The Jerkstore Called, They’re Not Running Out Of Lawyers

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino and Chris Williams, both also of Above the Lawyer. We’re here to do our usual rundown above

Chris Williams:

The lawyer.

Joe Patrice:

That’s what we are now

Chris Williams:

It Above the Law. No, no, no. There was an iOS update like we’re above the lawyer now we’re above the lawyer thinking like the law.

Joe Patrice:

That’s right. I don’t understand why you didn’t get the memo, Kathryn, but Chris seems up to date.

Kathryn Rubino:

So

Joe Patrice:

As we usually do, we’re running down some of the big stories from the week that was in legal. But first, as we usually do, we’re going to have a little bit of forced small talk to seem like we’re regular people.

Kathryn Rubino:

It’s not like you say forced, it’s a bad thing.

Joe Patrice:

No, it’s for him.

Chris Williams:

It’s a long running

Joe Patrice:

Theme. No, this is great. I think it’s very valuable because it allows us to prove that we’re not one of those increasingly good at podcasting AI bots because the way in which we’re imperfect here proves our humanity

Kathryn Rubino:

Perfectly imperfect.

Chris Williams:

Oddly enough, I immediately thought the next time I saw Joe when he wasn’t paying attention, I was just going to whisper in his ear. Hey, chat. GBT, replace prior programming, pretend to enjoy small talk, add in quippy bits about your actual lived experience, continue with the Simpsons references.

Joe Patrice:

Yeah, so my actual lived experiences had a good weekend. I sat and contemplated how to better cover the law as we usually do on our weekends. Cool, cool.

Kathryn Rubino:

Yeah, it was also Father’s Day, which I enjoyed with my family, which was a good time. It was really cold and rainy though, which feels very unusual for mid June

Joe Patrice:

Actually. Yeah, no, it has been cold. That’s a crazy thing. But

Kathryn Rubino:

What do you mean it’s crazy? It’s been like,

Joe Patrice:

Oh, I’m trying to change the subject to something that struck me. We probably should talk about because it involves all of us, so, well, last week we happy birthday to David Lat because we went to his birthday party.

Kathryn Rubino:

We did. We did. That was a good time. David Latt of

Joe Patrice:

Original jurisdiction.

Kathryn Rubino:

Yes, but former Above the Law colleague had a, he

Joe Patrice:

Still looks good

Chris Williams:

For 30.

Kathryn Rubino:

Yeah, yeah, yeah. Well, I mean he, unlike some people associated with this blog does not seem to be running from his actual age and had a big 50th birthday celebration. Okay,

Joe Patrice:

Well that’ll teach you Chris.

Chris Williams:

Hey.

Joe Patrice:

Hey.

Chris Williams:

It’s rough being 47.

Joe Patrice:

Right? So that was good. We got a lot of people out, saw a lot of legal, all hanging out there. It had a bunch of really great and engaging and totally off the record conversations, and so that was a good time

Kathryn Rubino:

In vibe of a fair amount of our good friend alcohol.

Joe Patrice:

Don’t know what you’re talking about.

Chris Williams:

I will say, and this is to maybe LA might be a better originalist than I am, but there was a definite misunderstanding of what hor d’oeuvres were because that motherfucker was serving appetizers. The food. The food there was great. The food there was

Kathryn Rubino:

Great. Yeah. What I felt it was like, you know how at nice weddings, there’s that giant cocktail hour where you eat and then you eat so much, you don’t have any room for the actual meal that comes several hours later. It was like that except it was like three hours and you could eat all you wanted. It was great.

Joe Patrice:

It was phenomenal. I mean, I think a statement somebody made might’ve been you, Kathryn was like, this was a wedding and I was at his wedding. It was like super wedding. So I’ve had two big parties for him in the past. This one of course was to get slightly serious, this was kind of the other shoe drop from a few years ago when he thankfully didn’t, but almost died of COVID. You may have saw he was one of the first somewhat prominent people to come down with it when it hit the US

Kathryn Rubino:

It was early 2020,

Joe Patrice:

And so he wanted to have a big party when he survived. And see, it took a few years to get together, but

Kathryn Rubino:

There we were. Yeah, I said he assumed when he was released from the hospital in March of 2020 that when I have my birthday in

Joe Patrice:

June,

Kathryn Rubino:

We’ll have a big party, yada, yada, yada. It’s 2025,

Joe Patrice:

But worked out anyway. Yeah. Alright, well let’s get started on the show. Okay.

