Paul Weiss Waves The White Flag

Episode Notes

Transcript

Joe Patrice:

Hello. Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I am joined by fellow Above the Law folks, Kathryn Rubino.

Kathryn Rubino:

Hey there,

Joe Patrice:

And Chris Williams. We come to the show every week to talk about the important things in the week that was in legal. We are a little frazzled today, but we’re going to overcome and get things back together.

Kathryn Rubino:

I think you’re the most frazzled of us all, Joe. I

Joe Patrice:

Mean, I am. Well, let’s go into some small talk here.

Chris Williams:

Bomb.

Joe Patrice:

Yeah, there we go. I don’t have access to the soundboard because I am coming to you from the Above the Law offices in New York where I am camped out on my way to Legal Week. So

Kathryn Rubino:

Another legal tech conference for those who don’t know or care,

Joe Patrice:

Kind of the first one, the first big one of the calendar year. So getting ready for that, which will be grueling. All three of us were at the College Debate National Tournament last over the weekend.

Kathryn Rubino:

We were congratulations to Iowa for winning the final rounds on a six three decision.

Joe Patrice:

Alright, nice. So we were all there, and so all three of us are kind of frazzled from that and turned right around and came here with us today.

Kathryn Rubino:

I’ll tell you, I don’t know if it’s frazzled or some other descriptor that I can’t really think of at the moment, but I woke up to hives all over my face. So yeah, it’s real. I mean, listen, I’m doused calamine lotion at the moment and on some Benadryl, so if I fall asleep halfway through the show, it’s not just that you’re boring, Joe, it’s that I’m also on a fair amount of antihistamine. Okay.

Chris Williams:

Well, one thing I did beside the tournament, I finally listened to songs in The Key of Life by this small artist. His name is Stevie Wonder. There it is. And it was a phenomenal album.

Joe Patrice:

Yeah, yeah. That’s like one of the all time classics,

Kathryn Rubino:

Really. The year of our Lord. 2025 is the first time you’ve listened to that album.

Chris Williams:

Yes, yes.

Kathryn Rubino:

That’s actually impressive. How did you go that long?

Chris Williams:

Well, it came out about 50 years ago, and it just happens to be the case that I’m not caught up on all the phenomenal music from half a decade ago, and this is just one of the albums that was on that list. I will say, this is the first time I’ve heard Isn’t She Lovely Beyond just the lyrics? He goes off for another three, three and a half minutes just playing the harmonica, and I cried. I cried. I was like, my dad did not love me this much. It was a beautiful song and you could hear Proud Father all over the harmonica, and it was phenomenal. It was beautiful. It was just a beautiful album.

Kathryn Rubino:

What was your favorite track from the album?

Chris Williams:

Definitely the one I cried to. I was shook up. That was that moment when I was listening to this and I was like, I wonder if I’m just experiencing the free trial depth of emotions, a depth of love and care that I heard in that album where I’m wondering if I’m feeling correctly. It was beautiful. Just like a depth and breadth of the Human Experience album.

Kathryn Rubino:

Well, that’s good. That’s good.

Chris Williams:

Well, we, let’s get deep,

Joe Patrice:

Deep into dystopia. Let’s get into the dystopia. We will end small talk and begin with our first conversation, Paul Weiss, what’s happening over there?

Kathryn Rubino:

Paul Weiss, big old WSEs, I think is the appropriate way to talk about it. There was another executive order as we know, targeting Paul Weiss because of whatever reasons Donald Trump decides that he hates a big law firm. But largely I think the actions of former partner Mark Pomerance who left the firm. We’ve retired in the firm I think in 2012 or something like that, but had recently gone to the New York Manhattan District Attorney’s office to work on the, let’s be very clear, successful prosecution of Donald Trump. So that meant that his former firm that he literally hadn’t been at for a decade caught the ire of Donald Trump. And it’s really a study in contrasts in a lot of ways because we know we’ve talked about the sort of Perkins Cooey response, which is an aggressive litigation strategy. Paul Weiss did the exact opposite. They showed their belly to Donald Trump, kissed the ring, did all the things, and worked out an agreement with Donald Trump to get the executive order removed.

