Alienating Our Affections

0:11Elie Mystal:Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by some other Above the Law folks. I got Kathryn Rubino here, as well as Chris Williams. Hey. And we're doing what we do every week, which is talk about the big stories from the week that was in legal. But first, we have a little bit of small talk always small talk yeah i think we're all happy that none of us live in the uh in like we live as north as we do so we are not going to get this like killer storm that's apparently closing in on the mid-atlantic that's something yeah don't jinx it yeah that's also true that's fair i i've not seen any maps that suggest it comes our way but uh yeah i saw i opened it up this morning and saw somebody predicting that they're going to get like 30 inches on like the North Carolina border.

1:04That is a lot for North Carolina.

1:06Elie Mystal:Seems like a lot for there. I mean, to be fair, it's a lot, you know. That's a lot. Yeah. Yeah, just generally, but particularly for places that shut down for an inch and a half. Yeah. So we'll see how that goes for them. Hopefully, everybody's all right. And I did see another counter report that said it was going to be like four inches, which I think still is probably a lot for them. But the between 21 and 35 prediction, I thought, was a little insane. Does seem a bit ridiculous. Yeah. Thankfully, we're not there. I got a solid like three or four inches. I felt pretty good about that. Well, there you go.

1:44Elie Mystal:Yeah. Do anything interesting for Milk Day? Did not. Well, I mean, you know, and I should have had, since you're calling it Milk Day, I assume you're not talking about Martin Luther King Day. but instead the administration's new commitment to whole milk. The white supremacist drink, remember? Yeah, yeah. Well, so I've seen a lot of people talk about this, and I think the conspiracy theory is right. I mean, whole milk, it's not like it's been gone. Like people drink whole milk. It's readily available. I don't think there's anything there. Yes, I have a toddler. It is always an option. Very available.

2:21Elie Mystal:Well, I really do believe that, especially given the like touchstone of it, like, you know, we're finally bringing it back. And it's like it's never left. I agree with the conspiracy people that this was going to be their effort to bring back raw milk. And some lawyers got involved and said, do you understand that you're stupid and you will get sued? My reason why I don't necessarily believe this conspiracy theory is that I don't believe anyone has the ability to say stop to this current administration. situation i i mean i i we're trying to invade greenland i don't think anybody has the ability to say stop i think that maybe that would be an instance where somebody be like hey this is dumb since there seems to be no particular reason that he wants greenland but you know here we are yeah i will say that the dumbest milk thing that i've seen uh was where i was like oh these people lack the reading comprehension to know they lack the reading comprehension uh there was a recipe where some dude bro insisted on the importance of raw milk for a recipe that involved boiling the milk.

3:27And I'm like, we call that a thing. The right is reinventing pasteurization all on their own. Yeah. But actually, I do want to mention something about Martin Luther King since that's the milk day. I had a good one. Didn't do any acts of service. I stayed in-house, but it was a little too cold. But shout out to anybody out there that did. And if you got a message from some partner talking about the importance of MLK that veered into talking about Charlie Kirk and whatnot, which had to have happened to somebody, make sure to let us know at TIPS. Because that's a story. Those are side stories we love to cover.

4:05And by we, I mean me. It's TIPS at AboveTheLaw.com.

4:10Elie Mystal:Yeah, no. raw milk all i ever think of of raw milk was i think it was the west virginia yeah west virginia legislature tried to legalize it as some kind of like right wing proto-maha it was before robert kennedy but like tried to legalize it and they all drank raw milk on the floor and then all of them had violent stomach pains afterwards yeah that's my thing like as a person that has been to a farm and had has seen the conditions that cows are kept in i don't want that not cleaned up in some way like have y 'all been to farms and seen the milk process i mean yeah it's like there's there's blood and pus and you know the farmers are not washing their hands there's no way there's like there's not a sink next to the udder you know so it's like at who's who's drinking out of their own volition you know i mean i i think i understand a little bit to some extent i understand the raw milk thing i think there are cheeses and things like that that can be made with raw milk that we probably overregulate uh but because you know the cheese process should take care of some of the health issues but yeah no like it's just dumb to drink raw milk like people used to die and then we fixed it you know like me but i guess that's how vaccines work too i guess yeah all right well we should probably talk about other stories and move on with our our agenda uh so this week we had, I actually, a little bit of a preface.

5:36Elie Mystal:I was asked a couple weeks ago, what law, big law and law firms are single tier partnerships versus multi tier partnerships. And I gave the ever dwindling list of firms that continue to only have a single equity tier for partners. And it was a short list. And people said to me, like, wow, is that all there is? And I was like, yeah, The good news is that at this point, this core group, they've held out this long. It strikes me as though they're going to hold out forever. Like all the incentives were to change a couple of years ago, and now they've held out. So whatever. Since then, more firms have changed.

