Last week, a handful of Biglaw firms contacted Above the Law trying to rewrite their whole firm image. International firms still headquartered overseas trying to rebrand as American and firms historically embraced as for growing up outside the NYC white-shoe culture wanted to be portrayed as Knickerbocker blue bloods. Who thinks this will work? Also, we discuss Latham’s holiday party COVID debacle and have an extended discussion of the canons of statutory interpretation and the Formula 1 season finale that could end up in an international court.
Special thanks to our sponsors, Lexicon and Nota.
Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer, I’m Joe Patrice from Above the Law. I’m joined as per usual by Kathryn Rubino and Chris Williams.
Kathryn Rubino: Hey folks.
Chris Williams: Hi.
Joe Patrice: And yeah, so we’re here to as usual, discuss the big stories in the legal universe or legal tangential universe I suppose of the week. When it’s — Thinking Like a Lawyer because you can use your legal mindset to do a lot of different things.
Kathryn Rubino: I feel like you’re leading us to a very specific conversation that I am very anxious to have.
Joe Patrice: Well, I am leading us to a conversation that you very much wanted to have, specifically and requested and it will take the place of today’s small talk.
Kathryn Rubino: Seriously?
Joe Patrice: Yeah.
Kathryn Rubino: I specifically set up the situation where we did not have to do small talk and then you still gave me the sound effect for small talk.
Joe Patrice: Oh, yeah, I did.
Chris Williams: I just wanted to be clear for all our loyal listeners listening in, I was not consulted on small talk and not being a thing. And I was very excited to talk about some — a couple of pairs of jewelry I had coming in the mail, but whatever, I’m not important. Let’s —
Joe Patrice: No, by all means.
Chris Williams: No, no, no, I insist, let’s do whatever —
Joe Patrice: No, no. no. I am now intrigued by this. So, what, is there some legal connection to the stuff you’re getting?
Chris Williams: I’m going to be a sexy lawyer, that’s the connection.
Kathryn Rubino: So, you bought yourself an early Christmas gift, is that what happened?
Chris Williams: It’s either an early Christmas gift or a very late birthday one, since my birthday is in March but I got myself —
Kathryn Rubino: Or super early birthday gift.
Chris Williams: Hey, you know, it’s important to have foresight.
Kathryn Rubino: So, what did you guy?
Joe Patrice: Is this like a giant JD (ph) or?
Chris Williams: No, I have tacked. No, it’s a smaller JD. I got a little dangly earing, I like the dangly earing. Just like — it’s cool. It goes on just one ear but that’s cool because I only have one ear pierced from when I was like a baby. I was okay with the first one, but after that I was like, I was not a fan of this. My mom listened to my warnings but I’m not getting that. I’m getting a fancy ring, I had a ring before like a pinky ring, but it broke. I guess I hit too many a door handle, but I miss it so I’m getting — I’m reopened on that.
Kathryn Rubino: That’s funny, the first gift that I bought for myself with my first bonus from Big Law(ph) when I started being a lawyer was a ring as well. I bought myself like a fancy like cocktail ring. That actually doesn’t — it’s too big for me now, but I could get it sized if I wanted to, maybe that’ll be my Christmas gift to myself.
Joe Patrice: Yeah, there you go.
Chris Williams: I didn’t even know rings came in that flavor, “cocktail.” I thought they were just like signet rings and wedding rings or what have you.
Kathryn Rubino: A cocktail ring is like a kind of a fancy like diamond-studded kind of an affair. It was like — I know, it’s really pretty, I’ll wear it someday. But it was like for my middle finger on my right hands and it was yellow and white diamonds and like a design in the center.
Chris Williams: So, did you do it just so your effuse(ph) were in style or?
Kathryn Rubino: I did it because it was really pretty and I saw it in the window as I was walking home from work one day and I said, “I deserve this, I’ve worked a lot.” So that was why.
Chris Williams: That’s cool.
Joe Patrice: I did not. The only scenario in which I’m going to have a ring is if I in fact win the Super Bowl and since that’s starting to look like it’s not going to happen. Who knows?
Chris Williams: You can do a lot with a JD.
Joe Patrice: Yeah, exactly, right?
Kathryn Rubino: It’s almost your initials.
