Fight Or Flight… The Biglaw Conundrum

Episode Notes

Transcript

Joe Patrice:

We are back to another edition of Thinking Like A Lawyer. I’m Joe Patrice, I’m joined.

Chris Williams:

Hey, Joe, Patrice.

Joe Patrice:

Yeah, thank you. So I’m joined as usual by some of my colleagues, Chris Williams and who you’ve already heard, and possibly Kathryn Rubino, who you won’t be able to hear because I

Kathryn Rubino:

I’m here. Oh no,

Joe Patrice:

There she is

Kathryn Rubino:

Here.

Joe Patrice:

This is the second time we’ve tried to start the show. Somebody had some microphone issues.

Kathryn Rubino:

Well, listen, the on off switch is an issue,Which Apparently I can’t master

Joe Patrice:

You’re every IT professionals’ nightmare.

Kathryn Rubino:

Turn it off, turn it back on again.

Joe Patrice:

That’s fair. That’s fair. We do this show every week to talk about the big stories from the week. That was in legal hell of a week, you guys over here at Above the Law. It sure was. And on that note, maybe we’ll begin with some small talk before we get to the heavy stuff. Small talk.

Chris Williams:

So last week I went to Detroit for the first time and the streets that they drive on feel like highways. They’re like four lane left. Four lane. Right. Which makes sense I guess because it’s the Motor City, which is also where Motown gets its name from. I did not make that connection. Oh

Joe Patrice:

Really?

Chris Williams:

Yeah, I just took it as a historical block.

Joe Patrice:

Yeah,

Chris Williams:

Motown. It’s a thing because anyway, it’s Motor City, so there was still a jump between Motor City and Motortown. Anyway, while I was there, I went to the Motown Museum

And for anybody that thinks, oh, Motown Museum, they’re going to talk about the music. No, it was really like an administrative tour. It’s like you learn a lot about the back of house stuff, but there’s a lot of musical things that you think would be there that are just glaring absences. But there’s no real discussion of Marvin Gaye. No real discussion of the Jackson Five. No real discussion of Diana Ross, what have you. There’s a lot of Smokey Robinson from a document that seems to be from the eighties and a lot of Barry Gordy from a documentary that seems to be from the eighties, but the things you’d expect not so much.

Kathryn Rubino:

That’s fun. I used to spend a fair amount of time in Detroit back when I worked at a document discovery company. One of their locations was actually, well actually outside of New York. It was in Nova

Joe Patrice:

Outside of Detroit. Yeah,

Kathryn Rubino:

Right. Sorry. It was actually outside of Detroit in Novi. But we had to fly into Detroit all the time. And I remember I went there a lot and spent a lot of time there kind of managing discovery attorneys, reviewing documents, and sort of the most boring aspects of being a lawyer. And as I was in my car service, driving to the hotel right in front of the hotel, there was a car just on fire. The first day that I ever went to Detroit, I was like, I feel like this says something about my career, career about this city, about all the things actually

Joe Patrice:

Tesla.

Kathryn Rubino:

Oh no, this is long enough ago that that was not the common joke.

Chris Williams:

Yeah, back then Tesla was just a scorned inventor. Was it interesting haircut? Catherine, did you have the pizza?

Kathryn Rubino:

Yes,

Chris Williams:

I had Detroit pizza. It was really good. And I found out in one of my nerd friends that one of the reason that Detroit deep dish is so good is because of the car industry. So what they do is they would take the scrap metal, I think it was called blue something, blue metal. That’s not the exact name, but if you Google it, it’ll get you on the track. And it’s really good at maintaining temperatures. So that’s why I like the Detroit pizza. The crust is so crusty, Andy. Yeah, they’re like

Joe Patrice:

Old oil pans basically.

Chris Williams:

Yeah.

Joe Patrice:

And they use that. Well, they also, because they use brick cheese, they just blue steel.

Kathryn Rubino:

I was just say it’s the wrong cheese.

