On the latest episode of Thinking Like A Lawyer, Kathryn and Chris ponder the need for a rule against Confederate flags in courtrooms in the UNITED STATES OF AMERICA the year of our Lord 2023. Speaking of bold stances on things that should be obvious, the American Bar Association would really like a Supreme Court ethics rule, but we know that’s not happening. Plus if you want your full bonus this year at Perkins Coie, you’re going to have to bill more hours. Which is a crappy move, but still better than the layoffs slow-moving through Biglaw.
Kathryn Rubino: Hello and welcome.
Chris Williams: Hello.
Kathryn Rubino: Hey. See, it seems much more casual and friendly when you don’t just launch into a monologue when you start the podcast, doesn’t it?
Chris Williams: I like it.
Kathryn Rubino: I’m Kathryn Rubino. I’m one of your host for the Thinking Like A Lawyer podcast and a senior editor at Above the Law. Today, I am joined by Chris Williams, also of Above the Law. Hi, Chris.
Chris Williams: See, that’s the point of having a script, it’s much easier to just –
Kathryn Rubino: To just read it. We are not joined by Joe Patrice, our normal compatriot on the podcast. He is at some legal tech conference, so I’m sure he is busy thinking deep thoughts about ChatGPT.
Chris Williams: Are you in control of the sound board this week?
Kathryn Rubino: No. There will be no sound boarding this week. It is just one of those things we’ll have to learn to live without. We’ll have to do the older fashioned, less high tech version, which is a great segue. We can start with our small talk. No sound effect. No sound effect for any of that. Small talk. How was your weekend, Chris?
Chris Williams: It was dangerous. I found a place that’s selling delicious Mai Tais for 550 a pop and I found two Le Creuset Dutch Ovens for $66.
Kathryn Rubino: That’s very impressive.
Chris Williams: And these are not used. These are not second hand. These are like retail dead stock Le Creuset. Whatever. I’m not French, but I know a good deal when I see one. I’m buying them shits ASAP just to boil water in.
Kathryn Rubino: I will tell you, I have baked a fair amount of bread in my Le Creuset, and it comes out my smaller one, it comes out. It’s like a perfect little size for a nice little country loaf situation.
Chris Williams: Let me clarify. These were the deep dish ones.
Kathryn Rubino: Those are nice.
Chris Williams: Full size Dutch oven $66.
Kathryn Rubino: That’s very impressive. They’re very heavy, though.
Chris Williams: You better be. But no, this would either be like a small family of four or a Chris for Thanksgiving. I’m very proud of this.
Kathryn Rubino: Did you watch any of the sporting event? I mean, there’s a pretty famous sporting event this weekend. Did you catch any of the Super Bowl?
Chris Williams: I don’t know what you’re talking about, but Rihanna’s pregnant.
Kathryn Rubino: Rihanna is pregnant?
Chris Williams: Again? Somebody said he really put the ASAP and ASAP Rocky.
Kathryn Rubino: I did see that. It was funny. I also saw that as of January, she was giving interviews like, we’d like to get pregnant again right away. blah, blah, blah. It was like, Flash, already was pregnant at that point. She was planting the seeds early so that people would be aware that this was about to be a pretty big reveal. But it was the first time that a pregnant person appeared on the half time show of the Super Bowl. That was pretty nice.
Chris Williams: She also wasn’t the only one planting seeds early.
Kathryn Rubino: Okay.
Chris Williams: How about you?
Kathryn Rubino: I watched the Super Bowl. There were several debates about what a catch means in the NFL.
Chris Williams: It depends on the definition of what is.
Kathryn Rubino: It depends on which refs are doing it, I think. But there were some controversial calls at the end. Nothing too crazy, but congratulations to Kansas City. They wound up pulling it out in the most anticlimatic close game that I can remember.
Chris Williams: Did you enjoy the game, though?
Kathryn Rubino: It was fun. My brother-in-law is an Eagles fan, so by default, I think my nieces root for the Eagles despite the fact that my family is from New York. It’s a little bit painful in that respect. But I don’t want my family to be unhappy. But it all works out at the end.
Chris Williams: I’m still shocked. I didn’t see any pictures of the Ritz-Carlton being destroyed like last time. I feel ashamed of my Philly brethren. You got to do better.
Kathryn Rubino: There was a lot of alien talk that might have clouded some of the normal Super Bowl coverage.
Chris Williams: That makes sense. Even the extraterrestrials wanted the Eagles to win.