Joe Patrice: Yeah. Anyway, so Kathryn there is a sports situation that is becoming rapidly, a legal situation.
Kathryn Rubino: Yeah, so it completely fucked up my weekend. The F1 Championship was decided theoretically this weekend. Lewis Hamilton absolutely should have won and I refuse to acknowledge Max Verstappen championship, so there we are.
Joe Patrice: First asterisk. Yeah.
Kathryn Rubino: Seriously, all the asterisks.
Joe Patrice: Yeah. So, the crux of this for anybody who doesn’t follow this sport —
Kathryn Rubino: First of all, you should follow the sport.
Joe Patrice: But what’s interesting about it that makes it — thinking like a legal thing is there are now actual lawyers involved because there are actual questions of statutory interpretation coming up. We make fun of something like that a few years ago. There were sports fan of football fans who like sued over the result of a game because of a missed pass interference call or something like that. But this is where there are actual legal regulations that just got ignored and at this point, they’re all admitting. The people in charge are admitting they ignored the rules but claiming they have the ability to change the rules of the sport on the fly if they feel like it.
Kathryn Rubino: Why have them written down then —
Joe Patrice: — which strikes one as an interesting precedent set and so now, this is very likely unless something really crazy happens in the next few hours going to be elevated to a series of European judges who will decide how to interpret these rules. To give a sense — one of my favorite classes in law school was statutory interpretation for a lot of reasons, not the least of which I was a policy debater in college. Which all three of us were.
Chris Williams: Triple boo!
Joe Patrice: Back in my day, topicality was a little more formalized than it is today. There were a lot of references to the old cannons of grammatical construction, and stuff like that. So statutory interpretation was great because it was basically giving Latin terms to things I already knew how to debate in topicality. Things like if you have two clauses and they’re open to multiple interpretations, but one of the interpretations makes the other irrelevant or redundant or nonsensical, then that’s the wrong interpretation. So even though you can take that clause and say “Here it means this, if it makes something else not make sense, that’s why you would throw it out.”
Kathryn Rubino: I mean I still judge policy debates and that is what the controlling interpretation in my mind. If someone makes that analysis, I’m like, “Yes, we can’t have their interpretation because it would moot out other parts of the topic.”
Joe Patrice: Right. That whole mooting thing out thing. It used to be a lot more formalized in the conversation. The debaters have taken shorthand as the years have gone on. But it is a thing that exists and it’s a thing that, as I read the sporting regulations of this sport seemed to be very much in play right because when you look at it, it says, “Here’s the procedure for dealing with lapped cars at the end of a race.” And then, there’s another clause that says, the race director, has the ability to end cautions whenever they want and they’re taking the stance – the FIA, that that latter decision — that that latter clause, trumps everything else, which then raises — there would be no reason to have the first regulation if the second one trumps it. So, using that canon of construction, one would assume that it means that you do not have the ability to use that latter one to invalidate, the first.
Kathryn Rubino: And for those who maybe did not follow the controversy in F1. What happened was, Hamilton had about a 12 and a half second lead, the manager of the number one rival Max Verstappen’s team was already basically giving concession speech on television saying, literally, “It would take a miracle for us to win.” Then Latifa one of the Williams drivers crashed close to the end of the race. They had a yellow flag, which means that everyone has to slow down and it bunches the cars up. So, the fact that he had this lead was taken away. Max Verstappen was able to change his tires during this time but there were cars that should have been — were a lap off the cycle, right? In between the first person and the second person and the question of what you do with the folks who are off the primary lap is written down. If there is a yellow flag, what happens to those folks that are in between? You have a couple of options. The first is you can let them continue to stay there or you can have any lapped driver go around, get themselves unlapped —
Joe Patrice: To be very specific because I think this is important.
Kathryn Rubino: Yes, this will come up again.
Joe Patrice: The specific wording is any lapped cars are required to pass.
Kathryn Rubino: Right, so they can unlap themselves and then at the conclusion of the following lap after they’ve been unlapped, then the racing can resume. However, if the regulation had been enforced to the actual way it is written, the race would have ended under a yellow flag. And there would be no opportunity for Max Verstappen to take over the lead from Lewis Hamilton and Michael Massey who’s in charge said, he was only going to allow some cars to unlap themselves, not all the cars.
