Author: TSA Press

There’s a real problem in the federal judiciary. Whether you look at disgraced retired judge Alex Kozinski, who was accused of pernicious sexual harassment in 2017; the resignation of district court judge Carlos Murguia, who was reprimanded for his “inappropriate behavior”; the stymied inquiry into Kavanaugh’s behavior which disappeared because he left the D.C. Circuit when he got elevated to the Supreme Court; or the powerful testimony of Olivia Warren, who detailed the sexual harassment and abuse she was subjected to during her tenure at the Ninth Circuit by the late Judge Stephen Reinhardt, it is clear the legal industry needs to do something.

The lifetime appointments of federal judges — and the inevitable power they wield, particularly for those that envision a career in the upper echelons of the profession, is enormous. So even in the face of sexual harassment allegations, the actual consequences for misconduct in the federal judiciary will be remains uncertain. The Judicial Conference working group focused on misconduct reforms was formed two years ago, and though they’ve released a report on how to change policies, actual change for clerks and other court employees on the ground hasn’t been realized.

Now law students from some of the best law schools in the country are urging something concrete be done about the ongoing problem. Yesterday, the Harvard Women’s Law Association, Stanford Law School for Gender Violence Prevention, Women of Stanford Law, Yale Law Women, and the Yale Law School Title IX Working Group, and the national law student group, People’s Parity Project, signed a letter to the Judicial Conference asking for specific reforms, specifically: publicly reported federal judiciary “climate surveys,” expanding the Office of Judicial Integrity, centralized employment discrimination responses for federal judges, and information-sharing between law schools and the federal judiciary for reports of judicial misconduct.

And they want it quickly, because they’re frustrated with the thus far slow response to the problem:

We are frustrated by the slow progress in combating misconduct in the judiciary, and we urge immediate action… The brave testimony of Olivia Warren is a reminder that these issues must not be ignored. We remain committed to ensuring the federal judiciary is a safe workplace and hope to serve as a resource for future reforms.

While the letter, available in full below, provides concrete steps to combat the “unique closeness of a chambers environment, the early career stage of most law clerks, the importance of clerking relationships to future employment, and the opaqueness of available remedies have made law clerks extremely reluctant to report misconduct,” there’s also a recognition that this represents only one step in the process:

“This is not the first step to address misconduct, and it won’t be the last,” said Yale Law student Anna Kaul, Advancement Chair for Yale Law Women. “We will continue to call for transparency and accountability to ensure that judicial employees are afforded the safety and respect that all workers deserve.”

It may not be the final step in the process, but it is certainly a big one in the right direction.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

People, for the most part, want to be part of a community, especially a compassionate one. We want to belong to something greater than ourselves. We may desire the support of that community when we struggle even if we don’t specifically ask for it.

The legal profession is no exception. We are people. We have stories. We get depressed. We stress. We cry. We laugh. We grieve. We are all more than our struggle, but when we look at our peers, we are often uncomfortable acknowledging that struggle, let alone a person with a life story.

As a macro community, we have survived common struggles. The struggle of law school. The struggle of licensing. The struggle of wearing or trying not to wear a suit comprised our client’s pain and suffering. The irony is that those very commonalities are the same struggles that often put us at odds with each other in the most uncivil of ways. A lesser, but crisis-level percentage of us share the common struggle of addiction, problem drinking, depression, and suicidal thoughts.

How do we, as a profession, foster a culture of compassion toward each other when we are often at each other’s throats? A culture of community in which we both take care of ourselves and our colleagues. It is through a compassionate community.

What is a compassionate community? The Center for Compassion defines it as a community in which “the needs of all the inhabitants of that community are recognized and met, the well-being of the entire community is a priority and all people and living things are treated with respect.”

There is a lot to unpack in that definition, but the term that jumps out is well-being. The profession has certainly made progress on that front with regard to the mental health prong. We have partially rolled back decades of drinking culture and mental health stigma, but so much remains not done, solo law to Biglaw.

