Joe Patrice: Hello.
Kathryn Rubino: Hi.
Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by my esteemed colleagues. That was Kathryn Rubino who piped up already. We also have Chris Williams here, who has not yet piped up.
Chris Williams: Well hello.
Joe Patrice: Now he has and now we are breaking down some of the big stories in the legal industry of the week that was, as we usually do on this show. Yeah. But as we also usually do on this show, we begin by having a little bit of personality time, by having some small talk, which is where we would play a trumpet sound effect. But for some reason, those aren’t working for me right now. I don’t know why.
Kathryn Rubino: Oh, that’s okay. We still like it. I don’t how —
Chris Williams: You sound distraught, Kathryn. I don’t know if you’ll be able to get through it, honestly.
Kathryn Rubino: I don’t know about the rest of you, but I spent the weekend putting up Christmas decorations and watching live streams from Argentina, which, if you know, you know what I’m talking about.
Joe Patrice: Okay. No. Yeah, I know and no.
Kathryn Rubino: Taylor Swift’s concert. Her Eras Tour went to Argentina, and her boyfriend, Travis Kelce made an appearance, and it was really adorable. And there were lots of good moments that I’m sure neither of you actually care about, but you should know that it’s taking up way too much of my brain space, and I don’t think I’m alone. I’m confident that I’m not the only person who’s listening to this podcast who cares about the could not be sweeter romance between Taylor and Travis.
Chris Williams: And speaking of Joe’s behalf here, I just want to say shame to all of you who are also in Kathryn’s position.
Kathryn Rubino: I mean, come on. It is a really cute love story playing out in front of all of us. Why don’t you care? That’s a better question.
Chris Williams: Some dude, looks like some dude plays for a team.
Kathryn Rubino: Sure because he is a dude. He looks like what he is.
Chris Williams: It’s just some guy. Any other guy. I didn’t know about the dude before he was dating Taylor. I never really cared for him. Not going to magically care because he’s —
Kathryn Rubino: Significantly less famous than Kelce, but —
Joe Patrice: So, look, they’re all, whatever. It’s fine, Travis Kelce seems, like, enjoyable, but I just can’t waste any bandwidth on somebody else’s relationship, period, let alone people I don’t actually know.
Kathryn Rubino: It’s like a romance novel in real life, like, playing out for all of us. I was talking to some friends of mine, and we were like —
Chris Williams: Define us.
Kathryn Rubino: Like the world. It’s playing out in front of the world. Everyone can see it.
Chris Williams: No, it would have been the same amount of fanfare if she would have got hooked up with some dude from a 7/11 counter. He’s just some dude. He’s a guy. You only care because it’s her.
Joe Patrice: That’s probably unfair.
Chris Williams: So people that work at 7/11.
Kathryn Rubino: He did have his own dating television show before this. Just FYI. People cared about his relationships before this too.
Joe Patrice: He’s extraordinarily famous, however. Yeah, it’s more that I just cannot begin to care about other people’s relationships.
Kathryn Rubino: And good for you. Do you want a gold star for that?
Joe Patrice: Yes, I do and frankly, I think I have several of them because most of the world does reward not getting involved in this. Anyway, secondly, I’m going to transition a little bit to a small talk topic that is also quasi legal so we can have kind of a fun law school exam sort of chat here.
Chris Williams: That’s just the podcast.
Kathryn Rubino: You are not good at small talk. You do this all the time, Joe. You hijack small talk for Legal Talk.
Chris Williams: Speaking of small talk, Cravath Partners, no, like. Cravath, I know.
Joe Patrice: Deeply disappointed to have learned that Warner Brothers, which is a movie studio run by people who are incredibly incompetent at everything they do, has taken a fully made Wiley Coyote movie and shelved it in order to claim a tax write off, which is something they’ve done already. They did that to a fully finished Batgirl movie and I think maybe some other movie, too. It’s a continuing plague on tax law that these companies can make movies and then feel they get more value out of then vaulting them and letting no one ever see the movie than trying to let people see the movie. Because our tax law is tilted in such a way that it rewards them more for making things that then go away and are never released, then put out, which is one a tax law problem. I would also say another thing that’s been coming out of this story that’s kind of legal-ishy is that I’ve noticed that some of the crew have tried to put up little clips of things that they worked on before all of their hard work was destroyed this way. Warner Brothers has been filing copyright claims to take it down.