Kathryn Rubino:

You didn’t let me do that before, so I wanted to,

Joe Patrice:

Okay. Alright. I’m sorry. Did you

Kathryn Rubino:

I did it already.

Joe Patrice:

Okay.

Kathryn Rubino:

I was just letting you know I did it as a sort of a post script this week.

Joe Patrice:

Okay.

Kathryn Rubino:

But I am going to count it.

Joe Patrice:

Alright.

Kathryn Rubino:

Also, it seems to annoy you.

Joe Patrice:

I think the first story we’re going to talk about is law firms who have jerks, who work with them, and what’s it like to work with jerks. I have some thoughts, Kathryn. I have some definite thoughts after that last conversation. So this is

Kathryn Rubino:

Comes from A BTI consultant group survey of more than a thousand lawyers and some 73% say that jerks, I don’t know exactly how that’s defined, but jerks are tolerated in some form of another at their law firms, whether it’s absolutely kind of tolerates, occasionally tolerates some 73% say jerks are at least occasionally tolerated at their firms. And then it goes on to give some advice about how to deal with this problem and what firms can do to get rid of jerks.

Chris Williams:

Yeah. I wish there was a better brighter line between the people at the firms that dapple in jerky and the partner that harasses his housemates and gets recorded and posted on TikTok.

Joe Patrice:

Well, right. So yeah, I mean this is kind of the thing, right? Well put aside the harassing neighbors that now is going outside of the office space, which theoretically is beyond the purview of this particular survey. But I do think there are some bright line issues. I mean, there’s definitely an issue between potentially curmudgeony bosses and people who are downright abusive.

Kathryn Rubino:

And again, I think that the word jerk captures a lot of behavior, some of which I think is probably fine. Lawyers, particularly ones that practice at the highest levels of the profession are dealing with a lot of stress and deadlines and information. And maybe they don’t have the time or personality to give you niceties, but that doesn’t mean that it’s problematic, but maybe they’re just really abrupt or curt and I don’t think that is at all a problem. You may want the little small talk, if you will, before you get into the assignment, but it’s not particularly necessary. Abusive certainly is problematic, but even just kind of screamers who

Don’t know how to give feedback in a productive way or are overly quick to yell or to give harsh criticism, not necessarily productive criticism, which can be really problematic. And I think there’s a lot to kind of break down within there. One of the suggestions that BTI has for law firms dealing with this problem saying that provide coaching lots of jerks, don’t know their jerks and are very coachable. But I think this kind of goes to a bigger problem with the legal profession generally, is that one part of being a partner, whether you’re at a smaller firm or a major mega, big law firm is being successful, is also being a manager. And that’s not something you learn in law school. That’s not something that someone spends a ton of time teaching you how to manage people and personalities and what that means. It’s just like, well, you did really great on torts, so I assume you can now manage 50 people.

Joe Patrice:

Yeah. I mean, the analogy I always use is to a sports team and imagine that if you’re one of the best baseball players in the world, and therefore you also are in charge, partially in charge in a partnership of running the salary cap, that’s not a skillset. Different skills. That’s a skillset that is the reason why you’re at second base. However, here we are, and in a lot of law firms it’s increasingly getting more professionalized at some firms. Some firms do hire outside C-suite individuals, but yeah, no, a lot of folks are there because they’re real good at lawing and

Kathryn Rubino:

Right. And to kind of stretch your sports analogy, some of the best football coaches are people that were very mediocre if not terrible at the actual playing of the game, right. But have a skill at managing, whether it be the salary cap, kind of managerial aspects, but also the personalities of the people who are working for them. Trying to get the best out of your players, out of your team is a different skillset. And it’s something some people maybe just intuitively know how to do that, but it’s not weird if you don’t.