6:15Elie Mystal:So I guess I was wrong. But we had another one of these happen just last week. Yeah, S &C Sullivan and Cromwell decided to veer away from the single tier partnership. I will say so every year at the when Amlaw puts out all of its financial information, they also include in that data dump a list of the single tier partnerships. So every year that is one of the trivia questions that I wind up asking. And it is funny to go year to year and see the number that have fallen off. And I think that for, you know, this year's trivia question, which will, of course, be based on the 2025 information, you're going to see at least five or six come off of that list.

6:53Like last year, 2025 was just a really big year for firms that you really that you thought were going to be the holdouts kind of coming off the list. And I think that, you know, S &C is just, you know, another one of those.

7:07Elie Mystal:It's unfortunate, I feel, because I think speaking, there is a world in which having a multi-tier partnership is a good thing. That it allows people more flexibility who don't necessarily want to be owners of the firm but do want to advance their career and make more money. Like it makes some sense. We have talked about on, you know, in both in writing and on this show that that's not really how these deals tend to work out. They tend to be used, they historically had been used as kind of a way to get around certain diversity requirements to kind of make a mockery of efforts that clients were making to say, we need a more diverse team of partners that we work with, you know, promote firms moving folks up.

7:54Elie Mystal:Instead, they got shunted into this partner in name only position, which isn't good. I also think that we're staring down a situation where the aging partners are just refusing to share. You know, we 100 years, we everybody kind of understood that a certain point you step aside and the business moves on with someone else in charge. And that seems to just not be happening. And I actually think we're going to start seeing in probably are already a situation where there just aren't partner young partners made ever. That the old guard keeps their shares and they start moving towards a regular C-suite situation where they hire managers to run the business and they don't need to make partners.

8:41The first thing I want to say is I definitely think that the income level of partnership was kind of created as this kind of weighing area. And I think that sort of shunting off diversity requirements has become a part of the story for sure. But I also think it's necessary for some of the larger firms. I don't mean necessarily even in terms of revenue, but just in terms of the number of bodies that they sort of have every year. Because, you know, the big law model is up and out, right? You either are advancing to the next level. You're either a first year, then a second year, then a third year, et cetera, all the way up to partnership, or you're out of the firm, right?

9:17And sometimes people are just good at what they're doing, you know, and that's okay. And the previous sort of iteration of this was the of counsel kind of designation. And that got really murky and ill-defined and no one really knew what it was. And it felt like, oh, you failed at making partner where it wasn't necessarily meant to be that, at least at some firms. And I think that there was kind of another tier that was necessary to say, hey, you're great at this. But that doesn't necessarily mean you're a rainmaker or you're, you know, there's another level. And I think it's also really interesting that you're always advancing and always moving up and always kind of getting your next level promotion until what maybe your eighth year.

9:57And then all of a sudden it's flat. Yes, partner. And I think that that's weird for an industry.

10:02Elie Mystal:Yeah, I think that it's bad in a lot of levels. I think that it can become a golden handcuff situation where people get way too much money to not actually advance their career. But like where are they going to go? They're already making so much money, which I think is bad for everybody. I think it creates a stigma for those folks trying to move to another place to move on to advance if they didn't make. I also think that it really messes with different business groups. You know, like the nature of transactional work is that there are some practice areas that are not revenue generators. Yeah, they're servicing clients.

10:38Right.

10:38Elie Mystal:They are part of a team. and the now why would you give that person a stake if you're just doing chasing money and that's unfortunate because you know those folks were important voices in the management of organizations and you know for their own career i mean it's also like a flattening of the sort of big law firm as well right you know a kirkland an income level partnership always made sense there's a bajillion people there's a bajillion offices this makes sense but a place like Cleary, which is one of the firms that moved over to a two-tier partnership last year, they have two offices in the U.S., right?

11:17They have, you know, it's a much smaller operation, very prestigious, but smaller. And I think that, you know, at a firm like that, keeping a single partnership made a lot of sense. It's a different model of a firm, but we don't have a lot of vocabulary to describe the difference between one or two very big, powerful offices, you know, like a Wachtel or something like that. And a, we're in every town, every city coming soon to a, you know, a rest stop near you. We don't have ways to really describe that. And when people are looking at competing with Kirkland, I think that a lot of places have just felt that creating that level of flexibility is the only option.

12:00Elie Mystal:I think they have four offices, Cleary, but yes. Fair. Because they opened up in a couple of Bay Area ones, I think, back when I was still there. But yes, they had historically just been in New York and D.C. But yeah, anyway, it's a development that we keep watching. The whole equity tier forever model just seems to be dwindling, which is very sad. Oh, well. Well, let's take a break and come back and talk about something much more salacious and goofy almost. Let's face it, you didn't become a lawyer to stress over summaries and analysis. You could hand it off, but you need an assistant you can trust.