Kathryn Rubino: For stuff that they refuse to release.
Joe Patrice: For stuff they refuse to release. I feel like you have to — I know it’s not a trademark situation. Copyright is not the same as trademark, but it feels like you should be actively trying to exploit the work to have your right exist in it. Once you stop trying to exploit the work. I feel like you don’t get to claim that anymore.
Kathryn Rubino: Yeah, but I mean, fundamentally, you’d have to go to court to have any of these rights vindicated whereas most platforms just pull the — if there’s a copyright claim, they just pull it and it doesn’t matter whether or not there’s actually a valid legal claim there or not. They just pull it because it’s easier.
Joe Patrice: Well, yeah and in copyright, you don’t have to actually put your stuff out for it to be protected copyright. It’s just a shame, as opposed to trademark, where you have to be engaged in using it. But it’s a real shame that all these people who’ve devoted all this work to building a movie. But although one person on social media did put it well, that Wiley Coyote going to all the trouble to make a full length movie and then having it never see the light of day is incredibly on brand for Wiley Coyote.
Chris Williams: That is incredibly apropos.
Joe Patrice: Yeah.
Chris Williams: I will say, I just imagine a full length Wiley Coyote movie is just some dude in front of a green screen for 1/2 hour to 90 minutes.
Joe Patrice: Well, so it’s apparently an animation live action hybrid. John Cena was involved. It’s actually also legal.
Chris Williams: John Cena was involved. Of course, we can’t see it.
Joe Patrice: Yeah. The title of the movie is Coyote vs. Acme. It’s about the legal case of Wiley going after Acme for all of the harm that he’s suffered at their hands.
Kathryn Rubino: That sounds like a slam dunk frankly.
Joe Patrice: It would have been a great legal movie, too, and we’re not seeing it.
Kathryn Rubino: So really Biglaw is keeping us from it because some plaintiff’s firm was on top of that.
Joe Patrice: Well, yeah, that’s right. It’s Biglaw trying to prevent us from learning about product liability law. All right, well, Chris, do you have anything to —
Chris Williams: No, I just want to reiterate that John Cena, you can’t see me joke was hilarious.
Joe Patrice: All right, so we are going to move on to the topics of the day. What is the most important topic of the day?
Kathryn Rubino: Money. Yeah, it’s all about the money these days. Last week, pretty early in the year, first week of November, which is much earlier than we typically see. Yearend bonus announcements. Milbank announced their bonuses on the same scale as last year’s bonuses. That is not the story. That is the little subscript to what happened because in addition to announcing bonuses, Milbank also decided to announce raises, 10K raises for every class year, bringing the first year starting salary. Remember, it’s starting salary. You may have never had a real job before in your whole good goddamn life and you start at a Biglaw firm with $225,000 plus bonuses. Plus, bonuses. It’s a lot of money for someone who potentially has never actually worked. But the really interesting thing. So that is interesting, right? It was announced, we’ve talked on the podcast before this year about it’s a weird time in Biglaw. It’s not like everyone’s doing well. So of course there are bonuses or raises or whatever. Some firms apparently are doing well. But there have been layoffs, there have been hiring freezes. There have been also been delays in starting at Biglaw firms. There have been all sorts of sort of indicators that maybe not everything is doing great in the industry and Milbank’s out here being like, no, we’re good, we’re good. We’re going to raise the salaries. So far, we’re about a little less than a week since the announcements, and thus far, no firm has announced a match as of this recording. That is pretty unique.
Joe Patrice: This was huge news obviously. Let’s break it down into a couple of different buckets, because I think you’re raising a lot of issues. One is, can this be construed as a power move on Milbank’s part to say, hey, some people in the industry are laying folks off, some people are hemming and hawing about the market. We want prove that we’re tough and strong?