Joe Patrice:

Now the terms of this agreement are in slight bit of dispute. I know that Paul Weiss has a internal email saying that some of the claims are not accurate, and we did, I think in your article you even flagged that at the time we only had Trump’s personal explanation of what the deal was and you actually did flag as always grains of salt.

Kathryn Rubino:

Sure, but listen, this is what we definitely know. It’s $40 million of Paul Weiss’s pro bono services committed to causes that Donald Trump supports that we know. We know that they have agreed not to pursue their DEI efforts, although whether or not what that actually means for the firm who knows. And what Donald Trump said, which is kind of the bigger sort of questionable area, which is that the firm has agreed not to or according to Donald Trump, the firm has agreed not to let their partisan beliefs cloud their representational decisions. What does that mean? I don’t know. What Brad Carpa said is that there’s not sort of a list of clients that will be approved by Donald Trump, not like a list of case, not like before we take a new case, it has to be approved by Donald Trump. So I guess that’s better than the alternative, but not great.

Chris Williams:

I think what happened was Paul Weiss is now on their intake sheets, determine if they can take on the new client or not. They asked the potential client what their favorite season of The Apprentice was

Kathryn Rubino:

Fair, unless they’re like the Martha Stewart season. Yeah, no, I mean I think that this is really bad, not just for Paul Weiss and Above the Law has gotten so many people sounding off and complaining about what Paul Weiss has done. It’s really, I think I compared it to this kind of response from our readers. Usually only happens during bonus season. So the fact that it’s motivated so many people is quite noteworthy. But beyond that, I think it just bodes awfully for the industry. I think it has emboldened Donald Trump over the weekend. He also signed another executive order targeting the legal industry, not a firm that was specifically mentioned targeted by this executive order. Although the work that Mark Elias does was in fact flagged in the course of the executive order, but saying that basically threatening lawyers who might sue the federal government, that they are potentially subject to rule 11 motions, which is horribly

Joe Patrice:

Chilling. And this goes dovetails with another development that happened, which is the administration seems to be taking the stance that anybody who challenges a government action has to put up a bond to cover all the government’s expenses in litigating that. That is not how the US system works, but that is apparently what they’re doing. That plus this Rule 11 threat really underscores that they’re going to attempt to break the legal profession’s ability to challenge anything they do. So rather than attempt to make things be legal, they’re just going to get rid of people’s ability to point out that they aren’t.

Kathryn Rubino:

Yeah, and I think that what Brett Karp has agreed to, whatever the specifics are, I’m not even sure it really matters as much as it’s clear sort of subservient moment that’s very obvious. I think it’s embolden Trump. I think that there’s no limit now to what Trump is going to try with the legal profession. There is no sort of downside to him targeting every big law firm.

Joe Patrice:

So here’s the question that just keeps running through my head with all of this, which is reputationally, the argument for this full retreat is that Trump could cause problems for the firm. And so the firm needed to protect itself. There’s some argument that as even as soon as they got tagged in the executive order, they lost clients and had people be poached and stuff like that. Now that mind you all stuff Perkins Cooey just put into their motion, but Paul Weiss decided not to go that route. And I’m not disputing factually that some of those things might’ve happened, but reputationally big law in particular is so about branding. There’s so many times there are things that are the right decision or people like, oh, well, and it’s like it’s the right decision, it’s the business decision. But from a business decision for Paul Weiss, I don’t even think this makes sense on that front or if it does entirely short term. Paul Weiss built and has long been very proud of its reputation as kind of a liberal, not left, but the core democratic party liberal Wall Street firm. They put that on their website. Their website talks a lot about the work that they did back in the sixties dealing with civil rights and pushing back against the death penalty. These are all things this firm has built its reputation around. And I understand that they do other things too. And there’s a big corporate practice these days, and it’s not just all litigation. Some of us viewed it back decades ago,

