Forty-five years ago, I had just graduated from law school and joined 22 male attorneys in a litigation boutique. It was a great job, and I got a lot of early experience in both federal and state courts. In those days, judges were not very enthusiastic to have women lawyers in their courtrooms, to put it mildly. The judges did not know how to relate to women in those positions or how to address them. I think it often was more awkward for the judges than it was for the women lawyers.

As co-counsel in a week-long state court trial during the early 1980’s, the judge referred to me only as “she” and “her” although he addressed the male lawyers as “Mr. So and So” or “Counsel.” On the first day of trial, after we concluded opening statements and were on recess, the court reporter came running up to me calling my name. Anticipating the worst, I was sure I had said something incomprehensible that she needed clarified, but that was not her purpose. She just wanted to meet me. I was the first woman lawyer ever to try a case there, and she was excited about it.

In federal court, I had occasion to be referred to as “little girl,” “woman” and “honey” by judges and, at one most memorable moment, I endured a lecture from the judge about my responsibility to act like a man in his courtroom — because, as the judge explained, he did not discriminate between genders. Oh, OK.

Yes, it was annoying, but it also was somewhat amusing and satisfying because I knew that I was being noticed as a woman lawyer and that I was throwing an unknown into the equation. I won my motions, I got rulings and settlements in my favor, and I prevailed in enough other ways to affirm my competence and to chalk up the rest of it to a profession that was not quite ready at the time for the likes of me or other women lawyers.

Flash forward now to a recent scene in a Colorado appellate court when a state prosecutor was asked a question by a female member of a three-judge panel and responded by addressing the judge as “honey.” The footage from the courtroom camera, which is included in the Above the Law report, shows the prosecutor so rattled that he barely could continue with his argument. At least it was clear that his error was not intentional. That is the good news.

The bad news, of course, is that it happened at all, and I am sure that most of you reading this are outraged. And I am outraged too, but I have to admit that I also am somewhat pleased. I am pleased because there are so many women judges today that an offense like this is even able to happen. In my experience, it was only the women attorneys who suffered being referred to as “honey,” but now we have advanced far enough to have women judges on benches throughout the country deciding cases litigated by male lawyers. And it is happening again.

What a wonderful reversal of power.

Looks like another bastion of BigLaw is falling by the wayside. We have seen big changes at BigLaw in the recent past, but this is really big.

Let’s face it, there was not a lot of choice about Working From Home (WFH) during the pandemic, but the interest in remote work outlasted the pandemic and is still alive and well, at least in modified versions. Although some of the BigLaw membership have floated mandates for five days in the office, the record on enforcement is weak.

Even the billable hour has some big firms advocating for more flexibility and other billing alternatives. Some observers predicted this years ago, but the time was not right. Most of us knew that. But, times have changed, and it is hard to know what is next as firms compete for talent.

But this is bigger than either one of those. Drum roll, please. More and more top BigLaw firms have moved or are moving to two-tiered partnership, as in salaried and equity. For what seems like the beginning of time, equity partnership was the only game in town. But, firms are now understanding that if some of their competitors are adopting salaried partnerships, the job market could become even more dynamic and leave them behind. Associate lawyers, faced with ten years or more to advance to equity, are eying firms that offer salaried partnerships and upgraded titles with more and more interest. It is all about opportunities, and opportunities can create unrest and talent drain.

According to Bloomberg Law, Debevoise & Plimpton, just this week, has adopted the two-tiered model of partnership, joining Paul Weiss, Cravath, Cleary Gottlieb and WilmerHale. Only what has been described as a “small contingent” of firms in the Am Law 100 are still stuck on a sole equity tier, including Jones Day, Ropes & Gray and Skadden. Even Skadden is reported to be giving two tier partnership “consideration.”

This may read like progress — especially for lawyers stuck at the associate level with the associate titles — but you should not make the mistake of thinking that BigLaw management has altruistic motives and is making this change to benefit associate lawyers. For the Pollyannas out there, think again. Call me a skeptic, but it looks to me like these ultra traditional firms are making a change this big because it is in their own best interests. Nothing more, nothing less.

Talent drain is not a pretty thing.

Over the last fifteen years, I have delivered programs on behalf of women lawyers at law firms throughout the country as part of Best Friends at the Bar. Typically, those programs were sponsored by firm-wide women lawyers affinity groups because it was considered important to address the special challenges facing women lawyers as the result of gender discrimination and the work-life issues for mother lawyers, in particular.

