As the year winds down, folks seem a little extra agitated. A judge called her colleagues names and got booted from the bench. A partner bailed on his firm rather than get the scientifically proven vaccine. Meanwhile the legal press jumped on news of another round of salary raises as an extra dose of year-end drama that didn’t actually happen. 2021 is bad enough, folks… don’t try to make it any extra.
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Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer, I’m Joe Patrice.
Kathryn Rubino: Hi, Joe.
Joe Patrice: Hi.
Kathryn Rubino: How are you doing?
Joe Patrice: I’m good. That’s Kathryn Rubino from Above the Law. We’re here as usual to discuss the week’s events in law. From our perch at Above the Law.
Kathryn Rubino: Yeah, that’s where we are. We’re Above the law.
Joe Patrice: Right. Yeah, I guess that’s fair. Yeah, no, so I was just giving them a rundown of the show. I know that our loyal listeners know that’s how the show operates but you know, some people may be here for the first time. That’s why I was doing that.
Kathryn Rubino: That’s fair. I feel like you’re just trying to surprise me with some sort of a sound effect or something. I’m like — I’m apprehensive and on the edge of my seat thinking that there’s about to be a sound effect in my ear because he wanted to talk maybe about what you did this weekend, or I don’t know some — I’m sure it was small talk.
Joe Patrice: I mean sure. Yeah. I mean what did you do this weekend?
Kathryn Rubino: You’re just going to start playing the sound effects as soon as I talk aren’t you?
Joe Patrice: I don’t know, seriously. What did you — tell us all what you did this weekend so we can get that out of the way and then get it in the stories.
Kathryn Rubino: I actually went to —
Joe Patrice: Small talk.
Kathryn Rubino: I really hate you. Yeah, how was your weekend Joe?
Joe Patrice: I don’t understand — like you were about to talk.
Kathryn Rubino: That is small talk. That’s the beginning of small talk. How was your weekend? How was my weekend etcetera, etcetera.
Joe Patrice: Great. And I had asked, and then you heard the sound. So what did you do?
Kathryn Rubino: I actually went to the movies. I went to see the new Spider Man movie.
Joe Patrice: Good, you and everybody else it seems.
Kathryn Rubino: Yeah, you know it’s a great way to avoid Omicron. That’s what I found.
Joe Patrice: To go into a movie theater? Yeah.
Kathryn Rubino: Well, I mean, I was at least I was masked.
Joe Patrice: Yeah, I guess that’s fair.
Kathryn Rubino: Yeah. No, I mean, it’s a great movie. I’ve thoroughly enjoyed it. I feel like I’ve been waiting for it for a while. And yeah, I have not been disappointed by seeing a Marvel movie yet this year, all like 75 of them.
Joe Patrice: I don’t think there’s been 75 this year.
Kathryn Rubino: I mean obviously they haven’t 75.
Joe Patrice: I think this was actually a lowly — a low year in the annals of ones they’ve done.
Kathryn Rubino: That’s not true, because they had all the ones from 2020 that they also released. Right?
Joe Patrice: That makes it three, doesn’t it?
Kathryn Rubino: That was Black Widow, Shang-Chi, it was the Eternals.
Joe Patrice: I forgot about the Eternals. So did everybody else. But yeah. No, so okay. Fair enough.
Kathryn Rubino: And Spider Man. And the next one’s in like two months.
Joe Patrice: Yeah. No, yeah, I mean they’re printing money down there.
Kathryn Rubino: Good for them, I suppose. How was your weekend? Did you do anything fun?
Joe Patrice: Well, no. I developed a really painful thing and I just got back from the hospital for it and everything.
Kathryn Rubino: That sounds terrible.
Joe Patrice: Not great. Yeah, no, but apparently, it’s an infection. I need to take some antibiotics and everything.
Kathryn Rubino: Okay. It’s antibiotics, not like viral?
Joe Patrice: Well and that’s the thing, obviously in these times what scares you when you wake up in pain and coughing and whatever it is that you have something worse. But tests said that was untrue. And what I actually have is, you know, your standard thing that we developed antibiotics to kill years ago so.