Kathryn Rubino: Listen, news dumping in the middle of the Super Bowl the fact that we have unidentified flying objects that have no known propulsion system was certainly one way — not what I thought was going to happen.
All right, so that was small talk. Small talk. Chris, you wrote a bunch about the ABA this week. What’s the hot goss from the American Bar Association?
Chris Williams: The American Bar Association started off very controversial. They decided that courtrooms shouldn’t have — how should I word this? I don’t want offend anybody, loser memorabilia. They decided that confederate flags probably shouldn’t be in courtrooms for fear that they are like prejudicial to the jury, which I get because it’s the flag of one of foreign country, the Confederate States of America. Then they leave the states at one point like they’re a whole another governing body.
Kathryn Rubino: It does seem particularly confusing to have secessionists represented in our courtrooms. You lost. You lost. Put it away.
Chris Williams: You lost. I’m surprised. I got a bunch of anchor emails about it. I’m surprised there were no emails saying we should have Union Jack’s too. You’re on the wrong side of history. It’s okay.
Kathryn Rubino: First of all, not surprised that you got some heat mail for it. There are some awful people in this world, in this country. The ABA made this proclamation, but it’s not like they can unilaterally pull the flags out of courtrooms. What impact does the ABA statement even have?
Chris Williams: I guess it’s more of a — this is like the super ego of the legal profession speaking. You can do what you want, but if you want to keep up appearances, you probably shouldn’t have confederate army flags up in the court of law, especially if there’s like a lynching case or something, which is the case with, say, and I walk through instances where that could be a problem, where, like, say, I’m out Arbory lynching Georgia, one of the formerly confederate states. Like, if they had flags up during that time, during that trial, that would be obviously an issue, especially when the defense for the lynchers they were looking for, they described it as bubble types. There was a point where there were 15 out of the 16 prospective jury members were white. The judge was like, this is probably prejudicial and the defense counsel said, this might not be fair. We need to have more country bumpkin types. Country bumpkin types were not the word that they used. But I can imagine the scenario, given that happened, where it was like, oh, this isn’t fair. We might need to have some confederate memorabilia. Maybe there should be, like, a knife decorative noose in the corner. The things that didn’t really go with the good old boys who were mad that the south didn’t rise to the occasion.
Kathryn Rubino: It is wild, though, that we do still have confederate flags in courtrooms in this country. As you point out, they are very much the losers of the Civil War. But here we are.
Chris Williams: The thing that gets me is people like, oh, no, it’s not about racism.
Kathryn Rubino: It’s not about racism.
Chris Williams: No, but here’s my thing. It’s like they’re like, no, it’s not about racism. It’s about history and tradition. And my thing is the confederacy was only a thing for four years. If you want to talk about something that is Southern, that has a long history and tradition, what about sweet tea? Sweet tea has been around and is more likely –
Kathryn Rubino: Let’s get rid of the flags and let’s serve sweet tea in court. I can make that work. I think that’d be fine.
Chris Williams: And much like the confederate flags, the sweet tea also about slavery because you have to remember, at the time, sugar was a cash crop to be able to afford to just dump that much sugar and tea was a flex and guess who was able to afford to put that much sugar?
Kathryn Rubino: Lots of people who owned people. People owning people.
Chris Williams: And I’m also just generally suspicious to like seven hospitality, because I’m thinking to myself, like, the people that would have had to be hospitable or so they would have gotten beaten slaves. There are so many Southern traditions that are rooted in slavery. To just say, oh, this is about tradition, or this is about heritage, it bypasses the point, even if it is, that heritage isn’t inherently colored by owning other people. It doesn’t have to be the case. Like, everybody owned slaves, enough of them did. And then it’s like, okay, what about the black people that own slaves? Sure, minority, there are black conservatives, things like that happen. That was a bad point. But you get my point. There are the minority of people.
Kathryn Rubino: Very much so. Very much so.
It doesn’t seem wild that they would come up out and say, let’s get rid of this flag flying over the courtroom currently right in the year of our Lord 2023. But that’s not the only sort of –
Chris Williams: It’s not even our country’s flag.
Kathryn Rubino: It’s not. But my guess is also that Union States do not have. There are not places that were part of the Union that currently have that flag flying. That’s probably part of it, too.
Chris Williams: I don’t know. After the uptick, I saw like, clan member. That’s another thing about the confederate flag. You still see them at clan rally, like they’re out here.
Kathryn Rubino: Sure.
Chris Williams: In the Northern states, what I’m saying.