Joe Patrice:

They use that Wisconsin brick cheese, which helps too because the oil goes, yeah, no pizza.

Chris Williams:

And I don’t know what combination of plastic and carcinogen they use to make it, but whatever the recipe is, they don’t need to change the damn thing. It is phenomenal.

Kathryn Rubino:

Listen, I am firmly in, even though I’m a New York native that has very, very clear opinions about the ideal pizza, I am firmly team. There’s no bad pizza. I enjoy a Chicago deep dish. I like a Detroit style pizza. But I wish there was another word because it is not the same as a classic New York slice. Well, Chicago

Joe Patrice:

Deep dish is a casserole. It’s not a, that’s

Kathryn Rubino:

Just a casserole with bread. I don’t

Joe Patrice:

Chicago Tavern style though is pizza, I would say.

Kathryn Rubino:

Sure. I’ve never heard of

Joe Patrice:

That. So most of Chicago, when you talk to people who are from Chicago, most of them be like, yeah, that deep dish thing is not really our thing. They like a thin crust cut into rectangle kind of pizza.

Chris Williams:

I’ve had that in St. Louis.

Joe Patrice:

Well, the St. Louis style is, that’s the one where the dough is super cracker, very, very thin.

Chris Williams:

I know at Emos, which is where I got the slices, it was, it’s if you found out that flatbread had too much fluff in it and you suck that out.

Joe Patrice:

Yeah,

Chris Williams:

That’s what they serve it on. They have this strange cheese that looks like shaving cream when it’s sold in the stores, but then it melts and then all that plasticy goodness is basically like a cracker effectively the pizza. But it’s good. It’s good. I have many things to say bad about the city, but the pizza’s not one of them.

Kathryn Rubino:

Fair.

Joe Patrice:

Well, alright, well let’s get into it. We’ve got a bunch to cover here. Okay. Yeah,

Kathryn Rubino:

Big Talk. Big law talk, that’s

Joe Patrice:

For sure. Oh, there we go. What a transition. So this carries on from where we were last week. It has just kind of accelerated though. Now

Kathryn Rubino:

This gotten worse, you guys. Well, isn’t that better? It’s not better.

Joe Patrice:

No, I don’t necessarily know. So that’s true. So last week we were talking about how Paul Weiss had conceded basically to the administration and big law was somewhat adrift as to whether or not people were going to stand up to any of this. While there’s a little bit more bad news in there, I think we can jump ahead and say that multiple firms have stood up. We now have two in particular with Jenner and Wilmer, both choosing to file suits in response to the Trump attack rather than settle with them.

Kathryn Rubino:

Well, I mean, I think a couple of things. I think you’re right. Obviously Jenner and Wilmer coming out and filing lawsuits immediately, like the day after for one of them, and the same day as it came out, which it was the Wilmer situation, which also not surprising actually to me because if you had asked me who’s the next big law firm that’s going to get executive order, I’d been like, it’s going to be Wilmer. And they were completely ready for that eventuality. And I really did appreciate that some planning went into it, but it’s still a real bad thing that there were two more firms that were subjected to executive orders.

Joe Patrice:

So that is bad news. But there is something to be said for some folks have decided not to allow themselves to be pushed around, which I think is important largely because what we were talking about last week was if the big firms who have the resources to fight back, stop fighting back, it kind of undermines the chances that anyone will stand up. And it chills anyone’s appetite for arguing against this administration. We should also, I guess, credit the attorneys involved here because they’re now got a target too. So Cooley, LLP is representing Jenner and Wilmer is represented by, hold on. Oh no, I got a typo in my script here because it says they’re represented by Paul Clement that can’t

Kathryn Rubino:

Possibly be right. It’s true. Clement and Murphy is representing Wilmer Hale.

Joe Patrice:

So let’s take a second here. I think no one has been harsher toward him than me, I think over the last several years. But for a guy whose business model rests on being the go-to lawyer for the conservative legal movement, punching Donald Trump in the face is quite the move for him.