Kathryn Rubino: That’s fair. I also spent a fair portion of my weekend trying to track down at home tests for COVID.
Joe Patrice: Well I mean it’s worth just having at this point.
Kathryn Rubino: Well, yes. But also, you know, as I am had to have holiday plans coming up, and I have folks visiting me and, you know, I just felt like it was worth it to know whether or not you know, going to the movies was a really terrible idea.
Joe Patrice: Right, right. Right, right. No, I mean, yeah, you know, you don’t want to run a hoard on them like people did on toilet paper, but it is worth having a couple around the house always.
Kathryn Rubino: I wasn’t trying to hoard; I was trying to take one. I was trying to take a test but I wound up having to go to multiple different locations trying to track down one test but you know. All appears to be well so that’s easy.
Joe Patrice: So you got one?
Kathryn Rubino: Yeah.
Joe Patrice: Yeah, well, good.
Kathryn Rubino: Went to like six different places. Got one. It seems fair, right?
Joe Patrice: No, it does seem as though and maybe this is this is dangerous one. I mean, we’re now on the border of what small talk into like real conversation.
Kathryn Rubino: Our life is we live in the border of small talk to real conversation. That’s like Above the Law. That’s very much our subheading.
Joe Patrice: So anyway, I was just going to say it does seem for those folks who are not New York may not get this but it does feel as though everybody has COVID right now.
Kathryn Rubino: I think anybody on Tik-Tok has seen probably those in New York.
Joe Patrice: Basically ever since Santa Con the week before, which is a horrible thing that occasionally happens.
Kathryn Rubino: It was terrible before we lived in a pandemic.
Joe Patrice: Right. It happens in New York every year. It is a scourge upon the planet but this year–
Kathryn Rubino: So my sister lives in Texas and I was trying to explain to her why everyone in New York has it and she had never heard of Santa Con.
Joe Patrice: What a blessed existence.
Kathryn Rubino: And I don’t know if maybe she just lives like in a suburb somewhere because is it just — it’s not just New York. They happen in other big cities too, right?
Joe Patrice: I mean it’s a New York phenomenon. It may have spread to some other cities but obviously Hoboken has theirs but like.
Kathryn Rubino: Right, but that’s just New York light.
Joe Patrice: Yeah.
Kathryn Rubino: Yeah. Well, anyway, I tried to explain to my sister what it was and she was like, so people do they act like Santa Claus? I was like no, they just wear like Christmas garb and drink and throw up in the streets. It’s like amateur hour. Reminds me a lot of like St. Patrick’s Day.
Joe Patrice: Yeah. Amateur drinking day. Yeah, it’s bad. Anyway it did a good deal to spread viruses amongst servers which then got spread around the week after. I know multiple people who are fully vaccinated who are now — including one who’s boostered even who now are positive. It’s bad. Mercifully because they’re vaccinated they’re not deathly ill. But you know, it seems to be everywhere right now. Obviously, we talked about Latham causing an outbreak and then canceling all their parties after, Kirkland cancelled their on like 24-hour notice.
Kathryn Rubino: Wow.
Joe Patrice: 48 I think but same diff. Yeah. And it was the right call because right now is we’re at least as far as case spread, we’re back to where we started.
Kathryn Rubino: For the vaccinated it’s not that bad.
Joe Patrice: Mercifully not nearly as deadly because of vaccines. But yeah. Anyway. Cool. Well, on that fairly somber note, we will end the small talk portion of the show.
Kathryn Rubino: It’s a lot. That noise is loud.
Joe Patrice: Yeah, I think we bring it down a bit and post.
Kathryn Rubino: Let’s get loud. Okay. Anyway, what do you have for us to talk about today?
Joe Patrice: You have a bunch of things for us to talk about was the actual thing that happens.
Kathryn Rubino: Just tell me which one you want us to talk about first.
Joe Patrice: There’s a judge who got disciplined.
