Biglaw Surrenders Were Worse Than We Thought

0:11Hey, welcome back to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by Catherine Bino. You are also of Above the Law. Yeah. And that's what we do here. We talk about the big stories from the law. that was illegal so that we can catch you all up on things you might have missed in the world of law. But first, we have a little bit of small talk. How are you doing? I'm doing all right. I'm doing all right. I'm currently suffering quite a bit from the perils of mosquito bites, but wildly only on my left side of my body. I have like 10 bites on my arm, a bunch on my foot and leg, but none on the right side of my body.

0:54did I only put perfume on one side of my body? Like, I don't understand like what happened. Weird. Yeah, no, uh, no. So that's, that's good. I, I don't really have anything of note to talk about. that's okay because I did want to talk a little bit about, it's kind of this medium talk that you like, which is kind of about our job, but kind of not. So I've been trying to mix up some of my trivia questions of the day. Regular readers of Buffalo know that I do a daily segment called trivia question of the day in this past week. I've been trying to lean more into like historical stuff because I mean, I try to listen, I mine the news of the day when I can to, you know, make a trivia question.

1:36If there's some stat that I think is interesting, I'll make that trivia question a lot. But I haven't really like truly mined history before in a serious way. So I started doing it this week and I got a bunch of reader mail about it. So I thought so I wanted to kind of introduce a mini segment, not necessarily regular with you, but mini, which is, I'm asking you trivia questions. Stump the host, if you will. Okay. I did think this was interesting, but do you know, Joe, the only sitting Supreme Court justice that resigned his seat in order to take a presidential nomination? Well, I mean, Felix Frankfurter like, or no, no, Jackson, left to be a prosecutor, right?

2:27Was that presidential appointed? No, no, I'm sorry. The nomination for the presidency is what I'm saying. Like to be on the ballot. Like Charles Evans Hughes or whatever? It's exactly who it was. Yeah, okay. All right, okay. I thought you meant like to get a job from the president. No, that's fair. That's fair. Which I also thought was interesting. He actually returned to the court 16 years later as the chief. And it was a particularly nail-biter of an election. He went to bed that night thinking that he was the president-elect. That's a shame. But it was apparently a 3 ,000-vote difference in California in which he lost the election.

3:05And a reader sent me in this particular tidbit, but apparently a reporter had called the Hughes household to get a comment after it became clear that he was going to lose the election. And the butler answered the phone and said, the president-elect is currently retired for the evening. Can I take a message and said, well, when he wakes up, tell him he's not the president-elect. Amazing. Listeners, if you have other things that you think I can try to stump Joe Patrice with, you should definitely send them to me. It's Catherine at above the law.com for all these kind of trivia question stuff. But I'm going to try to be more historical looking in some of these trivia stuff.

3:46That's my new my new jam. Yeah. Yeah. Charles Evans, who's now he lost to who did he lose to like a Wilson or something? Is that right? OK. All right. I that I was kind of guessing on. So. OK. And so, yeah. So that would have been the 1916 election. Yeah. Yeah. OK. Anyway. OK. Cool. All right. Well, then we could be done with small talk. What do we want to talk about? Oh, let's talk about Paul Weiss. The gift that keeps on giving. You know, if you had told me, you know, circa 2023, that the big law firm that I'm writing the most about is going to be Paul Weiss, I'd be like, why would that be? Have they decided to take the lead in associate compensation?

4:33They he hasn't. They have not. But I am still writing about them an awful, awful lot over. was it last weekend? The New York Times wrote a sort of expose, if you will, about what was really going down at Paul Weiss, the kind of led up to and included, you know, the before their their capitulation to Trump. They were, you know, people who were have been living under a rock or not paying attention to big law for the last year and a half. They were the first firm to capitulate and to sign a deal with the Trump administration promising they promised 40 million dollars in pro bono services. But there's a lot of stuff kind of behind the scenes.