Kathryn Rubino:

Yeah. I think someone once suggested that, well, he’s finally realized he’s too old to get that supreme federal court court nomination. Supreme, Supreme, Supreme.

Joe Patrice:

That is fair. That is the person who one would’ve thought in a more normal Republican administration, he would’ve probably already been there, but he’s not. And so yeah, maybe that’s the

Kathryn Rubino:

Issue. If we had President Jeb, we probably would have Justice Clement at this point our lives.

Joe Patrice:

Yeah, I think that’s probably fair. Yeah, no. And so this comes on the,

Chris Williams:

Just a moment of silence for the fact that’s probably the only time those two words are said next to each other.

Kathryn Rubino:

President in Jeb Jeb, exclamation point. That’s true. Exclamation point. Please clap. Please Clap.

Joe Patrice:

The five fabulous weeks of the Jeb campaign. So it is interesting that he’s doing this. This comes on the heels of he was dragged into the Eric Adams case where he kind of split the baby, I would say, where he wrote a report saying that the DOJ is allowed to drop their charges against Eric Adams, which I think a lot of us see as something of a corrupt bargain. But he said that they couldn’t do it without, they had to do it with prejudice, which was a limitation on what the Trump DOJ wanted. So at that point, I kind of viewed him as trying to, I felt like that was him fighting the instinct to help out the conservative movement and the instinct of he’s actually very smart. And so those were fighting and he came up with that middle solution. But hey, here he is.

Kathryn Rubino:

He’s chosen a side.

Joe Patrice:

Yeah,

Kathryn Rubino:

He is definitively chosen a side.

Joe Patrice:

Welcome to the hashtag resistance. I guess

Kathryn Rubino:

Strange times, strange bedfellows.

Chris Williams:

Actually, I don’t know. I feel like everybody that, so the way my heart is feeling is I feel like being anti-Trump is part of the way to get in the Trump favor because like JD Vance was like, oh, this guy’s basically Hitler and now he’s the vice president. True. I feel like Mark Rubio has probably said similar things and now he is Mark. So being part of the resistance is how you become incorporated.

Joe Patrice:

There is a bit of that though. Usually I feel like with those two, there was a supplication process where you speak out and then you apologize and then you’re his favorite. I think at this point, this is kind of a backwards beginning from being supportive and flipping around to being opposing, which seems more like a betrayal in a Trump mind. Speaking of, that’s a great segue though about people who do bend the knee to him being big people. He’s big fans of, obviously we already talked about Paul Weiss. Now the downside of this story for this week is that we have another firm choosing to do that.

Kathryn Rubino:

Yeah. Skadden similarly bent a knee to Donald Trump. And the really interesting, and I think far more disturbing aspect of the Skadden story is that they had not even had an executive order issued against them. They reached out apparently to the president’s team to strike a deal to prevent the EO from ever being issued against them. They represent, or in litigation, their pro bono teams are in litigation against dsh, Jesus’s movie, 2000 Mules, about a bunch of debunked 2020 election fraud stuff. And they’re fighting that in court. And Elon Musk got involved and was like, Skadden, this must stop. And the next thing you know is Skadden is on a knee begging for forgiveness. So talk about obey in advance.

Joe Patrice:

Yeah,

Chris Williams:

I get the obey in advance angle, and I think that’s the obvious one, but mine is you already have Paul Wise set what was supposed to be the ceiling at 40 million. Now that’s the floor. How do you go from that to 100?

Kathryn Rubino:

What Chris is referring to is that both the Paul Weiss and the SCA in deals, one of the bigger components of them is that the firms have promised a pro bono payola, meaning certain dollar amount worth of pro bono services to issues or matters or clients that the president approves of. For Paul Weiss, they committed $40 million worth of pro bono services, and Skadden has committed 100 million worth of pro bono services.