The profession is nowhere near a tipping point, but breaking stigma and systemic mental health discrimination happen one person at a time, one lawyer at a time, one law firm at a time. In my opinion, most importantly, one story at a time.

Compassionate community is what lies in each of us. The ability to put ourselves in the shoes of others. The ability to empathize with the individual and collective struggle.

We all have that ability in us, but like resilience, it is something that we sometimes have to refine and nurture to expand beyond what we are comfortable living day-to-day. It may seem counterintuitive, but compassionate communities exist in a state of discomfort, testing barriers of empathy and compassion to keep expanding.

So how do we build and nurture empathy as a skill set so that we can foster a compassionate community? Here are a few suggestions.

1. Integrate empathy-building skills as part of your wellness initiative. Sometimes we forget that we have this empathy skill set when we deal with our struggles and daily life. A firm may have an excellent pro bono practice, and that is tremendous, but that is empathy on a lawyer-client vertical. Consider how to build it, lawyer, to lawyer laterally.
2. Encourage storytelling, whether it’s at a law school level, state or local bar event, your firm retreat, or new associate orientation. Stories do more than entertain. They put forward values and information within the community. When stories engage us on an emotional or empathetic level, it is again, science-driven, that we remember the takeaways better than when lectured to. In the realm of mental health, this emotional connection is vital because it lets others know that they are not alone in their journey, and that breaks stigma. It is also data-driven science that storytelling changes the brain, tie communities together, and drive those communities to be more empathic to each other.
3. Don’t need the first two tools? Here is the two-ask rule. It requires nothing but uttering five words. “How are you doing today?” Before the interaction terminates, let them know you are an open ear. The two-ask rule. You just became a part of a compassionate community.

There is so much more to building a compassionate community, but now you have a few tools that require few assets, little time and offer a fantastic reward. The ability to step outside our comfort zones and let each other know we care about each other.

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Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

Newly released Federal Reserve data shows that as of the third quarter of 2019, when the middle of the Millennial generation was reaching age 30, Millennials owned just 4.6 percent of total U.S. assets.

At the same age, in 2002, members of Generation X were faring better, owning a little less than twice the national wealth of today’s Millennials, at 7.8 percent. But Baby Boomers were doing stunningly better in their 30s than Millennials today. There is not data going back far enough to show Baby Boomers’ share of national wealth when the middle of their generation was at age 30, but there is data available at the slightly older 35. At that stage, in 1990, Baby Boomers owned 25 percent of total U.S. assets.

Did 35-year-old Baby Boomers simply work 500 percent harder than the lazy, entitled, snowflake Millennials of today? Were they simply 500 percent smarter? You’ll run into those arguments, mostly from handfuls of right-wing Baby Boomers. But the data doesn’t back them up.

Although Millennials earn 20 percent less than Baby Boomers did at the same stage in life, to the extent they can save, Millennials’ savings behavior is surpassing that of previous generations. Millennials are actually carrying around less total debt than Baby Boomers. And, although excessive student loan debt is certainly an albatross for the Millennial generation, Millennials do have the distinction of being the most well-educated generation ever at this point in history.

Maybe it’s systemic barriers rather than behavioral deficiencies that account for Millennials’ lesser share of the pie. Law school tuition was around $2,000 per semester in the mid-1980s. According to U.S. News and World Reports, for full-time law programs for the 2017-18 academic year, the average annual tuition at private law schools was $47,112. Meanwhile, U.S. News put the median private sector starting salary for 2016 law grads at a stagnant $68,375, and the median public sector starting salary for new lawyers at only $53,500. This same pattern of increasing entry costs just to earn lower incomes has repeated itself across the economy, all while expenses for necessities like child care, housing, and medical treatment have continued to balloon.

Recent polling suggests that Baby Boomers themselves recognize the problematic state of income and wealth inequality and are increasingly becoming more comfortable with something other than unchecked capitalism. Maybe that’s empathy. Maybe it’s just that more Baby Boomers are aging into eligibility to two of America’s largest existing socialist programs: Social Security and Medicare (otherwise known as “health insurance for old people”). These are among the most popular U.S. government programs in history.