Kathryn Rubino: I would still think that they’re probably not in the courtrooms there. I think that there is a — listen, we also have lots of migration in the country. There are plenty of people who bring stuff up to the north and vice versa. But I would certainly hope I don’t know if there was any sort of a list of the ABA compiled of places where there were confederate flags, but my guess is that they are predominantly in Southern states.
Chris Williams: Of course, northerners have the decency to keep their confederate flags and their homes.
Kathryn Rubino: Behind closed doors.
Chris Williams: We’re supposed to be.
Kathryn Rubino: It’s a polite kind of racism, really. But that wasn’t the only bold take that the ABA had out of their most recent meeting. I think that you also wrote about their take on the Supreme Court.
Chris Williams: Yeah. Apparently, they think that the highest court of our nation should also be subject to rules, which is wild, which is apparently controversial. It’s like, oh, my God. I’m just imagine if any other branch was like, the president was like, I don’t need to actually know Trump. But no, but there’s a general understanding that part of what it means to be to live in the rule of laws, that everyone is subject to some form of agreed upon ethics. Of course, it’s not like a legal thing. Code of ethics is not the same as them not being accountable to any laws whatsoever. But there’s a general understanding like all the other branches do — all the other smaller courts do this. And I’d say smaller courts like mom-and-pop courts. Just every other one that isn’t –
Kathryn Rubino: Listen, what Chris is talking about is that there is a federal code of ethics for the federal judiciary. However, the Supreme Court is not bound by that code of ethics and, in fact, has had a ton of ethics controversies over the last — for the history of the court, but in particular in the last five or so years. It’s really sort of heated up, particularly with the antics, I think is the word I’m going to settle on of Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. She’s an attorney and actually does a ton of advocacy work for right wing politics and has been active in a lot of political causes that windup before the Supreme Court, notably. I think I’ve called her the Forrest Gump of January 6 because in every version of the sum story of what happened post January 6 or post 2020 election, more accurately, she was emailing legislators. She was telling people to hold the faith. She was all over the effort to reinstate Donald Trump back into the presidency, and unsuccessfully, fortunately. But despite that, Clarence Thomas still ruled on cases related to the January 6 Congressional Committee and shows no signs of stopping. That was just the most blatant example that has gotten a ton of attention. But there are certainly ethics dilemmas that are not being addressed here.
Chris Williams: I just imagined some point in history where there’s a powerful spouse’s edition of historical figures in American politics, and it’s going to be like Hillary Clinton and Bill Clinton and Clarence Thomas and Kenny Thomas next to each other.
Kathryn Rubino: I mean, there’s a pretty good argument that we should. I’m hopeful that we’re still discussing it that this is the sort of thing. We’re still gets our ire up in years to come.
Chris Williams: Well, the sound effects aren’t working.
Kathryn Rubino: We can pretend.
Chris Williams: We could pretend.
Kathryn Rubino: Bring, bring, bring, bring. Have you heard about the whole thing about how kids nowadays don’t use their hand to simulate a telephone the same way that Gen X used to? For Gen X, you see, like you’re pointer finger and your pinky to be like, that’s the telephone. Now they just hold it because it’s like a phone is a brick in their minds.
Chris Williams: That’s actually fascinating, and it makes sense.
Kathryn Rubino: Well, if you stop thinking about telephones in general, it might be because you need a service for someone to take care of the –
Chris Williams: Like a virtual receptionist.
Kathryn Rubino: That’s what I was going with.
Chris Williams: All right, so let’s hear from our friends from Posh.
Female: As a lawyer, ever wish you could be in two places at once? You could take a call when you’re in court, capture a lead during a meeting. That’s where Posh comes in. We’re live virtual receptionists who answer and transfer your calls so you never miss an opportunity. And the Posh app lets you control when your receptionist steps in. So if you can’t answer, Posh can. And if you’ve got it, Posh is just a tap away. With Posh, you can save as much as 40% off your current service provider’s rate. Start your free trial today at posh.com.
Sharon Nelson: As a lawyer, keeping up with developments in information security, cyber threats, and e-discovery is a never ending process. Fortunately, the Digital Detectives podcast does the hard work for you. I’m Sharon Nelson, and together with John Simek, we bring on industry experts to discuss the latest tech developments that help keep your data secure. Only on the Digital Detectives podcast.