Joe Patrice:

So the ceiling floor discussion, and this is where I come in from a crim perspective, the first one to flip gets the best deal. You want to incentivize people to flip quickly. So you constantly ratchet up the stakes with each one. So the first person gets the lowest sentence and the second person gets the second lowest sentence. So on that level, if you think of it as a crim perspective, this makes sense that it went up. That said, going from 40 to a hundred is a hell of a jump

Chris Williams:

From the criminal law perspective. That makes complete sense. But at the level of negotiation rhetoric, I think that we’ve been talking about what Skadden did and was wrong. They didn’t bend the knee, they bend both of them.

Joe Patrice:

Yeah, this was more than double.

Kathryn Rubino:

And it’s also really interesting because Skadden has this very prestigious program, the Skadden Fellows, where they fund some public interest work attorneys to do public interest jobs, but Skadden funds it in addition to, or I think actually included under that a hundred million dollars mark will be that they will fund five Skadden fellows for sort of the ideological diverse whatever, just basically for causes that the right wing approves of.

Chris Williams:

So if you ever wanted to work at big law and needed a firm to support you researching unitary executive theory, your firm.

Joe Patrice:

Yeah, the Skadden fellow aspect of it. I’m glad you mentioned that. Obviously that’s one of the more prestigious programs that

Kathryn Rubino:

At least it was.

Joe Patrice:

Yeah, I mean, yeah,

Kathryn Rubino:

I think this will have a permanent scar on the program as a whole, particularly if another firm winds up kind of taking up that mantle. But I think it’s a real problem that public interest work at one of the sort of highest levels will always be now associated, at least in part with this corrupt deal.

Joe Patrice:

Yeah. Alright, well let’s transition. Focusing just on scattered now, and it’s a little bit of a text story, I suppose

Kathryn Rubino:

That is one way to certainly think about it. But the New York Times had broke the night before the terms of the deal were released saying that Skadden was thinking about doing this, but the terms had not yet been released. By the next day, Jeremy London, who’s the executive chair at Skadden, sent a mass email kind of detailing all the sort of details of the deal with Trump. Later in that day, a associate resigned normal, they got another job completely coincidentally that it happened on this same day and they sent a farewell email as one does. But what happened next was that some of the leadership team started emailing back and forth saying things like, how is this possible? It being like, well, they sent it to this listserv instead of that listserv. And what came out is that in advance of announcing the deal, Skadin tried to block or did block Associates’ ability to email the largest distribution lists at the firm so that they cannot communicate mass with one another. And they did that. And the reason why everyone knows about this is that those details were inadvertently sent to said distribution list.

Chris Williams:

My thing is this feels like Signal Gate, isn’t there Some group chat folks have where they can communicate these things like, come on,

Joe Patrice:

So this is, yeah, well this is that they tried to block this and yeah, and the reply Alling effect is problematic. Although there’s a part of me that also wonders if the reply all effect wasn’t a bit of resistance, the in and of itself, I

Kathryn Rubino:

Know sort of a malicious compliance kind of stuff, maybe who knows? And I think it’s interesting because Skadden has this kind of experience with mass emails, and I think that’s why they made this move before they announced the details of their deal with Trump. Because Rachel Coleman was the third year associate at the firm and famously organized an open letter to big law in general about resisting Trump. And then when the Paul Weiss stuff came out, she conditionally resigned from the firm saying that unless the firm took a stance against Trump, she was out. And they responded by shutting off her email, they were like, okay, you out. Cool. And she had sent this kind of large mass email distribution list to the folks at Skadden and they didn’t want more of them, I suppose.

Joe Patrice:

Yeah. Still it speaks to it’s an extra notch, the dystopian scale, right? To shut down all communication after you do something wildly unpopular with your people. And what happens of course, is everyone moves to other avenues to

Kathryn Rubino:

Put it out LinkedIn, which is what actually happens. Now, former Skadden senior associate, Brenna Frey posted her resignation on LinkedIn, sort of exactly what you might imagine the resignation was because of the deal, how the firm won’t no longer stand up for the rule of law and how that was a problem, et cetera. But I guess the point is that you may take away our mass emails, but you will not take away our corporate social media.