However, recently some of those same firms have chosen to capitulate to or cooperate with threats by the Trump Administration in its DEI Executive Orders. By doing so, these firms are sending messages that they no longer consider it important to address those special challenges and others that are lodged under the wide umbrella of diversity, equity and inclusion. In fact, it now appears that some law firms consider it a liability to continue to care about these issues. Large firms, which have capitulated to the Administration’s demands or cooperated with the Administration’s DEI policies, include Kirkland & Ellis, Gibson Dunn, Holland & Knight, DLA and Simpson Thacher. Having presented programs at all of those firms, I am shocked.

The methods of capitulation and cooperation follow similar patterns and include erasure of references to gender challenges and gender preferences, deletion of information regarding community involvement, which might support diversity, equity and inclusion, and dedication of pro bono hours for causes that the Administration deems important. It is as if gender issues and challenges never existed. It is as if the problems presented by those issues all have been solved.

Well, pardon me for not celebrating. Denying the presence of gender challenges in today’s law firms does not make it so. The challenges STILL DO EXIST for two simple reasons — negative human nature that drives discrimination and the laws of physiology that result in only women as childbearers. So, the special gender challenges WILL CONTINUE, in spite of attempts to erase them for political and/or economic gain.

Fortunately, there is a flip side to these approaches. Not only have some firms like Perkins Coie, WilmerHale, and Jenner & Block fought back and sought injunctions against enforcement of the Executive Orders, other firms have refused to be cowed in different ways. Take, for example, Susman Godfrey and its refusal to hide or discontinue a program to benefit law students of color. We learned this week that Susman is forging ahead with this honors program and broadening its reach. And, Susman Godfrey also has become the most recent firm to sue to block enforcement of a Trump DEI Executive Order.

It is good to see these positive developments. Also good to see are results of a recent Above the Law survey demonstrating that 86 per cent of Am Law 100 firms believe that law firms making agreements with the Administration’s Executive Orders are giving in to extortion. Apparently billionaire Barry Diller agrees, according to comments he made to Bloomberg News announcing that he will not do business with firms that “cut deals” with the Trump Administration. If other large business clients agree, that could be a costly message to some law firms.

So, does that mean that those firms that capitulated to or cooperated with the Administration may experience buyer’s remorse? That they may have acted imprudently and too soon? Only time will tell. But what we do know now is that such capitulation and cooperation to government overreach is not what we had come to expect from firms of that reputation and stature.

Caveat emptor in the legal marketplace comes to mind.

As I watch an increase in the number of Biglaw firms that cooperate with or capitulate to Executive Orders generated by the Trump Administration, the reality of this slippery slide from protectors of the law to protectors of the bottom line becomes more and more disappointing and disturbing. By “cooperate” I refer to firms that have not been recipients of Executive Orders and are trying to avoid becoming recipients by taking “independent” actions to erase all references to DEI or anything that smacks of it. Diversity billing codes are disappearing as fast as affinity groups. By “capitulate” I refer to those firms that have gone all in, kissed the ring, and prepare for more demands that are very likely to come their way.

I only can assume that law students are equally disappointed and disturbed by these developments. Their futures are on the line. I have lectured at so many law schools across this nation and abroad as part of the Best Friends at the Bar project, and I have been delighted to meet students excited about their futures and full of enthusiasm to be joining the law profession. And, yet, today I see the possibility of that refreshing enthusiasm being burst like a giant bubble in the face of the impending threat to BigLaw and its response.

I know that I am not alone in my concern. Recently Dean Erwin Chemerinsky of UC Berkeley Law demonstrated his own concerns. In comments made during a presentation exploring the role that lawyers and their firms play in protecting the rule of law in America, Dean Chemerinsky encouraged students to stand up for what they believe is right when making career decisions. He later opined that he thought that a united front by law firms challenging Trump’s punitive Executive Orders likely would have prevailed as court losses for the administration piled up.

“I think this would have gone away relatively quickly,” he said. “I think partners and attorneys at these firms are going to have to make their individual choice regarding whether they’re willing to continue to practice at a place that’s … not standing up to attacks on the Constitution. You, as law students, have a choice to make: If you think you’re going to a law firm, one of the criteria — maybe the criteria — to use to decide is whether you want to go to law firms that fought … or law firms that capitulated.” (emphasis added)

I would like to think that other law school deans and law school career counselors are encouraging students to think the same way. BigLaw is only one way to practice law, and if BigLaw is disappointing you, it is time to broaden your search. It might be a good idea to choose a place where you can practice law and be proud of it.

You are young, you are smart, you are innovative. Fear of the future is not in your vocabulary.

You are unbeatable.

In recent decisions, DC Federal Judge Beryl Howell issued an injunction, followed by summary judgment, against the enforcement of any aspect of an Executive Order the Trump administration targeted against law firm Perkins Coie. In her decision, Judge Howell made it clear that those law firms that capitulated to similar Executive Orders would have won — at least in her courtroom.