Kathryn Rubino: Okay. I think our other big set of stories this past week have to do with big law. I think every other week, basically, we wind up with some version of big law cost cutting as a major story. The most recent one comes from us from Perkins Coie Top 50 Law Firm. According to the MLA-100 rankings by revenue. And they have announced that they are going to change the hours requirements. They’re increasing the number of billable hours that associates have to bill in order to be eligible for their full bonus. I think it’s an additional 50 hours, which listen, 50 hours is not a ton of hours, but that it will be client billable work because the number of sort of other hours doesn’t increase with that bump. But I think the thing that is really — at least according to the tipsters that we have gotten a hold of that really irritates people is that the the year that counts for your bonus starts in October. We’re almost five months, nearly half the year done when they’ve decided that they are increasing that number of hours.
That’s obviously supercharges the increased onus on associates because they don’t have the full year to make up that 50 hours. I think in some of the meetings, the firm was like, well, it’s less than an hour a week additional. It’s like, sure, if you had told us in the beginning of the year, in October, when this is when this the year starts running from, maybe that would be true, but halfway through February, that’s not true anymore. And if associates fail to hit the new target, but do hit the old target, they will get 50% of their bonus. That does strike me as a pretty steep decrease.
Chris Williams: That’s a heavy 50 hours.
Kathryn Rubino: Yeah, exactly. They can say like, oh, it’s only 50 hours. Why is this a big deal? It’s like, well, you think it’s worth 50% of my bonus? That sort of, I think, indicates what a big deal the firm is taking it as.
Chris Williams: We need the ABA to tell us what they think about this.
Kathryn Rubino: Let them weigh in. Listen, bonuses are fundamentally discretionary and I suppose it’s better telling folks now than at the end of the year. That is certainly something we had seen at the end of 2022 where firms are changing their requirements at the end of the year. But it’s not great. We heard a tremendous amount from folks inside the firm. One of my favorite quotes was that every associate is livid, which I was like, fair, you’re messing with someone’s money, don’t do that.
Chris Williams: One thing I wonder is how much outside of the initial shock of boohoo angry face changes, how much this will actually change in their long runs. Because I know that just from what I gather from law, from curve culture, even if it’s like the expectation is 2000 hours or so, there were so many people that would still work over it just because they want to maintain appearances and not do the bare minimum.
Kathryn Rubino: Sure. I don’t think that a requirement like this is going to change folks who are going to go over. I don’t think most people are going over because of appearances. I think they’re going over because the work is there and it has to be done. I also think that in a world where we’re seeing slowdowns, where there are not as many hours to go around in a lot of practice groups.
Increasing it by even 50 hours a year could very well be the difference between — listen, I’ve worked at big law firms, and it’s terrible when you don’t have enough work to go around. You have to sort of knock on folks’ door, send emails that be like, hey, if anybody needs anything, just let me know. Or some firms, I guess, have assigning partners or whatever and having to go through that process. And there’s also the whole worry that as much as you may want the work right now, it may be that the two cases that you’re on all of a sudden get hot. There’s motions that are due next month, so I can’t really build my hours this month, but next month I’m pretty sure I’m going to be slammed. But I need hours because if I’m not averaging X number of hours a week, I’m just not going to get my bonus at the end. I think it just adds a layer of stress to the entire process. That seems unfortunate.
Male: Your clients are expecting you to know a lot of things about a lot of things, even topics like domain names.
Female: Domains are definitely not covered in my law school classes.
Male: Worse yet, your client might want a domain name to protect their brand or support a product launch that’s already taken.
Female: Fortunately, GoDaddy’s Domain Broker Service can help. Expert brokers will help you securely and confidentially get that perfect domain.
Male: To learn more, visit godaddy.com/dbs.
Female: As you know, it’s important to keep your voice down when you’re inside a library. But it would be really annoying to talk like this all the time. So I’m happy to say that even though the ABA journal’s Modern Law Library Podcast discusses a new book with its author every episode, it doesn’t take place inside a library. So we don’t whisper on the show. What a silly idea that would be.
Female: The Modern Law Library podcast. Part of the Legal Talk Network. Follow along wherever you get your podcasts.
Kathryn Rubino: Perkins Coie is not the only big law firm that is trying to cut some costs or increase the value proposition of keeping associates on. Last week, we also learned that Shearman & Sterling is laying off folks. A mix of both associates and staff. Certainly not the only firm, not the only noteworthy, kind of above the fold big name firm that has instituted layoffs this year. But it is the most recent.
Chris Williams: Do you think that we’re at the start of layoffs, or do you think this is about the end? What can people expect moving forward?