Joe Patrice:

Nice. Well, it’s finally nice to see LinkedIn used for something

Kathryn Rubino:

Courses of good besides, do you want to work at a phone bank? I think you do.

Joe Patrice:

Alright, well anything more on the email travails of these folks? No,

Kathryn Rubino:

No. I mean I think it’s going to be interesting to see the long-term impact at Skadden. I think the fact that immediately some folks we’re ready to hand in their resignation means we probably won’t see the last of it.

Chris Williams:

This all could have been avoided if they use either solo cups or pen and pad. I really do think it is a communication problem. I’d expect people that are like this high up would be better at sharing information confidentially. It’s kind of like the wheelhouse of lawyers. All

Joe Patrice:

Right, we’re back. We’re going to talk now. Still big law, but a different aspect of big law. We got an announcement that a major law firm is going to stop on-campus interviews

Kathryn Rubino:

Latham and walk-ins. Number two, in terms of their gross revenue is piecing out of OCI.

Joe Patrice:

So this is sad.

Kathryn Rubino:

I think it’s really bad.

Joe Patrice:

I view OCI as a very important aspect, rite of passage situation. But I also view it not just as a rite of passage for law students. It was one of the few checks on the hiring process as a whole. You were limited in reaching out and trying to hire students until the OCI date. And when that would happen, you’d go in and do your thing. Now it’s becoming a little bit more like the clerkship problem where there’s a race to gather people that people are getting summer jobs based on no grades and stuff like that.

Kathryn Rubino:

I mean, it’s very, very bad. What was it about seven or eight years ago now, the National Association for Law Placement changed their rules. They used to have rules saying that big law cannot reach out to associates. They cannot make offers to associates for students, sorry, make office for being an associate to law students. They couldn’t reach out before a certain date. They couldn’t make offers as of a certain date. They had to leave the offers open for a certain amount of time and they have receded from all those protections of law students. And it didn’t happen immediately. It took maybe eight or so years. But we’re at the point now where the majority of offers for summer associateships are happening outside of OCI and it’s very bad. I was talking to a friend of mine who is a first year student at a T 14 law school, and he’s already having to respond to an offer. He doesn’t have his grades for his second semester. He’s still in the middle of his second semester of law school. It’s bad enough when they used to do it based on only one year of grades,

Now it’s just at a mere semester. And he’s in a position where, well, that was just a place that I responded to the callback first and now he kind of has to make a decision.

Joe Patrice:

And much like the clerkship situation that’s gotten so out of hand, there’s a ton of exploding offers happening. These people are saying now that there’s no OCI floor, they’re handing out offers and saying, you have to take this or the offers off the table. This is not good for anybody. I mean, obviously it’s not good for the students who are being put in these situations where they have more limited choice, but it’s not really great for the firms either. I mean, how are you going to make sure that you’re getting a good fit, especially for the long term, which is what we’re really talking about these summer jobs. I guess the first year ones are a little bit different, but anybody going for the second summer

Kathryn Rubino:

Job, typically, this was a second summer offer that I was talking about earlier. Even though they’re still in the middle of their first year, it’s not for this summer, it’s for next summer,

Joe Patrice:

Right? Right. When you’re talking about second summer gigs, that’s your permanent gig. And I feel like that’s the situation where the firm itself is harming its opportunities by not allowing for that. Because you might be giving an offer to somebody who’s not a fit. And they would’ve figured that out when they interviewed next with Cleary or whatever and decided that they were

Kathryn Rubino:

Good. I also think it really insidiously preys on folks who don’t have a family history or have friends or colleagues that have gone through the big law process. If you are a first generation law student, maybe your parents don’t even have bachelor degrees. Your ability to understand what the difference between Paul Weiss and Cravath are much, much, much more limited.