But in the short term, this might help them keep running. But for the long term, how do you convince somebody to join this firm if their branding has been one way and they run like this? How do you convince a client to hire this firm when they’re unwilling to stand up for themselves, I guess is kind of the phrase. The reputational damage, I think is so

Kathryn Rubino:

Extreme. Yeah. I think that this was going to haunt the firm for a good number of years, and I think you’re right. If you are in a do or die litigation moment, are you going to trust the firm that backed away from a fight? It’s a hard fight for sure, but I’m sure. But lots of fights are hard. Lots of fights are existential for the clients. If the firm doesn’t trust their own litigating enough to bet the firm, why would you trust them with a bet? The company litigation?

Joe Patrice:

Yeah, I mean the challenge as Perkins Coie represented by Williams Conley is showing you can win these challenges or at least you have a good case.

Kathryn Rubino:

Yeah, I think legally they definitely do. And this is also in the letter that bride Karp wrote to internally that even if they won it and the legal grounds are very good, that there still would be the perception that their persona non grata for the administration and that would have a negative impact on lots of clients, which I again don’t doubt is true. And I think that your point, Joe, I think that just really underscores how short term in nature the victory for Paul Weiss is here.

Chris Williams:

My thing is, I take for example, when the affirmative action cutback started happening, and there were law firms that were like, yeah, we’re going to fight this. And everybody’s kind of like, we know they weren’t. This is posturing. And then they were like, they bent the knee. At least they were like, we had some Skimm in the game. We gave some resistance. I think Paul Whites was the first to fall without any real pushback at all.

Kathryn Rubino:

I think.

Chris Williams:

So they started the trend of buckling. There are other contemporaries that are at least resisting, show face, save face and say, at least we had some fight rather than giving up at the very start.

Kathryn Rubino:

Yeah, I think you’re right. And if the 21st, I think in the most recent AMLO ranking richest law firm in the nation doesn’t have the power to fight against the administration. Who does? I mean, I think it’s a terrible moment. And certainly Brad Karp thought it was existential threat for the firm, but his decision to bend to Donald Trump makes it existential. Not for one firm, but for the industry.

Joe Patrice:

But for a lot of players, it’s now become existential because there will be firms who get threatened who won’t fight back. And some of that is going to be excusable because some people, it’s not the fight that they are equipped to take on. If you’re a small regional firm that made him angry, you might not be able to do this,

Kathryn Rubino:

But Right. And maybe your

Joe Patrice:

Business, but this is a firm that could,

Kathryn Rubino:

Yes,

Joe Patrice:

Yes.

Kathryn Rubino:

They have enough lawyers.

Joe Patrice:

The fact that they chose not to

Kathryn Rubino:

Is bad, and their business model is varied enough that they definitely had the resources to do it. It’s not the sort of situation where it’s one, oh, our whole business is just in this sort of, it’s just m and a. No, maybe an m and a firm doesn’t fight this fight, but a firm like Paul Weiss sure should be.

Joe Patrice:

Yeah. Alright, well let’s take a break right now and we will come back and do more dystopian talk. Oh yeah, we’re back. I guess, which of these stories do we want to go to next? Actually, we might, since we were just talking about, given what we were just talking about, maybe we should talk about what’s going on. On the Skadden front. This is where we had a associate at banking associate Skadden Chicago, Rachel Cohen, who put together sort of an open letter that hundreds of associates were signing onto, basically calling upon big law to stand up to protect. At the time just really Covington and Perkins who had been hit. Now obviously Paul Weiss joined that group too, but put together this open letter to demand firms take a stance and band to protect the industry at the rule of law by show of force, by coming together.