Joe Patrice: So that he could have the race happen.
Kathryn Rubino: Right.
Joe Patrice: Which screwed up other people’s races but allowed this — the any required tough is critical because another topicality discussion is the word “any” can have multiple meanings. It can mean some, it can mean all. But in the grammatical structure of the sentence, any lapped cars are required to do, whatever. That means all of whom, there is no scenario where you can claim that that means some or it makes the word “required,” make no sense.
It’s unbelievable that they are going with this as their defense and as a lawyer, I kind of felt like — And as a lawyer, specifically, who did white-collar criminal defense, it was almost as though, the way the stewards were trying to defend themselves was like, they were blathering to the cops and answering every question and digging themselves deeper. Because there’s a way in which could have said there are broad powers for throwing the rule book out if it’s like a matter of safety. They could have said, “Well, we decided there was a safety reason for this” but they didn’t, they instead went all in and said our interpretation is the “any” doesn’t mean all. That clearly makes no sense.
Kathryn Rubino: They also specifically said that the regulations were not fully, they used the word “Fully” followed. I was like there’s no kind of pregnant right? Either you follow the rules or you don’t.
Joe Patrice: Yeah. So, in a lot of ways, this was the ideal sporting event for lawyers because you’re watching it and just thinking, this is all written down.
Kathryn Rubino: They wrote down the rules for a reason.
Joe Patrice: This is not a question of a missed call. Like somebody didn’t see a past interference or something like that. This is a situation where they literally changed the rules of how races work at the very end arbitrarily.
Kathryn Rubino: And to the detriment of probably the best racer that has ever raced in the history of racing.
Joe Patrice: Yes, and so now this will be elevated; assuming nothing crazy happens to actual judges, who will have to interpret all of this and there are lawyers already on the scene, drafting documents. It’s going to be great because —
Kathryn Rubino: Yeah, there was an in-house lawyer for Mercedes that was already in the first hearings of appeals that were ruled against —
Joe Patrice: And that’s the moment you knew this was serious because they knew that the other folks, we’re going to answer questions — the cop’s questions basically. That’s — you brought a lawyer because you knew they were — and you wanted to be in a position to contemporaneously document every statement they make here because it’s going to be used against them. Fascinating and it does set up a very interesting next couple of months for those of us who are lawyer sports fans to see the law make its way into sports. I mean, potentially given the shadiness of the particular sporting agency involved, what will probably happen is under the table, they’ll give Mercedes $20 million and have it all go away. But assuming it actually goes the distance. It’s going to be very interesting to watch. Somehow, the stewards, try to un-dig hole they dug for themselves.
Kathryn Rubino: It would be very hard; I think that the credibility of the sport has been hurt tremendously. I don’t see money(ph) to the difference between wrestling and Vince McMahon right now then what happened this past weekend, I think that for a newish fan which I am because of the Netflix series Drive to Survive. You know, obviously has a big impact on American at least —
Joe Patrice: It’s still shocking that a sport that collects most of its money from foreign dictators and fascist governments would possibly be corrupt.
Kathryn Rubino: That’s fair. You make a good argument.
Joe Patrice: Anyway, cool.
Chris Williams: one thing I do in this — as a person, the only reference point that F1 has to be is I think it’s a racing thing Captain Falcon was involved in and I know that from this game Super Smash Brothers.
Joe Patrice: Well, he was part of the wackiest race, right? What was it called? There was a Hanna-Barbera cartoon back in the day.
Chris Williams: I think you’re talking about Speed Racer.
Joe Patrice: No, no, no. He was also a racer obviously.
Chris Williams: On speed apparently.
Joe Patrice: Was it Wacky Races? I think it was Wacky Racer or something like that but it was about all of the Hannah-Barbera characters of which Captain Falcon would be one doing a big race. Like Muttley was involved and Dick Dastardly.
Chris Williams: Captain Falcon is F0 according to a little birdy that did not just message me in the Zoom chat.
Joe Patrice: Okay.