5:11And now we know that Brad Karp is no longer the chair of the firm. It's now Scott Barche. And it's really a, I've written about this in the past, that it's really a culture shift for the firm, kind of a litigation focused to a corporate deal focus. But there's a lot of other stuff kind of going on. And one of the things that the Times report talks about is the firm seeming to push out the first openly trans partner that the firm had? Yeah. Not great. There was apparently an NDA and a multi-million dollar payment. And if you thought that Scott Barche was behind it, you were correct, at least according to the Times' reporting.

5:54But one of the things that Lex Korberg liked doing at the firm was a variety of litigation, both in terms of public interest and pro bono work, as well as some of the more traditional corporate litigation work. And, you know, they were one of the people who was actually pushed into the partnership a year early. If you remember, you wrote, I think it was in 2011. Oh, well, it wouldn't have been me then. Oh, so I'm definitely wrong about the year. It's December 11th, but it's 2018. Oh, I was definitely working here then. Okay. Sorry. That was just a quick glance issue. But you wrote a story in 2018 about Paul Weiss's partnership.

6:36If you recall, they sent out an image with their new class of partners, and it was all white and all men except for one. And they happened to put the people in the image in alphabetical order, and the only woman in the class was the last image. So it just, it was a real exclamation point on the whole thing. But, you know, they got a bunch of, you know, deserved PR attention for the lack of diversity in their class. And one of the things that they did is, you know, this associate at the time, Lex Korberg, was up-and-coming, hotshot talent, and got pushed into the partnership a year early. But as I said, they liked a lot of pro bono work, doing work for abortion rights, doing work for LGBTQ kind of work.

7:24And that was not something that Scott Bosche wanted a lot of headlines about and around, according to the reporting, including there was some press release that the pro bono partner was putting out that mentioned the firm. And Barche was like, no, we're not getting mentioned in this press release, even though they're doing the work. From the reports, Korberg definitely felt like they were being targeted as the first openly trans partner at the firm, wound up spending an additional year after saying that they wanted out and getting a multimillion dollar deal, as I said, and now works for a public interest shop.

8:01Yeah, obviously bad. The other aspect of the story, though, was the revelation that apparently internally they were talking about running management decisions by Stephen Miller. Yeah, yeah.

8:44as we're forfeiting our independent judgment. Yeah, so the specific case, it was about another thing that you covered in the kind of early surrender days was, or the early days of the Trump 2.0 administration was big law firms pulling a lot of their DEI stuff from their website. Paul Weiss was amongst the firms that did that. And there was apparently some internal partner dispute between whether they're going to bring it back, if they're going to make any changes to it, what kind of changes are they going to put on all their kind of website stuff. And there was a real back and forth about, well, maybe we should have their attorney, Bill Burke, run it by the administration to see if the administration is okay with it.

9:25And they're like, well, what are they going to do? Ask Boris or Miller if it's okay? So, you know, tone is not great in text. So, you know, maybe it wasn't quite straightforward. Like, yes, we should definitely do this. That was not my read of it, certainly. But it definitely shows you how much independence these deals took away from the firms. I think that you're completely right about that. And I think that's also why, even though in the article it reports that some of the litigators that wound up leaving the firm after the deal were in support of it internally and said, yeah, I guess we should do this deal and get it done.

10:03I think it's the exact phrase in the Times. But when you actually see what the reality is and kind of the independence that's lost, you know, I think for a lot of litigators, it just no longer made sense to be at the firm. So I've always thought my interpretation of it in some ways is that if you are a partner in a firm and you have a fiduciary relationship with the firm, the deal proper probably is something that you support on the grounds, at least the deal that is we can settle this executive order by giving away some pro bono work. And you might do that to say the firm itself to stay in business needs this.

10:42So it's OK. That doesn't mean you're thinking it should bind you and you're thinking I may have to leave. But the business that I have this legal responsibility for caring for, it's in its best interest. I can understand that. I disagree. That kind of dichotomy there. I disagree, but I can see that mental break. And I think that might inform a lot of the people who did leave afterwards. And we hear, oh, they were for it internally and then they left. And I think the mainstream media treats that as, what's this all about? And I think in somebody's head, that makes sense to me as you're wearing two hats, a fiduciary hat and a personal hat.

