Category: News Feeds

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Haley Harlan to our pages. Click here if you’d like to donate to MothersEsquire.

I sat on my couch, two weeks after my 2L finals had ended, staring at the word “PREGNANT” on my digital test. I was thrilled! After a surgery for endometriosis and the complications that followed, being able to get pregnant felt like a miracle. I was also terrified. I had worked hard in law school to get good grades, to make the Law Review board, and I had been elected as the Student Bar Association president just weeks prior. To add to my stress, I had chosen to work at small firms in law school, and I had no post-graduation job options on the horizon. I had already wondered why I had piled my plate so full, and now I was going to add a baby?!

As the weeks passed, I was filled with a range of emotions. Seeing my daughter’s heartbeat on the ultrasound was one of the happiest days of my life. However, the thought of telling my peers, boss, and professors only added to first-trimester nausea. The advice I had received since I began thinking about entering the profession ran through my head. Having a baby while still in law school was not consistent with “getting established before starting a family.” I could hear the voices of the well-meaning women that told me they planned their pregnancies around their work schedules, how some of their peers were “mommy-tracked,” and how some women “just couldn’t handle it.” As I started 3L, I sat in an employment discrimination class, where I heard the stories of women who were passed over for promotions because of their toddlers, who did not receive pregnancy accommodations, and who had their job offers rescinded because of their pregnancies.

Despite my fears, everyone was thrilled for my growing family. My school’s career center helped me identify jobs that aligned with my goals. At six months pregnant, I accepted a job as a staff attorney for the federal courts. I had my daughter the day my last semester of school started, and when I came back two weeks later, my professors accommodated my need for pumping breaks, and even reassured me I could bring her to class if the need arose. My daughter came with me to my meetings, and my friends took turns holding her while I led discussions. She even made it on my dean’s Instagram in her I Love WashU Law onesie. Now, one and a half years after graduation, I see the benefits that having a child early in my career has given me.

Having my daughter forced me to learn critical professional skills before starting my career. I learned to delegate when she arrived, because for the first time in my life, it was not possible to do it all. As the SBA president, I leaned on the executive board when I took the first month of my daughter’s life off. Much to my surprise, the sky did not fall when I gave up my micromanaging tendencies, and I have not looked back. I also learned how to set boundaries. There were events I could not attend, opportunities I had to pass up, and jobs I had to take off of my list. Instead of justifying myself every time I turned something down, I learned people would understand if I had to say no. I learned to juggle my responsibilities. While still in law school, I figured out that there would be times I had to put work first, and times I had to put family first. When I studied for the bar, I set a schedule that allowed me to see my 4-month-old daughter as much as possible. This meant I studied less than I had planned, and less than many of my peers, but the balance worked for our family.

Having a baby in law school also allowed me to have a lot of flexibility in the early days of motherhood. I was able to arrange my schedule so that I only had night classes and classes over spring break and on weekends. I was able to take time for myself when I went to class, which was invaluable in early motherhood. I also had ample time to bond with my daughter, which was also irreplaceable in early motherhood. Without the stress of a typical maternity leave and then jumping back in to work head first, I had eight months home before starting full-time work. I will always cherish the early days of skin-to-skin snuggles and our summer adventures touring St. Louis.

It was not always easy to balance being a new mom and a new attorney. I didn’t have the flexibility in my home life or my professional life that I saw some more established mothers have. There were times my childcare fell through, and I felt immense guilt missing days in a job I had just started. I missed out on social opportunities and professional opportunities. Despite the challenges I have had on this path, I am so glad I have spent my entire career as a lawyer also being a mother.

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Haley Harlan graduated from Washington University School of Law in 2019 with her four-month-old daughter sleeping in the audience. She started her career as a staff attorney for the federal courts, and now she works as an assistant state’s attorney in the Chicagoland area. When she is not chasing a toddler or preparing for court, she enjoys cooking, reading, and riding her Peloton. You can connect with Haley at haleynharlan@gmail.com or on LinkedIn.