In the early days of the last new century, President Theodore Roosevelt, a Republican, said, “Great corporations exist only because they are created and safeguarded by our institutions,” and that therefore it is “our right and our duty to see that they work in harmony with these institutions.” Roosevelt used the Sherman Anti-Trust Act, named after its Republican champion in the Senate, to shatter the largest corporations of the Gilded Age.

Some 30 years later, the Great Depression ravaged the U.S. economy during the presidency of Herbert Hoover. Hoover believed a free-market economy would self-correct, and he cut government spending. The Depression worsened. It took Teddy Roosevelt’s fifth cousin, the Democrat Franklin Delano Roosevelt, to end the Great Depression. FDR launched his New Deal in three waves to carry the United States out of the Great Depression. Among many other things, the New Deal gave rise to the Securities and Exchange Commission, the Social Security Act (by the 1930s, the U.S. had become the only modern industrialized country without any form of national social security), and the Fair Labor Standards Act, which mandated a minimum wage and overtime pay for American workers. Conservative businessmen contemporaries criticized the New Deal for being “too socialistic.”

With Bernie Sanders steamrolling the competition in the Democratic primary, there has been a lot of overwrought handwringing. But nothing he is proposing is really that radical, other than daring to call himself a democratic socialist. Joining every other advanced, industrialized nation in having some kind of universal health care system is not a radical idea. Providing people with the opportunity to obtain the education they need to be competitive in a global labor market, without having to go six figures into debt for it, is not a radical idea. There are many examples of this working, both historically and internationally. A whole generation is doing worse — far worse — than their parents. When our predecessors, Republican or Democrat, saw unchecked capitalism spilling over its banks, they course-corrected to achieve something better. And they didn’t let critics railing about socialism stop them.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Last week, the White House brought back Johnny McEntee, the 29-year-old former Trump body man who’d been frogmarched off the premises by John Kelly for tax and gambling issues. As head of the Presidential Personnel Office, McEntee will be overseeing an executive branch purge of disloyal saboteurs and Deep State holdovers, who are allegedly responsible for Trump’s failure to implement his glorious agenda to make America great again.

Axios reports that “Trump feels he’s surrounded by snakes and wants to clear out all the disloyal people,” so McEntee summoned representatives from each of the agencies last Thursday to draw up their lists of “political appointees across the U.S. government who are believed to be anti-Trump.” Almost 70 years to the day after Joseph McCarthy claimed, “I have here in my hand a list of 205 people that were known to the Secretary of State as being members of the Communist Party and who nevertheless are still working and shaping the policy of the State Department.” You cannot make this shit up!

And yet, that’s not the crazy part. Because who better to carry out this hunt for splittists and closet liberals than a 23-year-old college senior completing his bachelor’s degree at nearby George Washington University?

Now before you go jumping to the conclusion that James Bacon is wildly out of his depth like that other 24-year-old the White House tried to put in charge of the Office of National Drug Control Policy, we’ll have you know that this guy has held multiple positions in your federal government.

Politico reports:

James Bacon, 23, is acting as one of the right-hand men to new PPO director John McEntee, according to the officials. Bacon, a senior at George Washington University pursuing a bachelor’s degree, comes from the Department of Transportation, where he briefly worked in the policy shop. Prior to that role, while still taking classes, he worked at the Department of Housing and Urban Development, where he was a White House liaison, according to two other officials. At HUD, he distinguished himself as Secretary Ben Carson’s confidential assistant, according to two other administration officials.

Plus he worked with McEntee on the Trump campaign. So he’s totally equipped to differentiate between at-will political appointees and civil servants with legal protections. Although, apparently, that’s no longer an issue in the Trump administration.

Here’s Trump spokesman Hogan Gidley (yes, that’s his real name) confirming Axios’s reporting to Fox.