11:24Yeah, and I think that the other thing that really came very clear in this article is how dire, at least internally at Paul Weiss, they thought that the executive order, even though very clearly unconstitutional, was for the firm. They said things like, we won't survive another attack by the administration. We have to get out from under this. And when they were talking about the specifics of their website and what should be in there, again, Barche took a very strident position. And I think it also really goes to the kind of change in culture that people have talked about at Paul Weiss. But when he said that he doesn't care about the internal audience or the press, only cares about what the kind of administration thought about it.

12:05So he doesn't care about his own people, doesn't care about what sort of the PR backlash is, only cares about getting out from under the administration. And I think that that attitude that is now at the top of the firm is super relevant. I mean, that really, you know, we'll see. Obviously, they lost a lot of folks in the lateral market. I, you know, we're kind of going into we haven't really digested completely the cycle of what, you know, people joining it going forward. But really, both this firm and all the others that surrendered, that quote, I think, should stick with you. If your firm leadership is saying they don't care what the lawyers who work there think, that's a pretty good sign that you should be looking elsewhere.

12:54Yeah. Because even if you don't care about the fact that your firm is just kind of a cowardly lapdog of the administration, which you probably should, it speaks to deeper issues. It speaks to if they don't care about that, then they don't care about anything else that you might need. It's a sign of the kind of disrespect and contempt in which they hold you as a lawyer there, if they're willing to say that sort of stuff out loud. Yeah, and yeah, that's why I do think that this is really important and relevant in terms of digging into the culture at the firm and, you know, just kind of a behind the scenes little look.

13:34I wound up dividing those two parts of the bigger Times expose into two different articles because I kind of think that, well, first of all, I think that there were two good headlines there. But I do think that there are different things that I think people want to take away from those anecdotes. All right, well, let's take a break and shift gears.

14:01That's my impression of the hold music your callers hear right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Better intake, fewer missed opportunities. No more hold music solos. Try it free at smith.ai. Mention Above the Law or use code NOHOLD at sign up to claim 20 % off your first two months of service. All right. Well, what do we want to talk about now? Let's stay in the big law world a little bit. Just kind of a hiring issue. We got new data. Apparently, big law is now the largest employer of recent law grads.

14:46Good news for people who want to make on the top end of the bimodial pay curve, which we've talked about a lot. But the majority of people do not make big-loss salaries, even though we spend an awful lot of time talking about big-loss salaries. Right. They kind of define the market, but lots of the market doesn't make that money. That said, yeah, what this data shows is that the plurality, I guess, of recent law grads are being hired into these large 500-plus law firms, which is not something that's been true before. It's been smaller portions of the legal world. Now, flip side of this, of course, is that big law hired fewer recent law grads than they have in the past, which they have a larger share but fewer people.

15:35I think there's a couple of things behind that, and we'll talk about most of them. But there's also something about the sort of lateral hiring market. And even when there are major big law – sorry, I didn't mean lateral, but I meant the merger, merger mania. but there's something where there are fewer big firms because the firms at the top are getting bigger and bigger. And even if there aren't layoffs, when two large firms merge, there's a lot of natural attrition, but they don't need the same size first-year class as two firms need. I think it's more indicative of what's going on with AI tools.

16:12And that's obviously the bigger part of it. Say what you will about AI. I do not think that it is quite the panacea that some folks do. I think that we have some data in the small and solo space where vibe-wise, lawyers say it's saving them a bunch of time, but billing-wise, we can see that they're actually spending more time on matters than they were before AI. So it's not actually speeding stuff up. So if that's the case, it is not gaining those efficiencies, then it's not doing what it needs to do to justify cutting back on staff. That said, I think what's going to happen in the short and medium term is that firms, I don't, you know, I've said, I don't think that it's going to end in a bunch of layoffs.

17:01I think it's going to end in a bunch of, well, we just need to hire fewer people, fewer first years. It'll be a slow trickle and let them process through the system. For a lot of reasons, not just it's a gentler curve, but it's also the work that AI, to the extent AI can do work, the work that it does tends to be the work that you used to bill out juniors for. If clients no longer want to pay for that because they say, well, you could have just used AI. Why did you bill me for this associate's time? Then you can't recoup the cost of paying that person a big lost salary. And so you hire fewer of them.