Kathryn Rubino: I know there’s a ton of big law prognosticators out there that are happy to give a quote to any number of legal publications predicting worse things are coming, predicting more layoffs, more cuts to bonuses an hour and increasing our requirements and all that kind of stuff that really helps big laws bottom line, I think that overall, I don’t think we’re not going to understand the full reach of what’s going to happen until we start getting the financial numbers for 2022. Obviously, firms know where they stand, but they haven’t all been reported out yet. We’re only getting very initial reports and some firms are doing fine. Not the ones that are laying folks off, mind you, but, I think that the first ones that we’ll start hearing about are the people who are doing fine and then the people who are, okay, before we start hearing the details about the firms that maybe struggled a lot in 2022, but I don’t think we have seen the end of layoffs.
And again, remember, there are two primary kinds of layoffs that we’ve talked about. The very clear firm management lets everyone know that these cuts are coming, they lay the folks off, and it is what it is. Then we also have the stealth layoffs or the quiet layoffs where they’re trying to just shed some headcount in order to increase profitability of the firm, but not necessarily admitting that it’s because of the financial performance of the firm or because of anticipated economic conditions and leave associates to feel like it’s on them that they’re dealing with this right now. But I don’t think that Shearman is the end of layoffs at all. Certainly not if we’re including these performance based cuts that I do think are more common because there’s a certain level, I think, of performance that everyone’s happy with until the market starts to their productivity, starts to take a tumble and then they’re less happy with work that they’ve never had a problem with previously, which stinks. And some of the numbers that we are seeing from 2022 are for the first time since, I think, at the Wells Fargo Big Law Report.
The most recent one said that since the history of the Wells Fargo Report, there has not been such low average hours, billable hours. I think we’re under 1600 is the average now is under 1600, which is a pretty — you can see why big law firms might be freaking out, and that’s because lots of firms increased headcount in 2021, and that did not correlate with the increased number of hours that the firm was billing out. It decreased the overall productivity of their workforce as opposed to doing something else. I think that there’s a lot of right sizing going on, which still means you wind up at the unemployment line. They can try to rename it all they want, but it’s still not fun times if you’re the one out there who has to deal with it.
Chris Williams: I just not be pissed off and I look at the report, finally gets out, and, like, the firm is like, we had to laid off. We only made 4.6 billion years in revenue this year. Like, what? You can get over that. I got a type of pay cut. Only pay me 270,000 this year. Don’t kick me out.
Kathryn Rubino: One of the first layoffs that we reported was the richest law firm in the world, Kirkland. Right? They’ve laid folks off. They will absolutely come in with billions of dollars of revenue.
Chris Williams: And just feel like we couldn’t afford it. I’m sorry. It’s breaking our hearts. It hurts us more than –
Kathryn Rubino: They do have thousands of employees. Listen, they have a lot of attorneys. They keep on their payroll in order to get such big revenue numbers whereas it’s different when you’re talking about a firm like a Wachtel, for example, which has 300-ish attorneys. It’s still working in quite the hefty profit numbers, but that firm is more eating out on its profits per equity partner numbers as opposed to their overall revenue numbers, which I think makes that a very different proposition. And we’re not hearing about layoffs from somewhere, like, Wachtel.
Chris Williams: Yeah. I feel like once your firm reaches the level of when you mentioned around your other lawyer friends, you look at you like, your company can no longer complain. They can’t pull that. We’re so sorry. I just think that firms should be more comfortable being dirty capitalists. They should be like, we’re laying you off because we want more cash. Good luck.
Kathryn Rubino: Have fun with all that out there. That makes it harder for them to then recruit the next generation of cogs in the wheel.
Chris Williams: To grease your new cog.
Kathryn Rubino: And then you get to have that very impressive name on your resume. Even if they do lay you off, it’s still on your resume.
Chris Williams: And then you go to the smaller 300 people firm.
Kathryn Rubino: Well, I think that brings us to a close for today. Thank you all so much for listening. Please subscribe to Thinking Like A Lawyer on your podcast listening service of choice. You can also follow us, also keep up with what’s going on in abovethelaw.com. You can also follow us at ATL Blog on Twitter. I’m on Twitter at Kathryn1 and Chris is on Twitter at rightsforrent.
Chris Williams: Really?
Kathryn Rubino: I think so. Am I right?
Chris Williams: No, the numeral one.
Kathryn Rubino: Numeral 1. It is the number one, Kathryn with the number one.
Chris Williams: Shouts out to Joe.
Kathryn Rubino: It’s also because I bugged him about it.
Chris Williams: Got you.
Kathryn Rubino: You should also be checking out the rest of the podcast from the Legal Talk Network. I also host the jabot about diversity issues in the law, and I think that might be everything we have to say right now.
Chris Williams: See you next week.
Kathryn Rubino: Bye.