You learn a ton. There’s a ton of information you’re trying to learn in your first year of law school about the law, let alone about the legal industry, meaning about big law and what Latham means and what the difference between Latham and ORIC is. And that’s a lot of information that is secondary to actually getting your grades. So necessarily takes a backseat. And if you didn’t have a dad who worked at Latham for the last 25 years, you have a much different perspective. So it’s really insidious and really hurts, I think people who don’t have that privileged background.

Joe Patrice:

So the scenario you just describes my experience though. Well, I mean you have family who were lawyers. I did not. So I, there were books that kind of have page long descriptions. I can’t even remember who put them out. Probably somebody like Vault or something that had a page quick summary description of the firms and you had to read that. And even OCI wasn’t perfect. You filled out that form of who you wanted to meet with based on very little information. But at least you were going to get 30 meetings. This is not,

Kathryn Rubino:

Yeah, I mean, first of all, I think I still have mine in the room that I’m currently sitting from. When I did my OCI interviews and mine was put out by my law school and it had these little tissue paper thin pages.

Joe Patrice:

Oh, those were the NALP things.

Kathryn Rubino:

Well, this one was done by the law school and included all the nalp information, included all the vault information as well. It was kind of all put together in one book and this giant book. And you could flip through these pages to find out all the details about the different law firms that you were considering. And you know what, I had what, 35 interviews in the course of four days.

And you get, it’s an intense experience for sure, but you get a lot of information about law firms and the interviews you have on day four, you’re asking different questions than you did on day one because things start to crystallize in your mind about, oh, I liked that. I didn’t like that. And you’re kind of trying to figure out and put together in your brain what’s important to you and what’s going to be important to you in two years when you take this job and three years when you actually start this job in a real way. And I think that that was an invaluable experience and they are taking that away from students

Chris Williams:

For a different perspective. My one oh year I applied for slew of big law jobs, just summer internships, didn’t get any of them. So here in these circumstances it feels like a suffering from success thing. Oh my god. Can you imagine? I got a job paying a bunch of money over this summer and it’s not my favorite firm. I do wonder about that angle. Granted, you didn’t get to pick the firm that you wanted, but you have something. And even if you don’t like it there, it’s a thing on the resume that you can use to say for your second or third year, be like, Hey, I did do my time here and I have some basis for what the work is like.

Joe Patrice:

Right. But that’s the thing. That’s what Catherine’s saying. This isn’t a one L summer situation anymore, which you’re right for that I didn’t,

Chris Williams:

I thought you were interested saying it is also a one L summer condition thing, right?

Joe Patrice:

No. So now what they’re doing is they’re interviewing one Ls for the job that is after their two L summer for their permanent gig. But your point is, right, if all this was a acceleration of the one L summer, which is a lower impact, more, just kind of feel it out kind of a job. If that were what this is, that would be, it’s still a lot of stress, but at least it’s understandable. But yeah, because the problem is if you get locked in to one of these two L gigs, it’s harder to get to move on from that job without being there for a little bit. So you’re now locked in for a few years rather

Kathryn Rubino:

Than, yeah, there are plenty of firms still though, who are less likely to participate in the lateral market. So maybe like a cravath, if you don’t summer there, your chances of working there are much, much smaller. Right. That’s just statistically accurate. And maybe you didn’t even know what a cravath was when you were putting out these applications or these resumes that you were sending around. There is no sort of organized OCI.

Joe Patrice:

Yeah. Rough. Alright, well on that happy note, we will, I think we’ve done everything let’s we’re done for this week. So thanks for listening. You should check out, you should subscribe to the show, get new episodes when they come out. You should give reviews, all that sort of stuff. You should check out the ot, which Catherine’s also the host of, I’m a guest on the League Tech Week journalist round table where you can hear all about legal week and a tech show. The big shows going on now. You sure can. You should check out the other shows on the Legal Talk Network. You should be reading Above the Law. Of course you read these and other stories before they come up. You should be following on social media. It’s at Above the Law dot com on the blue Sky. I am at Joe Patrice, she’s Kathryn one, the numeral one. Chris at writes for rent and we are done. Peace.

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