Chris Williams: Because it sounded like you were talking that bullshit, I don’t have my phone in front of me immediately to check. Like anyway the whole time we were talking, I was thinking about raving and fighting games and also about JoJo’s Bizarre Adventure, which is a fun show for lawyers to watch. If you want enjoy good television because it is riddled with what should be copyright infringement. Like there’s like a character named REO Speedwagon. Like it’s just full of like musical references and like one of the main characters, mean evil villain is a guy named Dio. Shouts out to people who loves to listen to Rainbow in the Dark what have you. But yeah, I just wanted to make a contribution about media that involved lawyerly aspects. And so there you go.
Joe Patrice: Yeah. Okay. So yeah, I get the F0 thing now. I’m just trying to figure out who was the like hero of Wacky Races then, was it Harvey Birdman? I mean it would have been Birdman at the time, not his ultimate legal interpretation. Anyway, whatever, this ends — birdman, that is correct. This hereby ends the extended version of Small Talk. So, we can run through some — maybe a topic here.
Kathryn Rubino: Sure.
Joe Patrice: I want to talk about totally insecure law firms.
Kathryn Rubino: Okay, okay. I like it. You know, you would think that with their — law firms are literally in the middle of giving out tremendous sums of money to associates. So, you would think that their credibility waws not really being attacked at the moment.
Joe Patrice: Yeah, so all three of us and I don’t necessarily want to name any names of firms here. But all three of us last week wrote stories that elicited some degree of mind-boggling insecurity from law firms.
Chris Williams: Wait, they responded?
Joe Patrice: Oh, did you not get one
Chris Williams: I didn’t get one.
Kathryn Rubino: Well, he wrote the story that was —
Joe Patrice: Yours, we thought would get one and hasn’t. Others of us have.
Chris Williams: And I did two of them.
Joe Patrice: Yeah, well I mean but that’s the thing. Maybe you just got the ones who are secure in their own reputation. So, we’re dealing with when we talk about these bonus stories, we’re talking about big law behemoths, global entities that are raking in cash and well-known for their international approach. But we still always refer to them by where they’re from and headquartered that is convention in the industry. The ABA Journal does it, we do it, law.com does it. When say — and this is not a firm that we talked about, there was none from West Coast but if a firm headquartered on the West Coast, but with a global presence announces we will often refer to them as West Coast Mainstay or West Coast Behemoth.
Kathryn Rubino: Or like we’ll do like an article that’s like — oh, the bonus numbers have come to the West Coast.
Joe Patrice: We will talk about it that way because everybody knows that’s a global firm but it actually matters where they’re from. In fact, a lot of these firms, especially the West Coast firms, West Coast-based firms are eager for that to be the description, put on them because they want that — the cultural baggage that comes with that. They want to be known as we’re an upstart, go-getter, we aren’t part of the stayed New York establishment, yada, yada with a Midwest roots, you will talk about Midwest-based firms. They are —
Kathryn Rubino: — Cleveland-based, —
Joe Patrice: — right, Cleveland-based jones day. You’ll talk about these firms in these terms and everyone knows they’re global. But it says something usually to their benefit that they have these kind of smaller town roots.
Chris Williams: Maybe it’s — I think it’s the old money understated is the new excellence thing.
Joe Patrice: So, what’s weird is the complaints we’re getting are from fairly old money organizations.
Chris Williams: To be clear, I don’t think it’s been said yet and I can talk about it because nobody cared enough to contact me. We are talking about “magical firms.”
Joe Patrice: Well, we aren’t just talking about them but that is one of them. So, magic circle firms, which are the moniker we use for London-based UK firms.
Kathryn Rubino: Of a certain size.
Joe Patrice: Of a certain size, it’s their —
Kathryn Rubino: A specific number of firms that were included in this magic circle, then there’s a silver circle. There was just no way to categorize large law firms.
Joe Patrice: Yes. It’s the elite of the elite of UK-based law firms.
Chris Williams: Very geometric(ph).
Joe Patrice: And while they are international in scope, with the exception of a I guess Slaughter and May isn’t international. But the point is, while the rest of them are international in scope, they’re referred to as the magic circle firms because everybody knows that’s their tradition, that’s the mindset that they come from et cetera. We started getting from at least one magic circle firm really annoyed and it’s never from lawyers. It’s always from some PR hack, right? Because the lawyers are smart enough to know that everybody talks about it this way. But we started getting people complaining that they’re being called “magic circle” because it suggests that they’re just UK. Which is, I don’t understand who they think is getting that impression by reading a legal website.