Kathryn Rubino: She sure did. She’s actually no longer on the bench is was the resolution of this. Is this an Alabama Judge Nakita Blocton in Jefferson County, Alabama. She was removed from the court after they found that she engaged in a pattern of abuse of her staff, attorneys and litigants. She did a bunch of things. But the sort of big put it in a headline moment is that she called a judge a fat bitch. She called a different judge an Uncle Tom. She calls an employee a Heffer. Not great. Not great, you guys. But she also created different social media aliases to communicate with litigants that were appearing before her.
Joe Patrice: You’re not supposed to do that.
Kathryn Rubino: I mean, that’s like — listen the name calling is obviously terrible, and reason for discipline. But that’s — this is trying to affect the outcome of cases before her over social media. Not great. She also demanded some of her some employee’s computer login information and asked, told or demanded that employees show her their personal telephones so that she could monitor any information about the ethics investigation. And she also, there was just some slowness issues in her court to which frankly seem minor compared to some of the big things that were that on the top of the thing.
Joe Patrice: The irony, of course is that the being slow is probably what got people to take action.
Kathryn Rubino: I mean calling another judge a series of — calling multiple different judges, multiple different names, probably also got some folks attention.
Joe Patrice: And yet Lawrence Van Dyke is still on the ninth circuit.
Kathryn Rubino: There is difference when you put it in an opinion, there is a sort of veneer.
Joe Patrice: You would think.
Kathryn Rubino: There’s a veneer of respectability or that it is part of the judicial process when you put it into an opinion as opposed to gossip after the fact.
Joe Patrice: Yeah, well, for me that makes — that would seem to make it worse.
Kathryn Rubino: Perhaps, but it’s just — there’s a distinction I guess is what I’m arguing more than anything.
Joe Patrice: Yeah. Well, so that was one of your big stories of the week. So yeah.
Kathryn Rubino: Yeah. Well people enjoy attorney misconduct stories generally I find but I think in particular judicial misconduct ones, I think because you have that — you still have that notion of sober as a judge. That the judges should be of a certain decorum. And when people do not act that way, it gets a lot of attention.
Joe Patrice: Yeah, no lawyers are supposed to be a little bit more professional.
Kathryn Rubino: Yeah, I mean that’s part of why they went to law school.
Joe Patrice: It is why they went to law school. That is exactly what I was thinking. They went there to be lawyers
Kathryn Rubino: You know why they didn’t go there?
Joe Patrice: They didn’t go there to be —
Kathryn Rubino: They didn’t want to be an accountant.
Joe Patrice: Although in fairness, accountants, as far as I can tell, also have a level of professionalism they’re supposed to. I think you would be fired as an accountant if you did some of this stuff too.
Kathryn Rubino: That is also true.
Joe Patrice: So maybe this isn’t the best analogy which is why let’s hear from our friends from Lexicon, right?
Kathryn Rubino: Wow.
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Kathryn Rubino: You got me friend.
Joe Patrice: Yeah, we will continue that a little bit later, but it will now hang over the rest of the conversation. But that’s coming up. Do you want to talk about your other story now?
Kathryn Rubino: The other big story that I wrote about was the second time that I wrote a similar story, which is often you know, lots of firms have vaccine mandates because we live in a pandemic, they’re able to as an employer, and you know, many places have found that it is a prudent course of action. That has resulted in a relatively few but occasionally folks will quit over the fact that they have to get vaccinated. And sometimes those who quit over vaccine mandates send out really entertaining slash awful farewell e-mails.
Joe Patrice: Do they know?
Kathryn Rubino: Yeah, yeah. So it’s the West Coast firm Lane Powell and one of their now former partners, David Warner quit over the vaccine mandate. It was a fun little e-mail, saying that, you know, saying that it was his right to make whatever decisions you probably hate me going on a bit of a screed about it, then ended the e-mail with some insults towards transgender folk and or non-binary folk and the phrase, let’s go Brandon, which mean — it’s not addressed to a person named Brandon at the firm.
Joe Patrice: I feel like if I were Brandon right now, I would — like in this cultural moment, I would feel like I was getting so much love and support, you know? Everybody seems to have their back these days.