Kathryn Rubino: I think so. I think Milbank, as the firm that made the move too, is also a really interesting one. The last couple of raises, Milbank was the first actor. They’re the ones who got the ball rolling. In those previous instances. Other firms came over the top, said, okay, actually we’re going to increase it more than Milbank did, maybe only for some classes, whatever it was. But Milbank then proceeded to match whatever the new industry wide standard was, clearly.
But I think that their leadership appears to want to be on the forefront of salary information whether that means that they have to come back out and have a second round of raises, they don’t care. That doesn’t bother them. It doesn’t embarrass them in any way. But they’re the ones who get the ball rolling. I think that in and of itself is a power move. I think particularly in a year when not everyone is doing as well as they are, the fact that they have this extra profit and want to share it with their associates rather than just take it home, as in their profits per partner numbers, is telling.
Joe Patrice: See, and I see it as slightly, it is definitely power move in that they’re doing something. I also, though you mentioned previous times Milbank has triggered around raises, and I will say one of those times in the past, they were pretty upfront that it wasn’t really that they were trying to do a raise. They just felt that inflation had been what it was and that a cost of living adjustment was necessary and they felt that just raising things by 10-grand was not an attempt to undermine the market, but just an effort to be like, hey, cost of living, this is what’s going on which is why the size of this particular bonus, or not bonus, comp change. I read the same way. I think that they just said, especially after we heard, like, inflation appears to be under control now. But we have to admit, we did have a run last year of some pretty hefty inflation, and Milbank’s just responding to that. I think that in some ways, I think it’s less of a, oh, they’re trying to get ahead of the market and more just like they recognize that things cost more now. I actually ran the numbers on this raise based on where we were two or three years ago to today, and frankly, it’s slightly under what the cost of living adjustment would be if you tracked inflation exactly since the last raise. So I don’t know, I see this as great for them. Yes, it’s a power move to the extent that other people are thinking of cutting back. But also I think what’s really admirable is that it isn’t a massive increase in salary. I think they just recognize that people need more money now because the cost of living’s gone up.
Kathryn Rubino: Well, I mean, a couple things. I think, first of all, that might be true that inflation sort of was run away over the last year or so. But the other thing is that it’s not the previous time when Milbank kind of was like, oh, I think this is mostly just inflation, et cetera. There had been a bit of a gap between the last set of raises and those raises. So it’d been like maybe three or four years or something like that. And so then they feel we need to make this sort of cost of living adjustment. We had raises last year. We had raises in 2022. We had raises in 2021. So the no notion that somehow there’s a problem when there’s an inflationary problem in the industry, I’m not sure that that is as true as it might be. The other thing to note is that —
Joe Patrice: Let me just say we did at one-point last year, we were tracking, like, an 8% inflation rate on a monthly basis.
Kathryn Rubino: I said inflation was crazy last year, but I don’t think most people are not getting those kind of inflationary in a one-year turnaround. Most industries are not doing that for good or for bad. They’re not. So take that for what it is. The other thing to note is that I think that we’ve heard a lot of murmurings, obviously. I don’t know Milbank’s client mix specifically, but clients are putting out a lot of like, ooh, we don’t want these big increases because last year. Yeah, I mean, last year, there was a big increase across the industry in terms of what their billable rates were in Biglaw, and they’re expected to raise them again in 2024. You hear a lot of perhaps natural grumbling from their clients saying, like, this is too much, et cetera, et cetera. But despite the fact that that might or maybe not be true, that they may be getting pushback from clients, or at least that’s that kind of buzz that’s going around, Milbank is still willing to do it, whether that means that they are getting the increased money from their clients or they don’t care about it or who knows what exactly going on behind the scenes. We don’t have access to all their sort of detailed numbers. But it says a lot about, I think, a firm that’s willing to put their associates ahead of other concerns.