Chris Williams: Wait, they know globalization happened, right?
— I mean it was just me?
Joe Patrice: — it’s the opposite. They think that they should exist in a sort of transnational borderless world view now because they are.
But that’s just not how anybody talks about them or has ever talked about these organizations. The clients know that they’re a global law firm, one would assume. Any client that can pay those rates, anyway. Coming out of law school, you know that they’re an international firm based somewhere else because you’ve done your research when you’re going to find work. Nobody doesn’t know what these people are.
Kathryn Rubino: Also, one of the points, I think that not referring to where these firms are based whether it’s a US city that they have their largest office in or it’s international whatever it is, actually does a disservice to folks, especially folks who are younger or just starting out in their careers to understand the differences whether it be in culture, whether it be in the way that sick time is accounted for. Because you know, a California firm is going to have different requirements.
Joe Patrice: They don’t.
Kathryn Rubino: Whatever, they might have a different attitude about it, let’s say that. But there are increasingly small differences between the cultures of firms but they do exist and they are important and where their base may account for some of those differences.
Joe Patrice: Yeah, it’s not so there is a Boston firm, historically, that is all annoyed that they were referred to as Boston-based which is where their biggest office is, and where their headquarters has always been. Though I gather they now have a managing partner in New York and so theoretically maybe it’s changed. But you know, the bulk of their attorneys are Boston-based and everybody knows they’re global. Am Law numbers show that but they are all complaining about the idea that somebody attached them to Boston and look, a part of me understands that as someone who lives in New York. As far as I can understand, Boston’s entire reason for being is having an insecurity complex, but I mean, from sports on down, you know.
Chris Williams: Any listeners from Boston, please hate mail joke — I need to see this fall out. He didn’t even pronounce the H on Boston, you got to be mad or something.
Kathryn Rubino: I mean, I don’t even think he’d be sad about that.
Joe Patrice: I wouldn’t, they give me strength. But yeah, no. Maybe that’s what it is, maybe it’s just Boston has such an inferiority complex that Boston firms feel this way. But like nobody views them and when we refer to them as a Boston firm, we are referring to their culture and history. We’re not talking about them being a shingle that only the doesn’t operate outside of Massachusetts.
Kathryn Rubino: Right.
Joe Patrice: It’s just so unbelievable. But you know, that’s where we are these days. Maybe the market has reached a point where whether it’s — Chris, your globalization point where they all want to be transnational actors and ignore various local environmental laws or something or whether they have deep concerns about being tied to where they’re from for some reason, like embarrassed by it, I don’t know.
Chris Williams: I mean, if I was from London, I don’t know if I would yell that out too, you know?
Joe Patrice: Maybe, I just feel like the London firms would love it because they’re from this like classical old-school head of commerce sort of place. I mean I guess post-Brexit they may not love it. But you know, is a historically — being from London is a lot better than saying you’re from a lot of places.
Chris Williams: Now I’m just imagining Mary Poppins issuing a motion to it, like the sisters.
Joe Patrice: Well, you know, she would never have to worry about word count because if you make supercalifragilisticexpialidocious(ph) one word, you’re going to make the limits.
Kathryn Rubino: Wow.
Joe Patrice: Yeah.
Kathryn Rubino: Well, I mean it’s one reason to go to law school.
Joe Patrice: It is a reason to go to law school because you can be a lawyer.
Kathryn Rubino: Right, right.
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Well, let’s finish up real-quick with a conversation about law firm that didn’t have the best week. Latham & Watkins, they had a holiday party, departmental one. Just the New York Corporate Department had a holiday party, and they got everyone together. It didn’t go great.
Kathryn Rubino: Well, it may or may not have but bunches of people certainly got COVID as a result.
Joe Patrice: At least 10 associates appeared to have come up with COVID. This prompted the firm to cancel all future in-person holiday —
Kathryn Rubino: Which seems prudent.
Joe Patrice: Yeah. A lot of people are irritated with Latham about this. I will say I was of two minds on it. Well, on the one hand, I think Latham did handle this largely correct. The firm is entirely vaccinated, and has a vaccine mandate which not every firm does.