Kathryn Rubino: Well, not everyone. A very, very specific —
Joe Patrice: Group of people have their back. But what got me about this was becoming a partner is a fairly big deal. Even, obviously this isn’t the biggest firm in the world. But even at small places. It’s —
Kathryn Rubino: Me, I think there’s over 200 attorneys.
Joe Patrice: Yeah, it’s a career brass ring situation. And to give that up simply because you have decided to ignore, you know all of the science is fascinating to me. Like the level of brain break you have to have to say, I’ve decided this is not worth the whatever, 600 grand I’d make a year or whatever it would be at a firm of that size. I don’t know their PPE.
Kathryn Rubino: Sure, sure. And he has opened his own firm, theoretically is still working, who knows how lucrative any of these things are, but you know, you can lead a horse to water, can’t get them all to drink. And I think that, you know, firms should still be commended for having vaccine mandates and for doing their best to get as many people as possible over that line. But you’re still going to have some outliers, and I hope they’re just outliers, I guess.
Joe Patrice: Yeah, and this is going to be the what’s going to carry into the next — into the next few months as we come through what is inevitably going to be a holiday wave. We’re going to find out.
Kathryn Rubino: We’re already in the middle of it in all reality.
Joe Patrice: Right. And we’re going to find out who is naughty or nice really on particular question.
Kathryn Rubino: It’s like your Elf on the Shelf. It’s like the vaccine in your routine.
Joe Patrice: That’s wow.
Kathryn Rubino: I don’t know.
Joe Patrice: You did not think about this first did you? Yeah, it showed. Yeah, we’re going to find out some issues. I think there’s going to be more confrontations like this between partnerships and outlier, folks. I think there’s going to be more associates who get canned over it. It’s going to be interesting, and where they all end up is going to be kind of sad, I think on the back end, but you know, whatever.
Kathryn Rubino: It is interesting too, because we’re seeing also a different set of responses to Omicron from different states. And, you know, that kind of thing in New York.
There’s a mandate that if you’re not vaccinated, you have to wear a mask indoors or you know, everyone has to do it. So there’s a lot of firms that are saying, okay, even if we can’t — even if we’re not going to mandate you wearing a mask, you can’t come into the office at all.
Joe Patrice: Right. And that raises concerns that we’re going to have a situation where the people who defect from the system are somewhat rewarded for it. Hopefully, that’s not how that ends.
Kathryn Rubino: So that’s interesting because I think there’s a bit of — there’s a discussion whether or not it’s really rewarding folks. Because on the one hand people would like the ability to stay home and working, but particularly in big law firms, I think that long term, especially if it’s not the kind of firm where everyone is encouraged to spend multiple days a week at home, it’s probably a career detriment. If you’re the only one on the team that can’t come into the office. Because I mean, first of all, you are very much broadcasting at that point that you are unvaccinated. And as I’ve written multiple times, I questioned someone’s legal reasoning if you can’t get your reasoning skills up to par enough to get vaccinated at this point. So I think that it tells on you. It reflects on you and I think in a real way, and whether or not I’m super comfortable as a partner giving an associate work who I know is unvaccinated. Whether or not it’s because they’re unvaccinated or because they’re not in the office, they’re not there, they can’t get the good assignments, they’re not going to bill as many hours as a result. You know, I think having the ability to stay at home is certainly a perk that everyone really should have at this point. But I’m not sure that they’re necessarily being rewarded.
Joe Patrice: That’s fair. It can very much become a career detriment I think and put them in a bad position like this guy who’s now left a partnership thinking he’s going to do a solo thing. But I mean, that’s a rough road. Although we know a lot of people who can do it, but you know, if you’re not used to it, it could go bad. And then you’re looking at yourself getting yourself a career change, even though you went to law school.
Kathryn Rubino: See, okay. Okay.
Joe Patrice: Even though you went to law school to be a lawyer.
Kathryn Rubino: Not an accountant.
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Kathryn Rubino: There you go.
Joe Patrice: It might not be something he’d have thought of yet, because he’s relied on a firm.
Kathryn Rubino: So you’re just giving career advice now at this point to be vaccinated.