“Time and time again we see in the media reports from people in the bowels of the federal government working against this president,” thundered Gidley, before moving on to the obligatory Peter Strzok and Lisa Page reference.

When asked if the federal employees on McEntee’s lists would be fired, Gidley responded, “It’s not a secret that we want people in positions that work with this president, not against him, and too often we have people in this government—I mean the federal government is massive, with millions of people—and there are a lot people out there working against this president and if we find them, we’ll take appropriate action.”

It’s not clear which “millions” of federal employees Gidley thinks owe personal fealty to the president. As Government Executive reports, there are only about 4,000 political appointees across the entire executive branch. Why Gidley thinks he’s entitled to purge the bowels of the federal government is unclear. But don’t worry, because the former UConn quarterback and some 23-year-old from GW will doubtless be familiar with the vagaries of federal employee protections and refrain from improper retaliation against expressions of opinion protected by the First Amendment.

Or perhaps not.

A new senior leader at the White House personnel office: A college senior [Politico]
White House Confirms It’s Purging Disloyal Employees ‘From the Bowels of the Federal Government’ [Government Executive]
Ex-Trump aide John McEntee to lead White House office of personnel [Axios]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Today marks a historic step forward in addressing the ongoing mental health crisis in the legal profession. Future generations of New York lawyers no longer need to live in fear that bravely and smartly seeking treatment for mental health issues could one day derail their careers.

— New York State Bar Association President Henry M. Greenberg, in comments given following an announcement by Chief Judge Janet DiFiore of the New York Court of Appeals that the State Bar’s proposal to remove mental health-related questions from the New York bar application had been approved. DiFiore noted in her State of the Judiciary address that “the amended application will no longer ask intrusive questions about a candidate’s mental health conditions or treatment history.” New York is the eleventh state to remove questions about mental health treatment from its state bar application.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

We’re still in the middle of the administration of the February 2020 bar exam — some test takers will be finished today, and some still have one more day to go. Whether or not you passed or failed, whether or not you experienced any of the bar exam horror stories we’ll shared with you over the next couple of days, you will not have a story as dramatic as this California test taker.

Tipsters report that at the Oakland Convention Center, someone had an epileptic seizure while the instructions were being given. Here are the details:

Around 8:40 a.m., as the preliminary announcements were underway, a test taker suffered a seizure. A combination of proctors and fellow test takers with medical training came to his assistance, moved him onto the ground on his side, and 911 was called. It took maybe 15 minutes for paramedics to show up (certainly more than 10) during which time the individual either had difficulty breathing or may have stopped breathing according to what those treating him were saying. Fortunately he came back from being seemingly touch and go after a few minutes and seemed to regain consciousness and was even able to respond to those treating him prior to the arrival of paramedics.

Paramedics arrived and treated him and eventually took him away on a stretcher, about 30 or so minutes following the start of the incident.

Kudos to those on site, proctors and test takers, who rushed to this person’s aid to take care of him until paramedics arrived. There didn’t seem to be much protocol in place for how to handle (especially given that there weren’t many people with phones) but those who knew how to help did. I haven’t witnessed a seizure up close before, but seeing as how he stopped breathing for a time, and how long it took help to arrive, those present certainly may have helped save this person’s life by administering prompt assistance before the professions appeared. (Not to make light of the incident in any way, but because we’re talking about the bar, I will note that we fortunately did not have a case of negligent rescuers here — those present were awesome, including keeping those with no training away to not get in the way of those who knew what they were doing.)

The room gave a round of applause to the individual as he was wheeled away. Hopefully he is recovering okay. It would be pure speculation to say whether the stress of the exam had anything to do with this, but it was certainly a perspective-inducing event to kick off the day.

The instructions announcer resumed on script as soon as the individual had been taken away, approximately 35 minutes after the start of the incident. The instructor paused when reading part of the instructions (though he stuck to script) when he said, “In the unlikely event of an emergency… do x, y, z…”

Another tipster says that as the test taker was wheeled away on the stretcher — laptop still in his lap — he gave a thumbs up to everyone in the room. We certainly hope that everyone fared well on the test after witnessing such a frightful start to the day.