Joe Patrice: Yeah, I don’t know. I’m actually a little shocked that people aren’t jumping on quicker, given the relatively modest nature of this, given that it does kind of track inflation. While we were chatting, I crunched a little bit more. I hear from people who are a little bit older, like, “wow, this would have been great to get this money back then” and I just ran through from when I started as an associate my first year, if my starting salary had tracked inflation, it would be 217 a year now. So really, this isn’t all that far off of where the economy has gone over all these years. I don’t really see it as a wild outlier. Obviously, clients are going to complain because that’s what clients do. And they do that right up until they need to get something done and like, look, if they don’t want to pay those rates, there are plenty of law firms that offer very competent legal services who charge less, but nobody gets fired for hiring Cravath. And so ultimately, when it’s a bet the company matter, they’re going to end up paying those rates anyway. I don’t know. I’m tired of that.
Kathryn Rubino: But I do kind of also want to talk about the fact that no one has matched. We’re almost a week later. No one has matched. Not a boutique, which sometimes they’re smaller, so they have more flexibility. They have a better sense of their financials. They’re able to sort of make these moves quickly. Not a Biglaw firm. No one has matched. I find that very interesting. I think that there will be matches. I don’t think that this will last for forever. Perhaps even by the time this is published, there’ll be some matches. But usually historically, I’ve been around for quite a few rounds of raises at Above the Law, and what we tend to see is within the same day, we usually have at least one or two firms matching within the first Friday after the announcement. Friday is a very popular day to announce bonus or raise news. We usually hear something on that Friday after, we’ve heard nothing the Friday after. I don’t know what that means. I don’t know what that means. Maybe some players are thinking about coming over the top of these numbers. That’s certainly a possibility, one that’s getting a lot of play on Reddit and other sort of, and Fishbowl and other sort of message board services, which makes some sense. Everyone would love, associates would love there to be more raises of course. I don’t know how realistic that is. We’ll see and it’s also interesting to think about who will be the firm that either does the first match or comes over the top. Obviously, historically, Cravath and Davis Polk are both firms that have led the sort of top of the market charge. Neither of them have made any murmuring so far about what they’re all going to do, and I don’t think we all know where the top of the market will settle until they have announced something.
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Joe Patrice: Okay, we’re back. Let’s talk about Cravath. Because at the exact same time that we got raises in the industry, we also had another kind of milestone moment for the legal industry coming from Cravath.
Chris Williams: Right. Cravath finally cracked on non-equity partnerships and they introduced a salary partner tier, which is kind of weird if you know how partners generally work. There is a thing because they have the equity. So, like, partners without equity is like drivers without licenses or something.
Kathryn Rubino: Or licenses without drivers, yeah.
Chris Williams: License without drivers.
Kathryn Rubino: Yeah. I think that the industry is moving increasingly towards having that second tier. Cravath is one of the holdouts, largely because they created the Cravath model which was that it was lockstep single tier partnership, and that was their jam. That’s what they were known for. It is very noteworthy that Cravath has decided to move over to this income tier of partnership, joining many, many other Biglaw firms. I think last year there were only like 12 or maybe 13 Biglaw firms in the Am Law 100 that were in a single tier of part of equity partnership, like only equity partners. Obviously this year, it’ll be less than that. We’ll see.
Joe Patrice: Yeah, it is definitely the way the industry is going. It’s a little problematic. I mean, there used to always be an income partner tier, and we called it special counsel and that was what they did.
The problem with moving towards this income partner model and calling it a partner when it’s not really a partner has been — there have been studies looking at this and it’s unfortunately used a lot of time as a grounds to stymie the careers of women and other minority attorneys who are senior. But the firm wants all the benefit from being able to say that they have a diverse group of partners, but they want to share none of the actual money with them. And so those folks end up in this tier where they get to be marketed as partners without actually being partners. That is a real problem. Not saying that Cravath or anybody in specific is looking to do that, but that is the impact that this has had. Whether it’s been intentional or kind of an implicit move on a lot of people’s parts is kind of beside the point.
Chris Williams: Has that been basis for any discrimination lawsuits that you know of?