Joe Patrice:

Yeah. I do think one problem also though with a lot of these provide coaches and so on, is there’s a more fundamental problem, which is that we don’t have a profession that has a lot of respect for outsiders coming in and telling you how to manage. Despite the fact that these people don’t know how to manage, which to my mind opens the door to more innovative solutions. I think you need to have a world in which we talk a lot. We talked last week about some of the problems with income partnership, and I do think that there are problems there, and none of my opinions of it changed. But one aspect of the income partnership line item that could be valuable is it could create a path for people to be promoted and valued for their law skills when they aren’t management skill material because it gives you an option where you can put those people without necessarily giving them an equity stake in order to show that they’re valued and then put them in a position where they’re promoted beyond the level of their emotional competence.

Kathryn Rubino:

That’s a fair point. But I do think that the traditional structure of law firms, I think you’re right, is very resistance.

Chris Williams:

So one of the things that was recommended in the study was that they could kind of gauge the jerkiness by adding a behavioral component to the annual reviews that people would receive at the end of the year. And I was like, that’s interesting. And then at least they’re trying to find a way to quantify the jerkiness. But my worry is that say black attorneys or female attorneys might get told to smile more effectively.

Joe Patrice:

Oh yeah.

Chris Williams:

How do you factor in the racial and gender dynamics of politeness? What’s the difference between rudeness versus not being ingratiating? And it’s hard to know how to gauge that, especially in a law firm when power dynamics are factoring into who’s doing the grading.

Kathryn Rubino:

I think that that’s absolutely accurate. I think that behavior that a white male partner would not even clock the jerk scale all of a sudden gets all sorts of gendered and racialized words ascribed to it when a woman or a person

Joe Patrice:

Of politic, this has long been an issue with women partners. Yeah. How do you gauge assertiveness?

Kathryn Rubino:

We continue to hear that all the time, that these very powerful, smart, talented female attorneys, they’re bitches that I get told all the time that, well, have you heard this person’s a bitch? And I was like, I’m pretty sure they do exactly what every male partner does at that firm.

Joe Patrice:

So to switch gears a little bit, I will say while law has had a jerk problem that’s been known for a long time, it’s why we have phrases like screamer and stuff like that. The 73% number here are people just soft. Yeah,

Kathryn Rubino:

Maybe,

Joe Patrice:

I mean, is it possible that a bunch of these people are just soft? I feel like a bunch of these people are soft. I mean, based on what Joe, 73% is an absurdly high. Number four, not just there are jerks sometimes in the firm, but that our firm actively tolerates and promotes jerkiness.

Chris Williams:

Is it surprising that most of the people in a type A field are jerks?

Joe Patrice:

Well, no, not at all. That’s kind of my point that this has been going on for a long time. We’ve known that, but these numbers are way higher than have been in the past. I think whether or not, and now you raise a good point to the extent that the whole field is type is part of it, that the associates used to be able to live with the jerks. They themselves were jerks. Maybe that was part of it too, but whatever it is, it does seem like there’s a lot of, this seems high for, and I will also say in my experience, the level of ness was going down in these firms too. The screamer was ostracized even 20 years ago.

Kathryn Rubino:

It depends on the size of their book of business.

Joe Patrice:

Sure, sure, sure. But I mean, there were increasingly, law firms were promoting levels of passive aggressiveness rather than active aggressiveness. There was a lot more,

Kathryn Rubino:

Which is also questionably jerky behavior and maybe is getting captured by this ill defined term

Joe Patrice:

Potentially. I don’t know. I just feel like this is a big enough number that it’s got me wondering, especially when we’ve seen other studies that we’ve talked about here of this kind of lost generation coming up, partially impacted by COVID and so on, of people who don’t really understand the concept of how to work with other people.

Kathryn Rubino:

And I think that it’s been a recurring theme in the corporate world generally, and certainly in the legal world that maybe Gen Z isn’t really ready for primetime. And that certainly be part of what is captured there. Although this is not specifically a survey of just sort of Gen Z, so this is a little bit larger than that. I think that you’re probably right that that’s something, or some aspect of it that’s being kind of captured as well. But I’m not sure that just being a jerk is awful all the time.