What was the craziest thing that happened during the February 2020 bar exam? If you survived or witnessed some horror story in action, let us know. You can email it to us (subject line: “Bar Exam Horror Story”) or text us (646-820-8477).

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Frequently, a business deal is ironed out away from the office. People get to know each other over dinner while the local jazz band is playing on stage. Details are discussed during a round of golf. Candid and confidential opinions can be disclosed at a ball game, usually after a few beers.

Before 2018, 50% of food and entertainment expenses incurred for a business purpose were tax-deductible. But after the passage of the Tax Cuts and Jobs Act, entertainment expenses are no longer tax deductible.

Most people might just shrug and just deal with it. After all, it is one less expenditure to account for which would make their lives (and that of their tax preparer) easier. But when people regularly take clients or potential clients out for dinner and entertainment, these expenses can add up. Not only that, entertainment can be expensive. For example, when looking at average NFL ticket prices, a ticket to a New England Patriots game can cost over $500, while tickets to even some team in Detroit can cost $120 per person. So for some, taking the food and entertainment deduction can provide significant tax savings. And there will be some people who will try to push the envelope on the definition of “entertainment.”

A few days ago, the IRS issued proposed regulations which clarified what kind of expenses constitute entertainment. It also explained what requirements must be met before a food expense is deductible.

The proposed regulations provide that the following must be met for a meal expense to be deductible:

• The expense is not lavish or extravagant under the circumstances. The regulations do not go into details but it’s safe to assume that the IRS will not allow the cost of a Michelin three-star meal covered in gold flakes for the taxpayer and a random potential client to discuss a parking ticket violation.
• The taxpayer, or the taxpayer’s employee is present when the food is presented, and
• The food is also provided to a business associate.

So who is a “business associate”? The regulation defines business associate as “a person with whom the taxpayer could reasonably expect to engage or deal in the active conduct of the taxpayer’s trade or business such as the taxpayer’s client, customer, supplier, employee, agent, partner, or professional adviser, whether established or prospective.

The key word here is prospective. If your typical clientele is the average person, or if you hire people from all backgrounds and skill sets, anyone can be a prospective client or employee. On the other hand, if you are in a specialized field or sell things like commercial aircraft or Bugatti Veyrons, only certain people are “reasonably” likely to be a client or employee. To maximize chances of success at an audit, have a log of who you met (and possibly credentials if needed), where you ate, and the business topics discussed.

The proposed regulations also discuss what is an “entertainment expense” as many will try to find creative ways to avoid that definition. It states that no deduction will be allowed for any expense of a type that is generally considered to be entertainment activity. The term entertainment can include an activity, the cost of which otherwise is a business expense of the taxpayer, which satisfies the personal, living, or family needs of any individual, such as a hotel suite or an automobile to a business customer or the customer’s family.

It specifically calls out membership fees for social, athletic, or sporting clubs or organizations. This can be problematic for networking groups that charge a membership fee. For example, there are certain informal bar associations whose only activities are social meetings with no CLEs, or other activities that support the legal profession or the professional development of their members.

But depending on the trade or business of the taxpayer and the context of the activity, an expense might be deductible even though it might appear to be entertainment related. The regulations give an example of a theater critic paying to attend a theatrical performance. This expense would not be considered an entertainment expense for the theater critic so long as he attended on a professional capacity.

So what about the common situations where food is provided with the entertainment? In this case, the food expense must be listed separately from entertainment expense in order for the food expense to be deductible. If the entertainment and food expense is not listed separately, the entire expense is disallowed.

For example, if I were to purchase a luxury suite at the Staples Center to watch a game with a client, I should ask that the price of the food be separately listed on the receipt. This way, while I cannot deduct the cost of the suite, I can deduct 50% of the cost of the food. If the cost of the food was not separately listed, I cannot deduct the expense.