That open letter didn’t seem to have much effect unfortunately, on some of these firms. We still are dealing with a lot of silence out there. And then the latest shoe to fall is that Cohen wrote a letter, a firm email that is publicly available explaining that she was conditionally resign, giving her two weeks notice, assuming unless Skadden does something about how bad this Paul Weiss situation is. Hopefully I would like to keep working here, but I will leave if you don’t do anything about it. And from what we hear, Skadden’s response was okay and turned her email off.

Kathryn Rubino:

I’m not surprised that that was Skadden’s response to it. They did not publicly respond when the open letter went out. I didn’t think that the resignation was going to change much of their analysis. But honestly, kudos to a third year associate who’s putting her entire career reputation on the line. And it’s not the situation where, as you said, she’s a banking associate. It’s not like, oh, well this shows great forethought in litigation and fighting and blah, blah, blah. This is someone who negotiates deals and wants to do that kind of work. And I thought that it showed some real courage of convictions to get up and take care of business.

Joe Patrice:

And I also think it had a recruiting value because I think that a lot of firms obviously, especially at the top, thrive on a talent war and winning that. And I think that’s another place where obviously the clients are the most important probably for where you built your brand, but it also matters in the lateral recruiting and the on campus recruiting market. And I think part of the message sent by the many, many signatories to that letter

Chris Williams:

Was,

Joe Patrice:

Hey, everybody, all you big firms, you may not be tracking this, but to a lot of us, this matters and we are going to, our talent is going to flow towards the people who stand up in this moment. So I was a little surprised that firms not necessarily one specifically whether it was scattered or whatever, but I have been surprised that given the buzz that generated that there wasn’t some shake up. And some firms coming out and being like, you know what, actually, sure, we support Perkins ey, we support them, and please apply if you have a

Kathryn Rubino:

T 14 law degree. I say, yeah, on that law front, not a necessarily big law, but litigation boutique firm, Ecker Van Ness did write a statement over the weekend in support of Perkins Kuey and also very anti the most recent executive order, the Rule 11 ones we were talking about in the last segment, which I think does show some great foresight. And if you are a litigator that wants to fight, I think that that’s a great lateral opportunity for you.

Joe Patrice:

I mean, it already was. That is obviously a litigation boutique

Kathryn Rubino:

That

Joe Patrice:

We talk about as among the best in the biz. So that made some sense to me. And they are the kind of firm that gets themselves in those sorts of high stakes fights. So I think it probably matched well with what the kind of work that they like to do too,

Kathryn Rubino:

In a world full of Paul Weiss’s, be Ecker Nest. A Hecker

Joe Patrice:

Nest. Yeah. Real bad. And I just still keep coming back to the fact that it’s Paul Weiss. There are so many firms that this would be weird, this would be a story about, but a firm that has spent so much time trying to build out their reputation. I think you have a story. Kathryn, did you dig up? Paul Weiss had a very different response to the first Trump administration.

Kathryn Rubino:

Yeah. There was an interview that Brad Karp did back in 2018 that was really, really interesting. He kind of went off in an interview at a LM about sort of having to have values and standing up for what’s right and how that’s so important and how that’s the backbone of Paul Weiss and of law and all this kind of stuff. And it’s very, very interesting that they sing a different tune in 2025. So sort of the differences between those years are quite stark.

Joe Patrice:

It really is. It really was kind of a weird gut punch. I felt like this is not the one that I would’ve assumed would be the first default like that.

Kathryn Rubino:

Yeah. Yeah. If you had told me Skadden, oh cool. Well, okay.

Joe Patrice:

Nothing against them, but we wouldn’t have been, nobody would’ve sat around shocked about it or

Kathryn Rubino:

Anything. Sure. This is noteworthy, I think.

Chris Williams:

So what have y’all seen on Facebook or Blue Sky of other people’s responses to what’s been happening? Of course, we know ours, but our response to it. But I remember the thing that caught me off guard was had a call our professor and I was like, Ooh, the year they’re really even mad about this, even if it’s just civil stuff. Was there any unexpected things you saw from social media?