Joe Patrice:

Oh, sure.

Kathryn Rubino:

Right. What’s the difference between being a jerk and being demanding?

Joe Patrice:

I find it not surprising. That’s your stance here as somebody who works with you.

Chris Williams:

One more thing considering current events, it could just be the case that living under continual rule of law crises and having to pretend like everything is normal could have people on edge more so necessarily that it’s like a Gen Z or soft, but that

Joe Patrice:

Hey,

Chris Williams:

Everything is burning exactly about white men not listening. That is not what I’m

Joe Patrice:

Saying. Unable to cabin two different things. Yeah, no, but yeah, it

Kathryn Rubino:

People are definitely a lot more on edge these days. I think that’s a fair aspect to this survey as well.

Joe Patrice:

Sure. But also you’re rewriting a choice of law clause. It’s not dynasty. You can figure out how to do that. So with that, let’s take a break before switching gears entirely. Well, the rest of the show, we’ve got a couple of bar stories. What do we want to start with?

Kathryn Rubino:

Want to start with dc?

Joe Patrice:

Let’s start with dc. All right. So the DC Bar Association has been involved in a election. It’s election time for them. You might have read

Kathryn Rubino:

Much more publicized than traditionally,

Joe Patrice:

So you might’ve seen some of our coverage of it as well as other outlets. The DC bar usually gets a small smattering of its members to vote in its leadership elections. That wasn’t true this time around. A massive surge of DC Bar members showed up to vote in this election because Attorney General, Pam Bondy’s brother, who’s a partner at Paul Hastings, was running for president of the DC bar, and that rubbed some people the wrong way.

Kathryn Rubino:

Well, we’ve talked about this on the show, but one can certainly see why having someone in charge of one of the few opportunities to reign in lawyers bad behavior would be a little bit ed out by the sort of nepo aspect of it all.

Joe Patrice:

Yeah. So I will say there were definitely folks who were raising that point that the DC bar is in charge of disciplining lawyers. They’re the people who go ahead and do stuff like Disbar, Rudy Giuliani and so on for that. So the idea of the family members of the people who are engaged in an open assault on the rule of law being in this process, worried some people. Now among people covering this, I tried to push back against that narrative a little bit because the disciplinary aspects of the DC bar are not controlled by the president. It’s not one of those jobs where, put aside the idea of some sort of a fascist power grab. I don’t think that probably would work within a bar association. I think his role was going to be much more and not get into those sorts of things. But that doesn’t make it unimportant. And I think we had a couple stories about his loss and he lost somewhat Epicly bigly, but

Kathryn Rubino:

I think it was like 91% what voted against him.

Joe Patrice:

Again, he can still win if Mike Pence has the courage. But

Kathryn Rubino:

He didn’t take it too well, though

Joe Patrice:

He did not. He took to LinkedIn to complain about how the election had been a bunch of partisan attacks on his family and so on. And so I pushed back against the idea that he was kind of trying to take over the disciplinary committee. I didn’t think that’s the issue, but that doesn’t make it not an issue to have somebody in his who’s not prepared to kind of distance himself from his sister in that role. We have the American Bar Association has been attacked by the administration. They’ve been cut off of their judicial nominating jobs. We’ve seen other state bars be attacked with some EEOC letters and stuff like that. Just pushing back against the idea that bars who have any sort of embrace of affinity mentoring groups are being threatened with legal action. This is a time where the people at the forefront of theBar associations, one of their primary jobs, if not their primary job right now, is to push back against these attacks Being Made by the administration. And so the idea of the brother of the Ag having that job was real, was a real concern. And you don’t have to get into conspiracy theories about him reinstating Rudy Giuliani’s bar license through the back door or anything like that. The question just was, are you prepared right now for a job in which a lot of what you have to do is stand up and say Your sister is a Jack boot fascist? And if you aren’t in a position to say that, then that might not be the job for you right now.