And they should, and good for them on that. So, their logic was everyone is vaccinated, we can go forward with this in-person party.
Kathryn Rubino: I mean I would 100% go to a party in those circumstances.
Joe Patrice: I think that’s true, I would too. And yes, as somebody who has gotten COVID post being fully vaccinated, it does happen. Mercifully, it is less serious when you’re fully vaccinated and hopefully that remains true for everybody who got it at Latham, but it happens. You have to be cognizant that that’s a risk and I think the firm handled it correctly, by telling people to stay at home, getting them tested, canceling future events to make sure it doesn’t happen again.
All of that is prudent, what I did think was not necessarily prudent and something worth discussing is the concept of mandatory fun, which those of us who worked in firms are all aware of mandatory fun. That is when the firm decides to have a party that you don’t want to go to but you have to go to it because your career depends on it. Whether it’s working or hanging out with the team, making connections, networking, whatever it is.
Kathryn Rubino: All of which are real.
Joe Patrice: They are real. They’re not necessarily bad things, I don’t personally think but it is a concept that happens in your life as a lawyer. It’s just one that may not be a good idea right now. Because even though these people are vaccinated, you don’t know their lives, you don’t know who they might be around. They may have young kids, who can’t be vaccinated. They may have immunocompromised friends and family. Putting a situation where they are feeling compelled to go to an event where catching COVID is a possibility is a problem. You don’t want to set that up and to the extent that that’s a possibility, holiday parties are dangerous territory right now. It can very much feel like mandatory fun at a stage where that can be risky.
Kathryn Rubino: Yeah, that makes sense.
Joe Patrice: I cautioned law firms to be aware and I think partners don’t even understand it a lot of times. But be aware that your party may make people who are uncomfortable going to the event feel they have to go and guard against that whether that’s by canceling the party or by being — bending over backward to clarify that people don’t have to go.
Kathryn Rubino: Right, because the pressure doesn’t always come from the top of a department or something like that. All of the time, it’s like a third-year associate who is like to a first year, “Come on, let’s go!”
Joe Patrice: It would absolutely have been me.
Kathryn Rubino: Yeah.
Joe Patrice: Absolutely as a mid-level mentor to younger associates, I was the one saying come with us to this. There’s a partner who is going out drinking right now, let’s go with them. So that you can get some face time and whatever. I encourage that and I think that was the right call at the time. But time would have been the problem. Yeah, I would have been the problem under these circumstances and firms need to understand that that’s coming from well well-meaning mid-levels too and they need to police it.
Kathryn Rubino: Yeah.
Joe Patrice: Well, let’s hear from our friends at Lexicon.
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Joe Patrice: All right folks, that brings us to the end of another show. You should be reading Above the Law so you can see these stories before they happen. Well, not before they happen.
Kathryn Rubino: As they happen.
Chris Williams: We had a new iPhone update; we have pre-cognition now.
Joe Patrice: We are not precogs, but you can read them as they happen, as well as read other stories beyond the ones that we talk about here. You should be getting these shows delivered to you automatically by subscribing to the show through the podcast service of your choice. You should give reviews, write something, gives stars, writing something is even better because it shows that you’re engaged enough to take the time to say that host has the best voice or whatever it is.
Kathryn Rubino: Who do you think they’re talking about that Joe?
Joe Patrice: I think we know who we’re talking about.
Kathryn Rubino: Not you.
Chris Williams: And I’ll take this compliment toward as an opportunity to say, if you are the PR head of a multinational law firm, please complain to me.
Whatever my name is on the email. I think it’s [email protected] I would love to give a really snarky take on your insert name x-firm from me to yours.
Joe Patrice: I think we all love that. So, you should also be listening to the jabot which is Kathryn’s other podcast, which is Catherine’s other podcasts. I’m a guess on the Legal Tech Week Journalist Roundtable. You should check out the other shows by the Legal Talk Network. You should be following us on social media I’m at @josephpatrice, she’s @kathryn1, the numeral one. He is @rightsforrent and I think that’s everything.
Kathryn Rubino: Peace.
Joe Patrice: See you all later.
Chris Williams: Have a good one.
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Podcast transcription by Tech-Synergy.com