12:42Elie Mystal:Co-counsel handles those important but tedious tasks that keep you from being a lawyer. And because it's trained only on expert legal content from Thomson Reuters, it's as precise as you are, which means less stress and more confidence to focus on what matters. Head to tr.com slash co-counsel to discover AI that lawyers swear by. All right. So does everybody remember Kyrsten Sinema? Yes. Yeah. So she was a senator for a term. She was way more headlines than a single term senator has any right to have. Originally a Democrat, then independent. She represented the biopharm industry. Oh, no. But also but also Arizona.

13:29Elie Mystal:She left after her term of making it all about her and making sure that we didn't get minimum wage increases and stuff like that, which was her legacy as a lawmaker. She moved to Hogan Lovells to not be a lobbyist. I don't know. For those who aren't familiar with how this system works, is becoming a lobbyist is, you know, there's regulations. It's difficult. And so all of these former lawmakers become not lobbyists in that they do all the work that lobbyists do, but, like, not the part that technically makes them lobbyists. So they aren't lobbyists. So they're part of a group of lobbyists where they aren't actually lobbyists.

14:09Elie Mystal:I don't know. This is just how the whole system works. But she's not a lobbyist, but works in their public affairs group at Hogan Levels. She is being sued in North Carolina. This kind of came to light because it was in state court. I think her team is trying to move it to federal, which is how it kind of got on the radar. She is being sued for alienation of affection because she's being sued by the soon to be ex-wife of one of her security guards. who apparently she, according to the complaint, has been having an affair with throughout this whole thing. Let's start this conversation by saying that alienation of affections is a silly tort.

14:52It is a vestige of a time when women wives were property of their husbands and is not recognized in the majority of jurisdictions in this country, not North Carolina. but it is a silly tort. Okay. But this is funny.

15:13Elie Mystal:Yeah. It is a silly tort and you should get your pound of flesh through the divorce not by suing the other person. The person who made you the promise, right? The person who promised to be loyal to you is the person that you should, not the other party. That said, I will say there is something to be said for this sort of a situation and how it flips that traditionally misogynist script on its head. In this instance, the other person is the deep pocket. The other person is the powerful person in the extramarital relationship. The bodyguard. This is, if there was any reason to maintain this tort, this is kind of the paradigmatic example of it where the spurned spouse isn't really going to get a ton unless they get it out of the person who messed things up.

16:08Elie Mystal:Anyway, according to the complaint, some of the more interesting aspects of the complaint are she apparently, let me see here, let me get the exact words of the complaint here. Plaintiff discovered messages which included a picture of defendant wrapped in a towel. Defendant offered to help the husband work through his mental health challenges, and he agreed. He stated to defendant he was intimidated by her, and defendant asked why, because she only wants to be intimidating to her opponents, not people she likes, and here we go. Defendant suggested for him to bring MDMA on a work trip so that she could guide him through a psychedelic experience.

16:51Yeah, okay.

16:53Elie Mystal:Okay, so obviously that is just an allegation, and it's wild, crazy ones. You can't possibly think there's anything to it, except... She's given interviews in the past about talking about him getting psychedelic treatment in particular, talking about, you know, obviously the affair aspect of it is new from this complaint. But in a March interview, the former senator spoke to an outlet about how her security guard is taking psychedelic treatment to deal with, you know, some lingering migraines and issues from post -traumatic stress. And so, you know, once you get to that point, the, hey, why don't we take Molly on our work trips doesn't seem nearly as crazy.

17:39Yeah. Yeah. The allegations are certainly fun to read.

17:43Elie Mystal:Yeah. MDMA isn't even that strong of a psychedelic. Like, she should at least have a shroom plug. Well, so in the original interview, which he's on the record with, she said that he went to Mexico to take Ibogaine. And all I could think is I didn't necessarily know Ibogaine was real. this isn't even the first notable story of a U.S. senator and Ibogaine. This one, however, is real. The first one was a joke. But there was a whole thing in the 70s about whether or not Ed Muskie was on Ibogaine. So if I had a nickel for every time a senator was linked to Ibogaine, I'd have 10 cents, which isn't a lot, but it's weird that it happened twice.