17:35Now, I think that is going to be a trend for a while until people figure out that you can't really do it without associates. That's something that people who are thinking about joining the legal industry really need to start thinking about because the number of people who are interested in becoming lawyers every year has not gone down. If anything, it's really only increasing, especially with the kind of economic uncertainty that is going around. You know, law school is a great place to wait out three years of an economic downturn. And so there's a lot of that going on. And it's just becoming more and more competitive in law school in general for a bunch of reasons, but also includes the fact that the LSAT no longer has the logic games section.

18:14So each school's average scores are steadily creeping up and up and up because the sort of notoriously most difficult part of the LSAT is no longer on the LSAT. So I did not mind getting rid of the games because I found it to be such an arbitrary, dumb addition to the test. And it was so easily gameable. If you did learn the five or six strategies to it, you basically could breeze through it. That said, well, that was certainly true for you. But I don't think that that is a universal experience that result that well, one of the knocks on it was that it was it was gameable. One of the knocks was that it kind of was hyper privileging.

18:57You paid for a prep course where they taught you the tricks and that was giving you a better score. And it wasn't really reflective of you being smarter. It was just you've learned the tricks. And so I understood getting rid of it. But you're right. Well, the main reason they got rid of it was a lawsuit that said that it was discriminatory towards people with visual impairments because you can't. One of the easiest ways to game that system was to draw out little diagrams that help you through the question. And if you can't do that, it makes it much more challenging. But getting rid of it, they did not pair getting rid of it with something that made the test also harder on another end.

19:32And so, yeah, you're getting higher and higher averages, certainly, than we had. Yeah, and that continues to be true, right? Like a 165 in 2026 is not the same as a 125 in— Or 165 in whatever. Whatever, 10 years ago. That makes it increasingly difficult and makes the smallest things have a true impact about what kind of law schools you're going to get into, especially with a very competitive entering class every year. Yeah. But I will say, to close the loop on the AI conversation, I will say if you are considering going into law in the short and medium term, figure out how these AI tools work because people are going to want to know that you can do your job utilizing them.

20:18And that you being the expert in how they work is going to be valuable, which is not new. Certainly that was – I felt like I certainly was helped by the fact that I had much more deep understanding of Westlaw and Lexus going into my career than most people did because I'd used it extensively in undergrad. And I think it's a similar tool. It exists, and if you know how to use it and how to not make it make mistakes – You're going to be in a much better position. Yeah, you're going to be in a better position. All right. All right. Well, you want to take a break and we'll be back. All right. Well, the final thing that kind of came up towards the end of the week is the administration put out another pair of executive orders targeting birthright citizenship.

21:07You might say, well, that's weird. I thought we had a Supreme Court case where they said that those executive orders were unconstitutional. Oh, we did. Yeah. So that it is interesting. You do. You are not wrong. That did happen. These new executive orders. So for a month after that case came down, Trump went on social media and complained that this was a horrible decision and it's absolutely unconscionable and he's demanding a rehearing. They did not ask for a rehearing, as the case may be. But what they did do after he's complained that it was wrong all this time is they put out these executive orders that say that the decision was right.

21:47And what the decision means in their mind is there is no birthright citizenship. So he's got two new executive orders that say we agree with the case and the case and we won the case. Essentially, it's slightly more complex than that, but seriously, not much more. what the executive orders do is they recast the language of the opinion one of the things that the chief justice's opinion explains is that birthright citizenship exists except for people for whom certain extraterritorial fictions exist for children who for whom these extraterritorial fictions exist and what that means is if you're the child of an ambassador serving in the united States.

22:27That is an extraterritorial fiction that applies to that child. The new executive order changes the antecedent and says that the extraterritorial fiction applies to the parent, not the child. By moving this, they can play a little bit of chaos. And what they do by moving it that way is they say that people who are not citizens who have children here fall within that category of extraterritorial fiction, and therefore their children don't have citizenship. which is not what the opinion said at all. It is indeed the opposite of what the actual Supreme Court opinion said. He also put out a companion executive order that banned birth tourism, saying that they're not going to issue visas to anyone who's been involved in a – no, in any commercial transaction that results in a child being born here, which theoretically could be as broad as somebody having a plane ticket or a hotel reservation.