Kathryn Rubino:

Yeah, I mean, I think everything, and listen, your, for you pages are very much calculated to be the kinds of things that you like, but I have not seen very many people stand up and defend Paul Weis. I think the closest thing I saw was an A LM interview with a NYU law professor who said, well, this makes sense as a business decision. And I don’t agree with that take. I think Joe’s is much more right that it is at best a short-term victory. But the responses that we’ve gotten and what I’ve seen just across social media has been just horrified. And one of the things that I think is kind of interesting is that, of course, lawyers are always going to be talking about this. This is very important for people who know what Paul Weiss is know their reputation from 10 years ago, know that it wasn’t that long ago that Brad Karp was talking about social justice initiatives and crusades and having to safeguard the rule of law. But what’s interesting about this story is that it has really crossed over to mainstream media. I think you’re seeing all sorts of outlets that don’t necessarily talk about big law regularly all of a sudden talking about this. And I think that that really sort of changed the way the story is.

Chris Williams:

I wouldn’t be surprised if this ended up in Teen Vogue or something.

Kathryn Rubino:

Yeah,

Joe Patrice:

A

Kathryn Rubino:

Hundred percent.

Joe Patrice:

It strikes me thinking about the reputation thing. I had to go check to verify this quote because it’s one that I always remember that. So Arthur Lyman used to say that of who was Paul Weiss partner. Every economical and social upheaval in this country has found its way into our office. And in a sense, I guess it has, again, probably not in any of the ways that Lyman was talking about though

Kathryn Rubino:

Mean, and the interesting thing is, is this 2019 interview that I was talking about that Brad Karp does, he specifically calls up Lyman as being one of his mentors and one of the people he really owes a debt of gratitude whose leadership he owes a to attitude to. And it feels very much like the opposite of what someone like Lyman might’ve done.

Joe Patrice:

Well with that, let’s take a break and come back on the other side for a a slightly different story. Alright. This one doesn’t deal with big law stuff at least, but this is the ongoing battle where the administration is calling for the impeachment and worse of a judge in DC for the ruling in this Venezuela case. For those who aren’t paying attention to this one, this is where the administration rounded up a bunch of people that they claimed were Venezuelan gang or Venezuelan gang members, and then flew them all to a slave labor camp in El Salvador.

Chris Williams:

By bunch, it was like 200 people, right?

Joe Patrice:

Yeah. Yeah. It was like two plane loads of folks. So when they were countered by the judge with, well, you can’t do that, their immediate response was, well, sorry, the plane is in international waters. Which again, I thought this was the Gulf of America now. But two, that’s not how these things work. While the person being commanded to do something is the US government who is still very much not in international waters, the fact that the plane is in international waters does not remove it from the US government’s control. So when the order came down, it absolutely still applied. They followed up this with saying, well, we’re not sure that an order is official until it’s written down. That would be news to judges. And I think just showed kind of the lack of good faith going on here. But one story that we had that really took on a life of its own is digging through the explanation for why they said they felt comfortable deporting these people, several of whom we now know are not gang members by any scratch. And again,

Kathryn Rubino:

Unconvicted, right? People are not convicted of privacy.

Joe Patrice:

And so that’s the story that we’re talking about, which is these folks that are now being sent to this camp, this supermax slave camp, they aren’t convicted of anything. And look, there’s massive power in the immigration arena. If somebody said, if the administration wanted to say, we’ve decided these people are deserving of deporting, there’s a lot they can do along those lines. But what they can’t do is when they couldn’t put them in a prison in the US say, well then instead we’re just going to put them in a prison in El Salvador. So these are people who are unconvicted, what the briefing, when they’re confronted with the question of, Hey, these people are unconvicted, their response to it is honestly the fact that we don’t have a lot of evidence that they’ve done anything criminal is itself very suspicious,

Chris Williams:

Which is a boondocks joke. Remember, the absence of evidence is not the evidence of absence. I think it was the character that Samuel Jackson voiced. So yeah, another in the comedy is actually just predicting the future of bucket.