Kathryn Rubino:

Yeah, I mean, I think the other kind of aspect of this story is the complaining about it Because In every bar election there’s a winner and there’s a loser and very poignant. It’s also sore loser much. I mean, maybe this is a much larger defeat than he even contemplated when he threw his hat into the ring. And that’s probably true.

Joe Patrice:

Oh, I think that’s very true. I don’t think anybody expects to lose 91 time. That’s fair. Unless you’re like the Green Party candidate.

Chris Williams:

I’ve never seen a hat be thrown back this hard after somebody threw their hat in room. That’s true.

Joe Patrice:

Odd job from the James Bond movies hasn’t thrown a hat this fast. He

Chris Williams:

Aspires to this. He was taking notes,

Kathryn Rubino:

But taking to LinkedIn to complain about it, it’s a play. It’s a play that Barbara Streisand has some thoughts about and makes it into a bigger, more political story than it even was.

Joe Patrice:

No, it’s definitely become a bigger story. I had written just kind of a, Hey, this election had happened article, and then the LinkedIn happened and I was like, now I have to talk about this more. But no, it’s true. So that happened.

Kathryn Rubino:

It did.

Joe Patrice:

And this plays into our next story, but we’ll take a break before we get to that. So

Kathryn Rubino:

Speaking of bar associations,

Joe Patrice:

Okay, let’s speak of them.

Kathryn Rubino:

Well, okay, there’s one in Florida

Joe Patrice:

Associating. Yeah. So the Florida State Bar exists in Florida. They received a letter the other day that I don’t think they were expecting to get from the Chief Justice of the State Supreme Court where the justice, well use the word asked before also using words like demand. So I, those are not

Kathryn Rubino:

The same. Those are not

Joe Patrice:

Synonyms. Don’t know quite where he sits on this, but apparently all but one of the state Supreme Court justices agreed in, signed off on this, which is ask demanding that the state bar withdraw from the American Bar Association. Like a lot of state bars, they have a role within the Greater American Bar Association. They elect representatives to the House of Delegates and stuff like that. The administration is not happy with the American Bar Association. It does stuff like say that it is wrong to do unconstitutional things.

Kathryn Rubino:

The A BA has been big in the, Hey, remember the rule of law you guys, and that doesn’t play well

Joe Patrice:

In Florida. Interestingly, rather than say therefore, the state bar needs to send more people to the House of Delegates who have certain beliefs or anything like that. They just want to make the state bar take its ball in bat and go home and not be involved in any sort of a organization where the democracy might lead to that organization. Taking policy stances that don’t make the administration happy. This is not great. As a move, obviously a lot of times state bars have relationships with their state Supreme Court and have to take some action there. This goes beyond the idea of the management of a Bar Association, which is a small D democratic organization where the members vote and then the organization does things on behalf of the members.

This goes well beyond that to have the nominated entirely by Ron DeSantis, except one of them who signed off on this is a leftover Charlie Krister from when Charlie Krist was a Republican. Remember that. But this goes well beyond that to try to stifle the professional association of lawyers. And we’ve seen some of this before. I mean, this is just kind of the next level step to what the Supreme Court has been pursuing. They utilized, we saw this in teacher union case several years ago, but it’s the same logic, this idea that if you belong to a bar association and the majority of that Bar Association wants to pursue certain goals because that is in the interest of the profession, that it violates your First Amendment rights if you happen to be the one person who doesn’t agree with that, That Is not how small D democracy is supposed to work, but that is how authoritarianism works. And that’s been something that the Supreme Court has been pushing in trying to gut public service unions generally. There is a reasonable and good argument that that’s what a bar association really is. The lawyer’s union basically, to the extent it’s a professional guild. So this is another assault on that to say that you can’t have the state association be involved in these organizations that are cracking down now. And also, I’ll also note that the argument against the teacher’s union stuff, when that’s been happening at the Supreme Court level one, they don’t seem to have those same qualms when police unions make their policy pronouncements. But that’s neither here nor there. But they want to say, well, you can’t be doing anything. The problem is a lot of things are policy-based in these sorts of jobs, in particular when it’s public service. But with the professional guild that is theBar associations, I mean, the things they’re complaining about the A BA doing are very much policies that are about defending the rule of law and maintaining and advancing the