23:25That order on its face seems not unreasonable other than the fact that that is already the law. It is already immigration visa fraud to get a visa to have birth here. So nothing actually changed other than making a publicity stunt about it. Sure, and making him feel like he has a W when he in fact got a big old L that's in court from it. Right. Well, and that's really the new take here. after after raging that everything is wrong he is going to say that in fact he won and we saw that after the birthright decisions uh the executive orders came out on thursday he chased it on friday with a new move which is he had had his people send a letter to lisa cook informing her that they're gonna fire her in 20 days which you may remember that that was another supreme court decision that he absolutely lost yeah which was no you can't fire lisa cook and now that that decision technically didn't say he couldn't fire her it said that you couldn't fire her without giving her a due process to challenge the claims against her yada yada yada uh but it definitely signaled that the claims of mortgage fraud that are based on the record seem to be made up mostly made up uh it did certainly signal that the court would not support that uh but we're going to go down the road of pretending we won that case too uh and trying to well you know dementia is a hell of a drug yeah i mean i i don't know like i don't know so this is a dementia thing other than this is kind of a classic roy cone ism uh to just pretend that you've won and move forward uh this is setting up a really dangerous gap of the you know separation of powers i will you know we hear a lot about people complaining about the separation of powers uh as though it is a sword by which you shouldn't be able to question any other branch uh which is the opposite of what it's theoretically supposed to do there's there's this whole thing about checks and balances that in fact what the separation of powers is supposed to do is create a situation where different branches have control over the other branches.

25:38And here is we have moved where we have a largely compliant Congress at this point that does nothing. We are now looking at a scenario where the court who, despite doing mostly the bidding of the executive branch, did have a couple of high profile moments where they stood up to the executive branch and put their foot down. We are seeing how that dies. And that's going to die not by, this is an argument that I had on SiriusXM when I was on the Dan Abrams show. He was saying that he didn't think that we were in a constitutional crisis a few months ago. And I said that I understood his point, but constitutional crises aren't going to arrive dramatically like you think they are.

26:23They're not going to arrive. It's a slow creep. Yeah. It's not going to be a, I've decided I'm not following the Supreme Court. It's going to be an executive order that says the Supreme Court agreed with me, even though we all know it didn't. It's going to be those sorts of boundary testing, just push forward and bank on the fact that that case isn't going to get to the Supreme Court anytime soon to tell him he's wrong. That is the crisis. And this is a new chapter in it and a somewhat disturbing one, because if the court can't say can't say no, like the tariffs case was different. His response to tariffs has been to find different statutes to try and bring tariffs under, which is an acceptable, which is a fair response.

27:03Absolutely acceptable way of dealing with this. That is a tried and true. We've lost the Supreme Court. Let me try again. Yeah. I mean, that was I agreed with I agree with him trying that. I agreed with Biden doing student loans through different statutory schemes that, you know, impact how much you can get. But whatever. But this is not that this is not a different scheme. This is just saying we've decided we won and we're rewriting the decision for you. very worrying. But, you know, that's what we got. That's where we are these days. Yeah. Yeah. That's the fresh hell. All right. Well, I think that's it.

27:38All right. Well, thanks, everybody, for listening. You should subscribe to the show to get new episodes when they come out. You should be leaving reviews, stars, write some things about it. That all helps people find the show. You should be listening to the Jabot, Catherine's other podcast. I'm also a guest on the Legal Tech Week Journalist Roundtable. every other week. I'm guesting on Legal AF right now, so you can hear me talk more political on that show, more political court cases there. Not that we didn't have plenty of them here, but we also talked about the industry here. I won't you get there.

28:09Also, check out other shows by the Legal Talk Network. You should be reading Above the Law to read these and other stories before we talk about them here. Social media, abovelaw.com, at JoePatrice, at Catherine1. And, you know, we're around and we'll talk to you later. Peace.