Joe Patrice: Yeah.
Kathryn Rubino: That’s fair.
Joe Patrice: This is what we do. We’re helpful. So we did talk last week about salary raises and we talked about bonuses and compensation I should say. You know what, we did not talk about? Salary increases. You know why we didn’t talk about that?
Kathryn Rubino: Because they already happened earlier in the year.
Joe Patrice: Yeah. And did any happen last week?
Kathryn Rubino: They did not.
Joe Patrice: They did not. See it’s interesting you say that because so many other legal publications said that they did but they didn’t did they?
Kathryn Rubino: Yeah, no. It was kind of a weird slash fun moment behind the scenes at Above the Law for those who maybe weren’t following. Last week Sidley announced their bonuses. Yay. Normal. Very normal. Matching of the market rate. Nothing crazy there. But they also I believe on page two of the memo.
Joe Patrice: Now I’m going to defend some of our colleagues in the media on this because we have been at this a while, you and I. And we have worked for Above the Law, which is very, very focused and kind of a leader on covering compensation.
Kathryn Rubino: Correct.
Joe Patrice: Not everyone does that though some people are trying to like stay on top of it this year. We’ve seen some weird things over the years, some weird phrasings. And so when we see them, we kind of know what that means. In ways where if you saw it cold, it may not have been as obvious. Let’s put it that way.
Kathryn Rubino: Maybe. But one — on page two of the memo, what they noted was that in January, that everyone — basically what they said is that everyone is going to move up a class here, right?
Joe Patrice: The class of 2020 for instance, makes X and you know, their new salary will be Y.
Kathryn Rubino: Correct.
Joe Patrice: Which folks read as, those people are getting a raise, which in a sense is true.
Kathryn Rubino: Right. But when we talk about big law raises are coming. It’s not that an individual salary has gone up because the weird thing about big law is that everybody and if you’re assuming you’re in good standing. Everyone gets a promotion every year, fourth years become fifth years, they get a raise as a result in a very specific prescribed amount.
Joe Patrice: Right. And this was where the chart was weird. Because if the chart was written in the way of saying, first years make X, next year they’ll make Y, that would be a what we would consider a big law raise.
First years currently make X, next year first years will make Y. But it didn’t say that. It said class of 2020 makes X and then class of 2020 will make Y. That’s not because of a raise, that’s because the class of 2020 will cease to be their first year group and become second years.
Kathryn Rubino: They’re now class of 2021 roaming the halls.
Joe Patrice: And so I understand how when you choose to convey the information this way, which they did. I understand how people missed it.
Kathryn Rubino: See, I think you’re being entirely too —
Joe Patrice: Fair?
Kathryn Rubino: No. I think you should be more fair to the firm’s. Tons of firms refer to it that way. I think having printed quite a few of these charts recently, more firms refer to it as class of 2020 versus first years. More firms are more likely to say the class year than then the year that they are.
Joe Patrice: True for bonuses, for sure.
Kathryn Rubino: This is all part of the same bonus memo. I’ve seen it written the same way in when they rarely, but when there are, you know, overall grid changes. You know, and overall raises. But the point is that it should be pretty — I thought it was very obvious looking at obviously how we reported it initially. Was that that these were not raises, there’s just like, yeah, of course everybody in the new year will move up a class year because seasons change, right? Like, everyone does this. But a number of folks reported it as changes to the compensation grid. There was I will say one minor change to the grid. They added ninth years to the grid. So before that their grid had only gone up to 8th years at Sidley, and it wasn’t like class of 2013 plus where some firms have kind of catch everybody in that same band. It was just only that last class year and everything else was sort of off the grid.