Joe Patrice: No one’s like, sued over any of this, partially because it’s still a good job to be an income partner and so nobody wants to get rid of it. But yeah, this is a real issue and they have all sorts of excuses for this. Women, they have kids and so they aren’t in a position to be an equity partner, but they can be an income partner. Like, all of these sorts of excuses are how this gets institutionalized. I also think there’s some level to which this is a people not willing to, the older generation not willing to relinquish power a little bit. There’s a lot of, “well, we’re here, we just don’t think this next crop is as good as we were” which is almost certainly not true. They are almost certainly as good, if not better than you all were but everyone kind of views their generation as though they had it more together than the next one. That used to be something that, because there was a single tier, people had to get over it. Now there’s more of an opportunity to not do that. I think that’s going to lead to a troubling situation, which it’ll be great for the bottom line of those equity partners, but it’s a troubling situation long term because the leverage is going to get way out of hand. You’re going to start having handfuls of equity partners with a huge tier of income partner and below.
Kathryn Rubino: Yeah, this is also related to the issue of origination credit though, too. Right? And we talk a lot about, on the Jabot podcast because we talk about diversity and the law, but about origination credit and income partners and about how sort of the combination of those two things has really led to a lesser than tier that I think it’s noteworthy and it’s happening. And also, all these decisions are very firm specific. So it’s not like, industry wide, we need to do the following to origination credit, or we need to do the following to partnership. Because every firm has their own brand and it’s all kind of done individualized. It’s not kind of a standardized. It’s also done behind closed doors. It’s not really clear from the outside how original agent credit is distributed for big institutional clients, partners that have been at the firm for 40, 50 years, how much and maybe aren’t billing that much anymore, how much of the origin are they still getting from those clients that they may be inherited from some other old white guy. I think that the way that these things get talked about is very firm to firm specific, but it is absolutely something we keep on seeing across the industry.
Joe Patrice: Yeah and not only were there the history of this to be a one tiered partnership, but going back even further, it used to be that more firms adopted kind of a lockstep partnership compensation, which everyone was a, for lack of a better word, partner in the endeavor. When you’re an actual equal partner in the endeavor, origination credit doesn’t become as much of a deal. Everyone’s working together. Everyone shares in those spoils. As the industry has moved away from that, you’re going to get these kind of uncomfortable situations where people are stabbing each other over origination credit, where they feel the need to create more tiers of lesser tiers of lawyers, because that way they don’t have to share with them. It’s kind of a cancer in the industry as a whole that I worry is making law a less awesome place to be.
Kathryn Rubino: The other thing is that it’s not like your striving ends at income level partnership, if there was, and this is, I think, what sometimes counsel used to be, where it’s like, you don’t make partner your counsel, but there’s an expectation that you have less hours or you’re not billing as much, or you have something else going on in your life. You’re not interested in billing 3000 hours a year. But that’s not what’s happening, I think, with income partners, because they’re still holding out equity partnership.
There’s still some bigger, bolder brass ring at the end of an undisclosed amount of years that you may be considered for. We’ll see. I think that that just kind of prolongs the rat race for a lot of folks.
Joe Patrice: It’s sad to see this development. It obviously is how the industry is. But, and I fear that that number of one tier folks is going to be even smaller sooner rather than later, unless we do something. It’s good that, of course, the rankings like Am Law has now carved out the PPP to have PPEP to at least acknowledge that there aren’t. Not every partner is a partner, but if we could all kind of linguistically agree.
Kathryn Rubino: With the folks with income tier actually like that because their PPEP number looks fantastic. It’s this big number because they’re waylaying most people in the income partnership tier, so it works out for everybody.
Joe Patrice: Yeah, I’m just saying —
Kathryn Rubino: Except if you want to be partner.
Joe Patrice: We just need to come to a linguistic agreement that we not allow people to — I’m sure income partners like using the word partner, but we probably shouldn’t because it obscures this problem.
Kathryn Rubino: Yeah, but I think that in terms of client relationships, that’s not going to stop. Clients want to feel like a partner is taking care of their matter.