The novel coronavirus continues its rapid spread across the country, with cases increasing exponentially by the day. Just yesterday, the U.S. set a record COVID-19 death toll of 3,124, breaking last week’s record of 2,885. Hospitals are edging ever closer to being overrun and state mask mandates are spreading almost as quickly as the virus itself. To say that things do not look good would be an understatement.

Thankfully, a vaccine is poised to be approved for emergency use by the FDA perhaps sometime today, and at this rate, it can’t happen soon enough. With hopes pinned high on the vaccine’s potential to put an end to the pandemic, it got us wondering what Biglaw firms intended to do. While some firms never shut down, most were quick to adopt policies that pushed their attorneys and staff into virtual workspaces, with many committing to keep business online until at least the end of 2020.

With a vaccine on the horizon, just how quickly will law firms step away from remote work and formally reopen their offices? Will you be expected to return to work?

Help us help you. Please click the button below to take our survey on your firm’s plans during this unprecedented time. We’ll compile the data and let you compare and contrast between firms. As always, you will be kept completely anonymous. Thanks!

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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.

Amidst all of the ambient horrors and immiseration and the howling incompetence and venality that, if they didn’t bring them about have certainly exacerbated them by several orders of magnitude, as well as the indisputable shrinking of the economy it is at least nominally alleged to track, it is inarguably true that the stock market keeps going up, hitting new records in tandem with those being set in COVID-19 infections, hospitalizations and deaths. And so it is no surprise that records are also being set in getting companies onto the stock market.

It’s been a wild year for noted Biglaw firm Boies Schiller & Flexner. Sure, sure, there was the global pandemic and social upheaval — but that’s what everyone’s been dealing with. BSF’s also had to manage a run of speculation about the future of the firm and partner defections, which they maintain is all part of a deliberate restructuring which put Natasha Harrison in the role of deputy chair and heir apparent to David Boies as chair.

Back in June, the firm announced that part of the changes would include revamping their notorious bonus system. For a long time, the firm prided itself on its generous bonus formula that includes a revenue share component that affords associates a cut of the matters they work on, which for contingency work can be massive. While it’s true the system can lead to some eye-popping bonuses, there’s also been criticism of the Boies bonus structure’s opacity. And while junior associates often make out better than peers at other firms, senior associates don’t always compare favorably to the market standard. And one slow year at the firm had compounding effects, as associates who failed to hit their minimum hours were “in the red,” and had to make up the hours the following year.

But the new system BSF hit upon allows associates something almost unheard of in Biglaw — a choice. Associates can opt into the tradition formula compensation model, or they can select market compensation. I spoke with Harrison and she said ~40 percent of associates picked market bonuses this year (associates had to make their choice in the spring).

So what’s the deal with the new (for BSF) market system? Those market bonuses are in line with Cravath bonuses, and account for the special bonuses sweeping Biglaw as well. Usually market bonuses will have an hours requirement — 1900 billable hours and 100 nonbillable hours with things like diversity training and business development counting towards that total for a more holistic accounting of what associates actually spend their time doing. However, due to… everything in 2020, the firm has relaxed that hours requirement this year.

But what about those — most of the associates, in fact — that opted for the formula bonuses? Well, they did alright for themselves, generally exceeding market compensation. And yes, those shockingly large bonus numbers are still in play at the firm. A senior associate took home a $450,000 bonus this year. And a handful of junior associates (we’re talking 2017/2018 grads) made $200,000 bonuses! That’s more than double what they’d expect on the market scale.

Harrison said the changes to bonuses have been in the works for a while, and at the start of the year she met with associates to discuss their issues and concerns and what they really wanted from a compensation system. And, importantly, the resulting system gives associates something they don’t always have in Biglaw: options.

As always, we depend on you when it comes to bonus news. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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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).

* Rapper Lil Wayne is due to make his first court appearance related to a weapons bust that took place on a private plane last year. Wonder if the judge will call him “Lil Wayne” in court… [All Hip Hop]

* Home Depot has settled a multimillion-dollar class-action related to a data breach. [National Law Review]

* Facebook has finally been hit with long-anticipated antitrust litigation. [NPR]

* Hunter Biden is allegedly under investigation for tax issues. [Guardian]

* Vermont Law School is considering a move to Burlington, Vermont. Would be a good decision, Burlington is a nice town. [VT Digger]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to Vault’s 2021 practice area rankings, which Biglaw firm is ranked highest in clean tech/renewable energy practice?