Judge Howell began her 102-page order by quoting Shakespeare and wrote:

“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies … In purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers’. … Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”

I made a reference to those same words of Shakespeare’s character Dick the Butcher in an article I wrote for the ABA Journal in 2020. The subject of that article was the threat to decency in the practice of law and what I observed to be the changed perception of the law profession. In recognizing the reason that Dick the Butcher went after lawyers — because they upheld the law — I struck the contrast and wrote, “It seems that far too many lawyers today are willing to give up the perception of standing for good, keeping the peace, facilitating justice and embodying positive values. They have allowed the effects of greed and a misplaced emphasis on power to infect their character and distort the profession in unimagined ways.”

I believe we are seeing that “infection” today and the bow to greed in the firms that capitulated to the Executive Orders AND DID NOT HAVE TO. They could have stood for right and the rule of law, but they chose to stand for wrong. I have to admit that, when I wrote that article five years ago, I did not anticipate how very great the threat to decency in the profession would become.

I also identified in a different way with Judge Howell’s decision, specifically with her question whether the government’s raising of security concerns about Perkins Coie was akin to what happened in the McCarthy Era. I know a little about that dark time in history. I was born and raised in Wisconsin, and Joe McCarthy was a US Senator from Wisconsin when he launched his heartless attack on what he believed were members of society with communist leanings. The televised McCarthy hearings were on for hour after hour in my family home. My lawyer father was personally acquainted with McCarthy, and he found the behavior shameful and an abuse of power, and he wanted his family to know it.

To see a federal judge recognize the possible equivalency between the McCarthy Era and what is going on in our society today should REALLY get our attention. Which makes it all the more unfortunate that as many as nine law firms capitulated to the Trump Administration’s outlandish demands in Executive Orders targeting them or have cooperated with the sentiment of anticipated Executive Orders before becoming the target of one. Dick the Butcher’s mission might have been easier today.

Earlier I wrote to you about the Open Letter that associate lawyers from firms across the country signed in protest to the strong-arming of their employer Biglaw firms by the Trump administration. That protest was a valiant effort and deserved recognition.

And now, law students are demonstrating their solidarity by joining the associate lawyers. As described in an article on Above the Law, law students are taking a stance in response to On Campus Interviews by firms like Kirkland & Ellis that capitulated after being targeted by Executive Orders and cooperated on issues of DEI and the promise of millions of pro bono hours for causes identified by and consistent with the Trump agenda. Participating law students have gone the distance and signed Pledges to refuse offers from collaborating Biglaw firms.

This is a bold move by law students. In fact it may be bolder than the response by associates to leave firms over concerns of complicity with executive branch overreach. Although resignation is a big move for any associate lawyer, the reality is that it takes only a few years of practice with a Biglaw firm to earn enough to wipe out most student loan debt. But that is not true for many law students who are taking a stance against Biglaw. Those students may be forfeiting the kind of salaries that allow quick payback of student loan debt, and that makes the decision especially difficult.

Difficult or not, law students are answering the call. Maybe this result should have been expected. When they committed to law school, these students anticipated a career based on respect for the Rule of Law and ethical practice by supervisors and managers who would fight for that result. They had every reason to expect that for the future. And now that future is threatened, and they have so much to lose.

Whether it is young lawyers or law students taking the stance, I applaud the efforts. Ethics and decency in practice have always been a focus for me, and I have written about the subject for years. I was lucky. I learned from the best — my own Dad — who taught me the lessons about ethics and decency in practice which I included in What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice (Wolters Kluwer, 2019). In that book I recognized the similar values of
millennial lawyers and Greatest Generation lawyers and wrote:

“Millennial lawyers want purpose and meaning in their work. They care less about money and power than prior generations, and they prefer healthy law firm cultures and work-life balance. If it is a contest between money and power and greed versus healthy life styles, work-life balance, professional and empathetic behavior, and respect for colleagues, it is no contest.”

Bravo to the kids! And, as it turns out, to the adults as well. Lawyers at all stages of practice are showing up in impressive numbers in defense of the Constitution and our democracy. Yesterday, on Law Day, enormous pro-democracy protests erupted across America and internationally.

Early estimates show that at least hundreds of thousands showed up at more than 1,000 events in the US alone. In NYC, an estimated 2000 lawyers rallied in support of the Rule of Law and the judges who interpret it. Protests also occurred across the world, in Germany, Spain, France, Taiwan, Indonesia and elsewhere, as demonstrators celebrated International Workers’ Day and rallied against the Trump regime.

What we are seeing could be a movement. And I like it.