18:26Elie Mystal:Sure, sure. It is certainly a fun little filing. Yeah, but it also speaks to, you know, sometimes discretion being the better part of valor. You might think you have a better case in federal court, but maybe you don't do things that point more attention to your case when it's this kind of a case. Sure, sure. But, you know, besides the humiliation aspect, is there much of a downside? whoever is hiring kristin cinema knows what they're getting well that is a good point after after how she conducted herself as a senator you got to think that uh when she hit the job market does this this is crack the top five folks knew that it was going to be a wild ride i mean unless i guess that's the thing if you're if you're a lawyer hiring do you do you assume that it was like all character acting and that like in all cosplay and that deep down it's going to be different or no no i don't think you do that i mean clearly this is a wild one and yeah so weird case uh kind of a unfortunate series of scandals but you know yeah where we are certainly interesting but hey listen you say it's an outdated tort all i gotta say is it seems very originalist and that is what we should strive to be at all times you know the funniest takeaway for me from the article was that it is not uncommon.

19:51I think there were like 200 some odd cases a year. Yeah. So like it's getting, we made the joke about it. You made a joke about it like being less useful than ruling perpetuities, but it's more active, I'm sure.

20:04Elie Mystal:It is true in North Carolina, at least. And my thing is, especially in this market, infidelity is probably popping. So, you know, I wonder how it relates to the downturn and whatnot. That's a great point. A aspect of this story that I learned is that apparently there are like 200 to 250 of these cases every year in this jurisdiction, which is why they aren't getting rid of it like everybody else did, I suppose. but oh well uh so that's happening we'll keep an eye on that okay that is a just a weird story about both weird law and big law so uh it's a reason to keep an eye on it let's take a break and uh we'll be right back all right uh this is this is probably the the kind of story that we love the most i think i speak for the two of you on this this is a technology story well uh it's also super embarrassing for the Supreme Court.

21:02Elie Mystal:So it is that. The Supreme Court apparently was hacked. We learned this because the government put out information that is only a paragraph. Well, it's technically, I guess, two paragraphs, but very, very short. I think probably because the D.C. U.S. Attorney's Office is learning that if they try to say too much, they're just going to lose over and over again. In this one, it is apparently a plea that's been worked out with a man from Tennessee who apparently, according to this, back in 2023, found a way to hack into the Supreme Court's filing system and access it multiple times over the course of a couple of months.

21:49Elie Mystal:This is, of course, yeah. He just couldn't wait on SCOTUSblog to put the information out there. And that's a good point. Like, it's not like he's hacking the internal internal email or anything like that, or the document management system. This is the filing system, which, you know, okay, like, most of that stuff's gonna be public soon anyway. So probably not a lot of problem, you know, a lot of risk. That said, computer fraud, our computer fraud statute, which is, you know, notoriously overbroad makes all of this stuff criminal. It's also true, and this is not in the story because this fact came out later.

22:28Elie Mystal:A lot of this came to light because the accused, the defendant who's pleading here, apparently posted a lot of information about what he was doing on social media with the handle at I hacked the government. And I don't know. I feel like if you hacked the government, you probably should have a different. To be fair. To be fair. that is a hard username like i'm mad i didn't think about it not that i have any hacking intent or capability but it is it's one of those names you keep just in case you need to sell it at some point like yeah right like nazis.us you know like remember when yeah um well yeah 2023 is that the year that the chief justice decided to write about typewriters uh was that that year i can't remember Yeah, probably that year.

23:22Elie Mystal:Yeah, 20 and end of 23. Yeah, probably. Yeah, so they would they would just focus on the wrong tech all around. Like, yeah, yeah, that just I mean, this is not the first time that the Supreme Court technology IT folks have fallen down on the job. Right. This is there. There have been all sorts of redaction problems, filing issues. is you know this this is actually par for the course which is kind of terrifying when you think about them in terms of the amount well first of all their budget that they get for all sorts of security you would think some of it might be applied to cyber uh but it's it it's it's embarrassing for the court system but i'm sure it is i'm sure it is refreshing for there to be a a supreme court hack oh and like release documents and the legal isn't like oh shit now i have to find somebody to blame for this if they spent even you know a quarter of the money they spent you know chasing after windmills on the dobbs leak when and not you know interviewing the justices on cyber security and figuring out you know how to admit two-factor authentication yeah would we have this no jeez yeah i guess i bet the password was something like judicial review rocks or something it had to be dumb.

24:45Elie Mystal:There's no way it was good. You know, we also had the Russians hack into the PACER system in this last year, too. So just the judiciary is just a mess all the way around. So, yeah, here we are. Another stupid failure on this court's part while they've been messing around trying to suss out what people thought about the law in 1600. They might wanted to have spent some of that time figuring out how to secure their systems in 2025 but i only thought of when when this story came out all i could think of was the space balls which of course there's space balls 2 is coming here but i thought you could think of space balls and like the password is one two three four five like an idiot puts on their luggage yeah well yeah what what do we think what would supreme court passwords be uh i feel like there's a fun game in there originalist one yeah right from catherine one of course that should go too

25:52um my money's on learn these hands that's a good one good one yeah shit i need to get that as an