Hint: The California-based firm founded in the 1800s found early success in their involvement in the financing of the Golden Gate Bridge.

See the answer on the next page.

U.S. District Judge Emmet Sullivan is not so much with that “not with a bang, but with a whimper” stuff. If President Trump and Attorney General Bill Barr want to whip up a get-out-of-jail-free card for Michael Flynn, the court can’t stop them. But they, in turn, cannot stop Judge Sullivan from pointing out the rank, swamp gas odor of corruption emanating from every part of this case since Bill Barr interceded to blow up the prosecution.

Yesterday the court denied the government’s motion to dismiss the case against Flynn based on Rule 48(a), but granted the consent motion to dismiss, since the prosecution is now mooted by the president’s post-election pardon.

“Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Judge Sullivan wrote, but with the caveat that “On the other hand, a pardon does not necessarily render ‘innocent’ a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a ‘confession’ of guilt.”

Indeed, the opinion notes that Flynn confessed multiple times under oath to his guilt on the charge of lying to the FBI and to the additional, uncharged illegal failure to register as an agent of a foreign government.

But Judge Sullivan’s harshest criticism is directed at the Justice Department, which decided more than two years after Flynn signed the first plea agreement that his lies to the FBI weren’t actually material after all and, oh, hey, maybe Flynn didn’t even know he was lying anyway. Maybe he just forgot that he’d called the Russian ambassador up on December 29 and promised that Donald Trump would undo Obama’s sanctions after the inauguration. Sure, the call had been the subject of reports in the Washington Post and the Wall Street Journal, but it could have just slipped the poor National Security Advisor’s mind when those scary FBI agents asked him about it all those long months later on January 22.

Or, as Judge Sullivan puts it:

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office.

So much for the government’s belated realization that it was “doubtful that it could prove the falsity of Mr. Flynn’s statements.”

As to the DOJ’s contention that Flynn’s lies, if that’s what they were, were immaterial, Judge Sullivan notes drily that “the government relies on a newly-minted definition of ‘materiality’ that is more circumscribed than the standard in this Circuit.” Would that every defendant charged with violating 18 U.S. Code § 1001 could avail himself of such a generous definition of materiality, but judging by the Justice Department’s treatment of FBI lawyer Kevin Clinesmith, this seems like a ticket good for one ride only.

Judge Sullivan is not having it with the government’s change of heart after months of declaring that Flynn’s lies actively hampered the Mueller investigation.

In view of the government’s previous argument in this case that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s investigation, the government’s about-face, without explanation, raises concerns about the regularity of its decision-making process.

The word “pretextual” appears in the opinion multiple times, with the court expressing heavy skepticism that President Trump’s constant tweeting about Flynn and discussion of the case with Flynn’s new lawyer Sidney Powell had nothing whatsoever to do with the DOJ’s changed position.

“Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss,” Judge Sullivan wrote, adding later, “Where, as here, the government justifies its motion by ignoring applicable law to now question the strength of its case, substantial doubt arises about the government’s stated reasons for seeking dismissal.”

Apparently Judge Sullivan, like the 2,300 former Justice Department employees who signed an open letter demanding the attorney general’s resignation, was unimpressed with Bill Barr’s protests to CBS that he was simply defending poor, put upon Michael Flynn’s rights, and “the groups that usually worry about civil liberties and making sure that there’s proper procedures followed and standards set seem to be ignoring it and willing to destroy people’s lives and see great injustices done.”

But the presidential pardon pen is a powerful weapon, so the court had no choice by to release Michael Flynn back into the wild to flog Qanon loonery and cash those sweetsweet wingnut welfare checks. The world is not a fair place.

Sometimes the bear eats you.

