when you’re excited about your intro to the ad read.
Joe Patrice: Oh yeah?
Kathryn Rubino: Yeah.
Joe Patrice: Oh interesting.
Kathryn Rubino: Yeah I mean I don’t know maybe I’ve just been listening to you read a lot of ads in my life but yeah it feels obvious.
Joe Patrice: Fair enough all right that said partners making a lot more money associates making big bonuses who isn’t?
Kathryn Rubino: As I sort of previewed earlier not everyone is getting the big special bonuses that we’ve been writing about.
Joe Patrice: Oh really?
Kathryn Rubino: Oh really.
Joe Patrice: Tell us about that.
Kathryn Rubino: You’re such a jerk. Well I’m of course talking about council. It’s sort of that you know, in between space between associates and partnership and oftentimes they get left out of the bonus structure. We wrote about some bonuses the end of last week at King and Spalding and no mention of what council will be getting if anything at all and we heard from some tipsters at the firm and this I think council are rightly annoyed that they have not received word what if any special bonuses they’re going to get. You know, this puts counsel in an awkward position where they’re oftentimes making less money than the associates that they are managing. I don’t think you want to put folks in that position.
Joe Patrice: Yeah. The council job is a weird a weird hybrid job. I feel as though it is in some ways it’s kind of the best and worst of all possible worlds. The golden handcuffs analogy is very apt when it comes to counsel because you are making more money than associates as a general matter not necessarily the people in their eighth year who are getting the giant bonus but you’re mostly making more money than associates. That said you’re just kind of barely making more money than associates. Now on the other hand those associates are largely getting weeded out over the years but you’ve made it to a point where the firm has determined that your services are valuable enough that you get to set.
Kathryn Rubino: But that’s what makes it more bizarre right? Like a firm has — affirmatively said you are valuable to our business right, because listen a lot of firms do an up and out kind of model if you’re not up for partnership then you’re out the door you know, but this is folks that say no, you are valuable you have some knowledge, some skills that either you’ll be up for partnership in just a few more years or you know, you are good at what you do and we don’t want to lose that valuable talent.
Joe Patrice: Yeah.
Kathryn Rubino: But we’re not going to pay you.
Joe Patrice: Right, well and part of it is that you’ve kind of shown by taking that job you’ve also shown that you’re —
Kathryn Rubino: You’re showing your hand —
Joe Patrice: You’re kind of pot committed to I’m willing to work at this rate and that’s a problem too for folks who take that gig because you’re basically saying in those seventh and eighth years when it looks — when it’s becoming clear to you you’re probably not going to become partner that you’re willing to stay here because you think it’s okay to get paid at that lower rate and they now have that information.
Kathryn Rubino: Plenty of people become partners out of the council ship right?
Joe Patrice: Yes of course some do and so some of it is you’re cool with being strung along like that but yeah it’s an awkward place to be.
Kathryn Rubino: The other part of it I think is sort of the lack of transparency on council rates and council salaries and council bonuses obviously transparency is kind of my mantra when we’re talking about big law, it’s something I talk about all the time but you know, it’s really easy to look at a chart and say oh I’m a third year, how am I much making it big law firm 1 versus big law firm 42 and if they’re the same levels feel like they’re the same kind of a firm but because there’s sort of this veil of secrecy around you know, people who are off the chart meaning like off the grid of you know, associates for years then who knows and sometimes that means you know, a council is making some less than a 2014 graduate and that’s kind of crappy too.
Joe Patrice: Yeah well and then the problem that I have foreseen for a while and I’m starting to see it happen because a lot of these council which used to be called council and really did signify hey this is somebody probably in a niche non-book building practice but it is necessary and we treasure them and give them something that’s not quite a partner but it’s not what — but it’s better than associates. It’s what that used to be and it has kind of morphed into this acceptance of the income partner where you’re a partner who is not partaking of the big bucks but you also have a title but a title that you know, ultimately doesn’t really matter much it like if you’re ever going to try to move somewhere they’re going to ask what what’s going on with you financially, what your book of business is before, they’re not just going to say oh it has the word partner, I feel like I’m fine and so that even further traps people in a place where they can’t necessarily leverage what they do into a different job and then you know, it’s easy to take advantage of them and it obviously we all should be taken advantage of with 300,000 plus salaries but still in relative to the industry that they’re in.
Kathryn Rubino: And again you know, it’s not just relative to the industry it’s literally relative to others working below them.
Joe Patrice: Yeah.
Kathryn Rubino: But to me that’s the big — that feels more like a slap in the face than just you know, oh well you we’re stringing you along for an unclear number of years and the promise that maybe one day you’ll make partner right I think that’s saying that like oh weave out you have a higher title, you are more important and yet paying you less is real problem and you know, who knows council are — and even in best case scenarios are dealt with on an individualized basis so there’s really no market to compare and contrast and perhaps even at King and Spalding council will get bigger bonuses that will make up this difference so fingers crossed for all the folks that are kind of in this in-between position but I definitely think —
Joe Patrice: I don’t think it’s just that firm either.
Kathryn Rubino: It’s definitely not just that firm, that’s just the most recent one that has come to our attention. For sure not the only firm but you know, and perhaps I hope all of them get the pay day that they deserve but calling attention to it I think is also part of the process.
Joe Patrice: Yeah no I think that’s true you know, who else calls attention to things like this? Above The Law which you should be reading and also you should be subscribing to the podcast that we do which is not only this one but also The Jabot which Kathryn hosts about diversity in the law and I am also a participant in the Legal Tech Week Journalists Roundup as we call it as well as the Clubhouse Legal Tech Trending News conversation you know, testing up that new clubhouse thing, I’m sure they’ve already stolen all my data so there’s nothing else for that yet.
Kathryn Rubino: A little bit accurate.
Joe Patrice: Yeah and also all the other offerings that we aren’t involved with the legal talk network you can check out too. You should be giving our podcasts reviews, stars as well as write something about them, helps them move up the algorithm social media, we’re both on, @josephpatrice she’s @kathryn1, the numeral one as we always describe it. You should check out our sponsors Nota powered by M&T bank. Lexicon as well as LexisNexis interaction and their 2020 downturn report as well as other reports and with all of that said I can see Kathryn is like super eager to say the last thing because she wants to be done but I’m going to keep stringing this out, so that there’s no —
Kathryn Rubino: Like I’m a council at a big law firm.
Joe Patrice: Exactly, I am.
Kathryn Rubino: Please.
Joe Patrice: Alright, bye.
Podcast transcription by Tech-Synergy.com