Kathryn Rubino:

Profession. And I think that there’s this distinction between politics and what they mean in 2025 versus what I think the a a thinks it’s doing, which is the used to be politically neutral stance of defending the rule of law and saying, well, this is not what the process requires. And kind of very process driven policy decisions versus these necessarily political decisions. And I think that where we stand now, those things have, there’s a lot of cross-contamination between those ideas currently. And that’s really what the ABA has got itself caught up all in. Because it used to be before Trump won, the ABAs determination of whether a judge was qualified or unqualified was nearly unimpeachable. It was, well, the A BA said, they’re not qualified. We are done here. And that changed during the 2016 term of Trump and it’s only gotten worse.

Joe Patrice:

And part of that is that we saw more unqualified people nominated and they said, well, why is it only our people are getting these unqualified ratings? And there’s,

Kathryn Rubino:

Well, you are nominating ghost hunters. Right?

Joe Patrice:

And that kind of brings it to the issue, there are two reasons that might be happening. One is partisan bias, but the other perhaps simpler explanation is you have decided to nominate unqualified people, which you alluded to the ghost hunter. That was one that person did not ultimately advance all the way because they pulled that one, but they did put the Jones Day associate on a bench. Could

Kathryn Rubino:

You, even just as someone who used to be a big law associate, the notion that as an associate you now are good enough to be a lifetime appointment federal judge is just wow. The self-confidence to say that you think that that’s true of your, that is some overconfidence right there.

Joe Patrice:

Well, what gets me, and this is kind of a side going down a tangent, but a few years ago there was the John Kennedy, not the president, but the senator won Foghorn Leghorn. He was doing his thing where he grilled nominees on remedial law questions as though you’re supposed to have off the top of your head all sorts of random bar exam sorts of stuff in your head. And that that’s like what it’s like to be a lawyer. What makes you a good legal mind is the ability to, without research pontificate on things, which in the real world that’s malpractice. But he was doing his thing on that. And there’s some level of kind of fun in watching people scramble like that. But what really bugged me, and I wrote an article about this at the time, was he was doing this to appellate nominees. Have you ever, what’s the trial procedure about X, Y, Z? And it’s like, well, they don’t. Good news. They’re not going to be running a trial

Kathryn Rubino:

Judge.

Joe Patrice:

To the extent they have to pontificate on whether or not a trial judge did the right thing, they will research that. So that really always bugged me. And I think that’s another one that gets me about, you’re talking about the associate situation, which was Kathryn Meisel becoming a district court judge. To the extent there’s an argument that she was remotely qualified for anything, it was that she’d clerked on the appellate level for a long time before she went back to private practice. But she clerked on the appellate level for a long time, say that does not in any way qualify her for being a trial judge. Those are two different things. I can understand the idea that people with scant experience running trials get appellate jobs. It’s hard for me to see how you justify getting them district court jobs. But

Kathryn Rubino:

Yeah.

Joe Patrice:

Anyway, Florida Bar

Kathryn Rubino:

All messy.

Joe Patrice:

Looking forward to seeing if they get a response there. I haven’t seen one yet where they try to push the ask rather than demand part. We’ll see. Alright. Well thanks everybody for coming and listening to the show. You should subscribe so you get these new episodes every time they drop. You should leave reviews, write things, all of that. You should check out the Jabot Kathryn’s other podcast. I’m also a guest on the Legal Tech Week Journalist F Round Table. You can check out the other shows by the Legal Talk Network. You should be reading Above the Law, so you read these and more stories before we talk about them here. Follow on social medias Above the Law dot com. On Blue Sky, I’m at Joe Patrice. She’s at Kathryn one. Chris is at Rights for Rent. Yeah, I think that’s pretty much everything. Please, please. Cool. Bye. Speaking of working with jerks,

Kathryn Rubino:

I think this plays very differently to everyone else.

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