Memorandum Opinion [US v. Flynn No. Case 1:17-cr-00232-EGS (D.D.C. December 8, 2020)]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Aiding and abetting child slavery is bad. One would hope that’s a fairly uncontroversial statement. Last week, the Supreme Court heard argument on a case about possible liability for Nestle and Cargill for human rights violations that occurred in Africa as part of the food giants’ supply chains. The case generated harsh criticism as a defense of child slavery — which it wasn’t technically. It also inspired some high-minded defenses about separating attorneys from the stances they take on behalf of clients — which is dumb.

But this chasm between scorched earth criticism and uncritical dismissiveness, highlights some festering issues with the profession, all based upon the fictions upon fictions we’re asked to swallow when we champion this messy system.

The New Republic has an article from Alex Pareene titled Neal Katyal and the Depravity of Big Law charting the historical development of the status quo “right to counsel” mythology. What was once understood specifically as the constitutional bulwark against the awesome power of the state in criminal cases slowly morphed over the course of the 20th century into a catch-all defense of lawyers taking on unpopular corporate clients. And while I’d argue that the evolution of the right to counsel to cover civil litigation — which can devastate people these days as surely as a prosecution — is a positive development that should be pushed even further, that’s properly a reason to provide civil legal services to the downtrodden, not a teflon shield for attorneys taking money from deep-pocketed pariahs to perform work exacerbating their advantages over the rest of us.

That’s a shield that we’re always quick to puncture at Above the Law. When Jones Day goes out and tries to disenfranchise the American electorate and then weasels around that it doesn’t represent “Trump,” just the sock puppet organizations that Trump controls, and pleads with everyone to respect their efforts because everyone deserves a lawyer, they get rightly scorched. As we’ve said before, lawyers shouldn’t be punished “as lawyers” for their clients, but they can be punished as businesspeople for their clients. If you want to defend Nazis based on general First Amendment grounds, go ahead. Some folks will accept that high-minded justification, but if other clients or potential co-workers judge you negatively for it, that’s the natural and logical consequence of this decision. Don’t whine about these things and certainly don’t pretend some superficial Schoolhouse Rock vision of the judicial system shields Jones Day as if they have some divine right for mainstream clients to overlook the firm’s wingnut advocacy.

As for the recent Supreme Court argument, the facts of the case are certainly horrific, but the position that the Alien Tort Statute doesn’t cover Nestle or Cargill here isn’t outlandish on its face. Katyal even notes that other avenues exist for bringing claims against the companies on this set of allegations. If the statute is wrong, it’s not up to the courts to rewrite it to fit the case. That’s the lawyerly answer anyway.

Except even if it’s true — and Justice Kagan seemed very convinced that it isn’t — that the ATS doesn’t go this far, this argument requires believing that America is still a functional Republic at this point. Congress is struggling to pass a bipartisan bill about a raging pandemic, they aren’t about to have a serious conversation about the scope of a 1789 law. And the childish yet prevailing worldview that courts need to play linguistic games to hew to the narrowest read possible isn’t sparking new and more detail-oriented lawmaking, it just locks in the status quo, usually to the detriment of the marginalized. On the other hand, are we better off asking the courts to usurp the role of the legislature out of necessity? That’s… ominous. But if that is where we are, doesn’t that redouble the need for lawyers to be more than mere advocates and function with the accountability of true policymakers?

The push and pull of these forces are how we end up in this hellscape because the cabined role of every actor — lawyer, judge, lawmaker, executive, international body — just results in no one being in a position to take responsibility.

Ultimately, the profession is as messy as it is important. The only solution is to keep clear-eyed about it and reject the nonsensical “Love Your Lawyer Day” platitudes. No, Biglaw isn’t depraved, at least not any more than any other node in this headless structure, but Pareene is right that it’s not helping anyone to assume law firms can hermetically seal themselves off from the practical impact of their arguments. It’s important to engage, question, and push lawyers, but also to contextualize the arguments and spread the responsibility accordingly.

Or to put it more simply, when aiding and abetting child slavery amounts to a colorable question of law, the problem runs way deeper than the moment any law firm got involved.

Neal Katyal and the Depravity of Big Law [The New Republic]

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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.