Joe Patrice: And that’s why it falls upon people outside of that relationship, like the journalists, to try and endeavor to not let that happen.
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Joe Patrice: Okay, we already talked last week a little bit about Nixon Peabody and the issues going on there. (00:27:36) has gotten worse.
Kathryn Rubino: Is everyone still a winner?
Joe Patrice: Everyone is very much not winning over there these days. Nixon Peabody, as we discussed last week, brought on Donald Trump as a client. Put aside whether or not that’s a smart move for the sake of alienating the rest of your clients or anything like that, and definitely putting aside whether or not it’s a good move to the extent that Donald Trump makes his lawyers issue some questionable arguments in the briefs they write representing him, including in this particular brief downplaying January 6 as just a free speech thing. Putting all of that aside, the real issue for a lot of folks within the firm is that this happened behind the backs of the partners who, under normal procedure, would have gotten informed that the firm was trying to take on a new client and had the opportunity to weigh in on that. Back to what we were just talking about, partners being partners in the business. As it turns out, this was done behind their backs. They were not informed of this. The managing partner did it with the help of the litigation chair, who signed off on it. Litigation chair has apparently, I don’t want to say apologized, but it’s apparently, according to tipsters, has reached out to the other partners to say, we shouldn’t have done this. This was an error that I signed off on this. The managing partner and the partner who represents Trump have been, to date, seemingly full on defiant, claiming that they get to make the decisions and they don’t understand this was a confidential, we get to do this. They had a firm wide meeting where basically the leadership told everybody to get over a. Then we learned that there was a partners only meeting that did take some questions where at least one partner raised the, “yeah, okay, well, you need to step down to the managing partner. All of you people involved in keeping this secret have to step down.” That’s. first call for that we’ve heard. Everyone’s not winning over at Nixon Peabody.
Kathryn Rubino: Yeah, this just gets messier the more we hear about it. It’s kind of wild. I’m not sure how much my opinion has changed from when we talked about this last week, except to say that people seem bigly mad at it. The partners do and you know fair.
Chris Williams: And to do all this over a client at notoriously doesn’t even pay his lawyers well.
Joe Patrice: And that’s a great segue. I got a tip from a reader who was just like, “put everything else aside.” A phrase that I’m using a lot here, which that phrase comes out when there’s a lot of bad things, when you’re putting a lot aside to get there. But one reader raised with me, like, what kind of retainer situation do you think they got? Because this is a guy who has traditionally stiffed his lawyers, as Rudy Giuliani knows quite well.
Kathryn Rubino: He has a non-zero chance to be in jail in the relatively near future and may have all of his business endeavors undone and taken away from him pretty quickly.
Joe Patrice: Yeah.
Kathryn Rubino: His prospects don’t look great. It doesn’t seem like a winning bet there.
Joe Patrice: This is a fairly limited representation, but motion practice can get expensive. So have they covered their bets here? I don’t know. It seems like if you’re in the position to start doing sweetheart deals for somebody, you’re probably in the position to be conned into, we don’t need to take any money up front. We’re fine. That’s worrying. Hopefully, for the sake of all those other partners, there was a retainer agreement that secured a large chunk of money, but we’ll see. All right, well, I think that’s everything we had this week. Unless there’s anything else. Thanks, everyone, for listening. You should subscribe to the show and get episodes when they come out. You should leave reviews, write things, give stars. That all helps. You should check out some other shows. Kathryn’s the host of the Jabot, which we talked about a little bit on this episode. I’m a guest on the Legal Talk Network Journalists Roundtable. Every week you should check out the Legal Talk Network’s other range of shows. You should read Above the Law so you read these and other stories before they come out. We’re on social media. I’m at josephpatrice at Twitter and I am Joe Patrice on other social media platforms. Kathryn is Kathryn1, the numeral one. Chris is writesforrent. The word writes like with a pen and pencil, which is also the name of a club that some people might belong to.
Chris Williams: That was smooth.
Joe Patrice: Yeah. With all of that said, we will check in with you all next week.
Kathryn Rubino: Peace.
Chris Williams: Peace.