Joe Patrice:

Yeah, this is the part that’s actually the most disturbing, put aside everything else, the idea that they are trying to create some degree of precedent for we don’t have enough evidence, and that shouldn’t matter. It seems problematic. And now again, the lower civil, because as people point out all the time, the immigration violations are civil things, but that means that what you can do is kick them out of the country if you want. But when you can’t put them in prison, you put them in prison. The idea that by taking them across a border now means that they can be imprisoned. I mean, it’s an expansion of the rendition argument basically, that the younger administration pushed, although at least with that one, their argument was these are folks who are actively enemy combatants, so therefore we could send them to Uzbekistan or whatever to be in a prison.

And while there’s, there’s several good reasons why that might not be constitutional. There’s a lot more room in wartime, which is where the administration here is trying to claim that this street gang in question is an enemy combatant. That is not how that works. But they’re trying to invoke foreign policy powers for that purpose so they can get kind of a doctrinal hook on this rendition argument. But it’s up is down, down is up style argumentation. It’s really problematic. But it’s mostly, I’ve said there’s still, and you see it on social media and stuff, these people who are Trump folks historically who feel like, oh, well it’s just going to be getting rid of the bad guys. That’s all immigration’s going to do. And it is absolutely not going to only do that. Indeed, probably not primarily at first because people who are actually unquote bad guys are pretty good about not getting caught. That’s kind of their jam.

Kathryn Rubino:

They has an experience there.

Joe Patrice:

But who’s really easy to catch are people who they just like the barber or whatever, who they picked up because he had a tattoo and they said, we think that’s gang related. But apparently there’s no evidence to suggest it is The fact that they’re starting with these folks who they don’t have any good evidence on is the point because they don’t want to have to go to the trouble of dealing with the folks who actually are bad guys, because that’s hard. But it’s very easy to do this and to hope that they can get the court victories along the way that they want, which would then embolden them to expand this program.

Chris Williams:

If you have any interest in the notions of liberty or resisting tyranny, this presumptions flip, which is what it is, it’s presumed guilty. And so proof innocent should be making people sound alarms. Libertarians should be coming out in force. Republicans to the degree that they still exist should be coming out in force. And the fact that people are like, well, criminals, BCR is a shame.

Joe Patrice:

Yeah,

Chris Williams:

It’s always a shame, but it’s especially a shame for,

Joe Patrice:

I will give credit to a lot of the libertarians, some of the more libertarian organizations in law that we deal with who are right-leaning libertarians. I have seen several of their writers be active on social media about like, whoa, whoa, whoa, whoa, whoa. Which, like you said, that is what hope to see. It is not universal, which is the problem. But I have actually been, there’s very few things that give me heartening these days, but I was a little heartened to see some of the more dy in the wall, right wing libertarians be like, wait a minute,

Kathryn Rubino:

Hold

Joe Patrice:

The phone.

Kathryn Rubino:

Hold. That’s not what I thought I voted for even when he said it.

Joe Patrice:

Right, right. Yeah. Well, alright, so thanks everybody for checking us out this week. You should subscribe the show, give reviews, write things, all of that stuff you should be reading Above the Law. So you read these and other stories. Before we get to them, you can check out some other shows. Kathryn’s the host of the ot. I’m the guest on the Legal Tech Week Journalist Roundtable. You should be listening to other shows on the Legal Talk network. You should be following social medias. We’re at Above the Law dot com on Blue Sky, I’m at Joe Patrice. Kathryn one writes for rent similar things over at Twitter, the increasingly irrelevant Twitter, although I’m Joseph Patrice over there. And with all that said, I think we are done and Happy Legal Week, I guess to those who celebrate peace.

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