Finally, the price of the food must reflect the venue’s usual selling cost if sold separately. This prevents a tactic to get around the entertainment nondeductibility rule by inflating the price of the food while minimizing or eliminating the entertainment fee.

Considering that the economy has been fairly good, the entertainment nondeductibility rule probably didn’t affect many people’s behavior. From my observations, most small businesses either forget to take the deduction or don’t want to deal with the cumbersome recordkeeping rules.

And some don’t claim them because they don’t want to trigger an audit. And they are wise to take this precaution. In most cases, tax auditors are very skeptical of entertainment expenses and excessive meal expenses, especially (and frustratingly) for small businesses. While they can be winnable if proper records are kept, unfortunately, a lot of times, an auditor simply will not believe that the expenses have a business purpose. Or they will think the cost is unreasonable. Sometimes, taxpayers will appeal an unfavorable but erroneous decision. Other times, they will not if doing so isn’t worth it in the bigger scheme of things.

Entertainment venues will be pressured by customers or tax advisors to separate out the food expenses on their invoices or receipts. Large venues can do this but it might be harder for smaller businesses if they don’t have the staff or billing software to do so.

Whether business can be mixed with pleasure is debatable. But for now, the tax laws say that they cannot. Because of the very broad and straightforward language in the statute and the recently released proposed regulations, there probably aren’t many ways to creatively get around this rule. If you think otherwise, please feel free to email me your thoughts. In the meantime, I don’t see many businesses giving up their luxury suites or hunting retreats anytime soon because of this.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

It’s always been a little unfair to characterize the American Constitution Society as the “liberal Federalist Society” because while both hold events inviting speakers to law school campuses to discuss the law, ACS stops short of sucking in massive dark money donations to dictate and push judicial appointments for the administration. Even though Leonard Leo has departed from day-to-day management of the entity to raise even more shadowy money, the organization continues to collect big checks and turn that money into big influence while pretending people are stupid enough to believe it’s “a network that connects thousands of scholars, students, and lawyers” that just love Chick-fil-A.

To the extent the gap between the influence of ACS and the Federalist Society springs from the latter’s commitment to raising massive amounts of cash while not disclosing its donors, it’s somewhat poetic that ACS will put the issue of the dangers of unlimited and unaccountable fundraising in politics front and center through the choice of its new president.

Former Wisconsin Senator Russ Feingold, best known for his work trying to clean up campaign finance — before the Supreme Court reversed 100 years of precedent to help out the FedSoc donors who invite them on hunting trips — will take the leadership role.

In addition to basically being a permanent subtweet, installing Feingold as the face of the organization boosts the group’s profile with a veteran of the Washington media market to shop to picky bookers. It shouldn’t matter who the head of ACS is when looking for an expert to discuss the impact of a Supreme Court opinion, but unfortunately that’s the world we live in.

“We couldn’t be more excited to have Russ join us at this pivotal time for ACS,” said newly elected ACS Board Chair Peter Karanjia. “Every day brings new challenges to our democracy and I’m confident that, under Russ’s leadership, ACS will be well positioned to meet those challenges. Russ’s integrity and intellect command respect from all corners of the legal and policy community, and his track record of working collaboratively with diverse stakeholders to uphold our constitutional values makes Russ an ideal choice as ACS begins a new chapter ahead of its 20^th Anniversary.”

ACS will never truly be “liberal FedSoc” for a lot of reasons, but perhaps Feingold’s first project at ACS could be developing a good brand name for a “liberal Originalism.” If anyone understands the value of a catchy phrase it would be a former politician.

Earlier: Man In FedSoc In Denial About What FedSoc Is Actually About
Leonard Leo Launches Exciting Plan To Save Judiciary With *Even More* Dark Money
Supreme Court Takes Aim At Scalia ‘Originalism’ Opinion Promising Even ‘Originaler’ One Now That Republicans Want A Different Result

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

For more than a year, activist hedge fund manager Edward Bramson has been agitating for Barclays to get rid of its investment bank, because it sucks. After for more than a year, Barclays CEO Jes Staley has held off his bizarro doppelgänger—rather triumphally, it must be said. Well, Bramson hasn’t sold his shares and gone back to Connecticut. Having, as he says, “the necessary resources to engage constructively with the company for as long as possible,” Bramson has been biding his time. For this, as it turns out.

