Above the Law - Thinking Like a Lawyer

On the latest episode of Thinking Like A Lawyer, Kathryn and Chris ponder the need for a rule against Confederate flagsin 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.

Also, let's talk about Biglaw and cancel culture.How much continuing power should a judge have over the lives of defendants who plead guilty? A judge recently forced a woman to withdraw and apologize for statements diverting blame for an incident that she'd admitted to in court. A January 6th defendant is in hot water for the same thing. Prosecutors use overcharging and the ordeal of trial to leverage defendants into pleading guilty but a guilty plea has to mean something, doesn't it? Also, we discuss whether Biglaw has a cancel culture problem (it doesn't) and Judge Ho's case research (it's bad).

Also, some salty law school talk.Every high schooler has a group text chain and then a chain where they complain about the people they don't like on the group chain. Brett Kavanaugh is unaware of the second chain. Because when you have to do public tours to convince people that you have friends, you don't have friends. Meanwhile, a law professor didn't take too kindly to a student request. And while cursing at students isn't acceptable, the frustration probably was justified. Finally, there are a lot of thorny ethical challenges in this world, but some conflicts are pretty clear. Like, $62 million clear.

And what's going on with the legal market right now?The Supreme Court's inquiry into the source of the leak of its draft opinion in Dobbs failed to find the culprit among the clerks and permanent staff. Attorneys familiar with internal investigations pointed out that the report appeared carefully drafted to mislead the public without technically lying about the failure to investigate the people with the most access and motive, leaving the Court's legitimacy more compromised than when the investigation started. Meanwhile, an attorney caught billing hundreds of hours for document review he didn't do earns a suspension, and Goodwin Procter makes heads spin as its layoffs are immediately followed with a major lateral move.

Also, Joe Biden's documents elicit special counsel attention.A (now former) senior attorney at an Ohio law firm texted an associate blasting her for interviewing for another job while on maternity leave. The controversy laid bare the persistent threat of pregnancy discrimination, but also the ways these attitudes fester when management fails to take swift, decisive action. The Department of Justice appointed a special counsel to look into Joe Biden's mishandled classified documents in a case of Republicans needing to be careful what they wish for. Also Marjorie Taylor Greene found herself on the wrong end of a scathing cease and desist from Dr. Dre's legal team and Elon Musk continues to struggle with the aftermath of obliterating Twitter's legal department.

It’s only the beginning.While Goodwin Procter announced a major round of attorney layoffs, Holland & Knight announced a blockbuster expansion by adding Waller Lansden. Two different paths both driven by industry uncertainty: should firms cut or grow their way out of declining demand? Also, Ginni Thomas kept doing Ginni Thomas things.

Always waiting until the last minute.The week between Christmas and the New Year is usually pretty dead for legal news, which makes it the perfect time for a firm to try to slip some shady stuff past the goalie. Shearman started telling associates that they would not be getting bonuses for a variety of previous unannounced reasons. Foley Hoag tried to retroactively apply next year's hours requirement to this year's bonuses (they did the right thing and retreated within 48 hours). And Nelson Mullins sprung a new "collections" policy that you really have to hear about to believe.

The gang breaks down the biggest trends across the legal industry this year. From the Supreme Court's leaking to major ethical lapses, 2022 came in with a bang (raises) and leaves with a whimper (stealth layoffs). Did we learn anything? Probably not.Are we going to talk about it anyway? Of course. What else are we going to do?

It's all about optics.When an associate left Jones Day before serving a full two years, the firm billed for pro-rated bar study expenses. Once again, just because an agreement allows a firm to do something, doesn't mean it should. It's just not a good look for a firm. Speaking of optics, we also talk about Justice Brett Kavanaugh partying with Matt Gaetz and Alex Acosta -- and more importantly, parties with business before the Court this Term -- all while Supreme Court legitimacy sinks like a stone. Speaking of legitimacy, the Fifth Circuit agrees that a judge committed an ethical breach in hearing a case, but decided to just sweep it under the rug. Also, by the time this posts, Twitter will have changed its policies five more times, but we discuss the legal ramifications, if any, of Twitter's short-lived ban on mentioning "competitors."

Also the country may have dodged a constitutional bullet.If Ebeneezer Scrooge ran a law firm, he would probably bill associates for his own lack of work. It turns out, there's a law firm in North Dakota doing that right now. Also, the Supreme Court heard argument on the independent state legislature theory, a tortured reading of the Constitution designed to give Republicans a permanent federal electoral advantage, and it seemed to be a bridge too far for three conservative justices. All that and a chat about Congress making it a national secret how much money Ginni Thomas makes from outside interests.