Joe Patrice: Right. And this is a phenomenon that some firms have, an off the grid phenomenon, which basically, as opposed to like the classical model is that you work for eight years, and then you’re either a partner or you aren’t and go into some like special counsel or senior attorney or some other job title. And then we started entering a world a few years ago where partnership — equity partnership tracks got longer, pushed out more to like 9 to 10 years of slugging it out as an associate. And when that happened, there wasn’t you know, a concomitant move to let’s now have a scale for 9th years, have a scale for 10th years. Those folks just kind of became zombie associates that exist in this liminal state between associate and partner where they negotiate more or less separately what their pay is. And they aren’t called special counsel and given the given the prestige that went along with that or move to partner. They just live as associate and get paid something quote off the grid. And that just means it’s no longer part of that lockstep. What Sidley appears to have done is create a ninth year that is lockstep, which is nice, but it’s also, you know, take the good with the bad that is also indicative of the fact that there are now sufficient numbers of people in their ninth year that haven’t been moved to partner that are still trying to work there in a way where like there was an era where eighth year was all you had to do.
Kathryn Rubino: Right. But just having them putting them on the grid hasn’t changed that reality. And I think for the folks that are — the folks that are in the middle of it, who are in their seventh, eighth, ninth years are well aware of how many folks there still are, you know, at that level at the firm. And so I don’t think it’s a big change.
Joe Patrice: Yeah, no. It’s a change to the extent that in the past, it suggests to me that in the past, the firm felt comfortable having a handful of one offs who they negotiated independent stuff with. They now are saying, no, we have a lot of people in this class and it’s deserving of a separate figure. That’s all I’m saying.
Kathryn Rubino: I’m not sure. I’m not sure that that is accurate as much as it just says that maybe we anticipate in the near future that folks will be there. We want to let them know that it’s okay. There’s a lot of stuff written that there’s less traditional paths to big law partnership these days because of the sort of burnout a lot of people are feeling because of the pandemic that extending, you know, the amount of time that you’re potentially spending in the associate ranks is not a problem. And in fact they’re comfortable with folks staying. It used to be, you know, up and out. If you don’t make partnership then you’re out of the firm and this is perhaps the firm’s way of saying no, it’s fine. You’re fine.
Joe Patrice: That’s fair. That’s fair. That’s fair.
Kathryn Rubino: But the other thing I was going to say like how you’re being too generous I think in your interpretation.
The scale still starts at the same number, right? They’re still first years who are making 205 whether or not they added something to the back end of it. So the scale remains the same. And I think that it should have been pretty clear from the jump.
Joe Patrice: If you looked at it, you wouldn’t know it started there. You would assume it started at the one jump up. Because of the way it’s written.
Kathryn Rubino: Only if you ever assumed that there was nobody from the class of 2021 worked at the firm, because class of 2021 is not on the memo is the issue.
Joe Patrice: Okay. The point though is that they — well actually if it’s not on there, that also proves like how it was somewhat misleading how it was written. Because it makes it seem like everyone is — like those are the eight classes as supposed to nine classes.
Kathryn Rubino: I will also say sort of as a heads up, I think if any firm is going to increase the overall scale, they’re not going to do what on page two of a memo.
Joe Patrice: You would think they wouldn’t slow play that.
Kathryn Rubino: But that is not the moment to wait for the river to drop your hand.
Joe Patrice: Nice. So let’s — well I mean, I guess it would be to drop your hand but I see what you mean. To make the bold move. Yeah, no, I understood it.
Kathryn Rubino: It’s probably a whole separate memo. It’s probably not page one. Here’s your completely market bonus. And also here’s this crazy thing we’re doing. That’s probably what they lead with this all I’m saying.
Joe Patrice: Right. I agree. So thanks, everybody for listening. You should be subscribed to the show so you get new episodes when they come down. You should be giving reviews to the shows. You should give it stars. You know, write some reviews that shows engagement that all helps more people find the show. You should be listening to other shows. Kathryn’s the host of the Jabot. I’m panelist on the Legal Tech Week Journalists roundtable. We also have several shows that we are not on, on the Legal Talk Network that you can be checking out you should read Above the Law and other stories before they make it on to the show. You should be following us on social media. I’m @JosephPatrice. She’s @kahtyrn1, the numeral one. You should be checking out Noda powered by M&T Bank and Lexicon who sponsored the show and I think that’s everything and —
Kathryn Rubino: Peace.
Joe Patrice: Yeah. We’ll talk next week.
Podcast transcription by Tech-Synergy.com