Even though people may say that they don’t have favorites, favoritism is a fact of life for all of us. As one of five boys (I’m a triplet and my older brothers are twins, if you can believe it), I could tell that my late parents liked some of their kids more than others, even if they said they didn’t have favorites. It’s just natural that individuals get along better with certain types of people, and it is hard to avoid having favorites among a group. However, it is important that even if you have favorites, you should try not to show favoritism in a number of circumstances. This applies to law firm partners, and managers at law firms shouldn’t show favoritism toward associates because this can lead to a number of negative outcomes.

Let me say at the onset that partners should absolutely promote and favor associates who are better at performing their jobs. Partners can use a number of objective metrics to assess associates, and partners are justified in favoring associates who are simply better lawyers. However, there are a number of problems with partners favoring associates who have personalities that mesh better with the brass at a shop or are more socially involved with partners and important people at a firm.

I worked at a number of different law firms of all sizes before I started my own practice around a year ago. During this time, I worked at firms where I was treated better since I was part of the “in crowd” of a firm, and at shops where I definitely did not mesh with firm management. These experiences have taught me how showing favoritism toward associates based on subjective factors can have a number of consequences at a law firm.

For one, showing favoritism towards associates can have a negative impact on morale. No one wants to feel like they are being treated worse because of factors largely outside of their control. For instance, I once worked at a shop that paid thousands of dollars for some favored associates to attend conferences and trainings across the country. The expenses were purportedly justified so that these attorneys could network and obtain the CLE credits they needed to meet bar requirements.

For a variety of reasons, I was definitely not part of the “in crowd” at this firm. While working at this shop, I asked for permission to have the firm spend a few hundred dollars to attend a whole-day CLE event so that I could complete all of my live CLE credits for the year at once. Despite the fact that the firm had approved thousands of dollars in expenses for others to attend trainings, I was not given permission to spend a fraction of this sum on my request. I never received a good reason for why my request was declined, and since the live CLE classes were only a few hundred dollars, there wasn’t a good reason to reject my request. It was apparent that partners were simply showing favoritism toward some associates over others, and this negatively impacted the way I felt about the firm.

Another reason why partners shouldn’t show favoritism toward associates is because this may open partners up to criticism that they are favoring attorneys based on their gender or other similar reasons. For instance, I once worked at a firm that needed to get associates individually approved by a certain client for attorneys to perform work for that account. There did not appear to be any specific criteria to be approved to do work for this specific client other than being nominated by one partner, since it never seemed like a candidate was rejected by this client. Associates wanted to be approved to do work for this client, since this could increase the amount of matters an associate could be tasked to handle, and this might lead to an associate billing more time and hopefully receiving a higher bonus.

The partner responsible for this account decided to submit the names of all the attorneys he liked to perform work with to the client so that he could work most closely with associates he favored. On a certain level, it makes sense that a partner would want to work with associates she or he likes the most, since partners need to interact with associates they work with a lot more than other associates employed by a firm. However, one of the associates noticed that at a certain time, many of the associates authorized to perform work for this client were men. I’m not entirely sure there was a significant gender disparity among associates who worked on this account, but the partner involved with this client was an old-school type of male lawyer, and it could be perceived that he favored male associates. In any case, no one likes to be excluded, and if the partner made decisions based on objective criteria rather than how much he liked associates, the partner would have never been open to this criticism.

All told, it is difficult to avoid favoritism, whether it be in your family or in the workplace. However, partners should not show favoritism toward associates and should evaluate attorneys based on objective criteria. In this way, partners can help maintain morale at a firm and lower the risk of being accused of favoring attorneys for illicit reasons.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.