Judicial Notice (04.15.23): Biglaw Bad News

Deferred start dates and staff layoffs, another Cravath partner departure, and other legal news from the week that was.

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Can you believe this weather? This week, we turned on our air conditioning for the first time this year—only a week or two after we stopped using the heat. It feels like we’ve gone straight from winter into summer, skipping over spring—except when it comes to seasonal allergies, which have been brutal for me and our poor son Harlan. He has been sniffling and rubbing his eyes constantly, refusing to blow his nose or take eyedrops. But at least he’ll take children’s Zyrtec; if you have other suggestions for helping a kid with bad allergies, I welcome them.

When not busy dying from allergies, I recorded a new episode of Movers, Shakers & Rainmakers. Zach Sandberg and I interviewed Darren Heitner, a prominent figure in the world of sports law. If you’re one of the many lawyers interested in breaking into that hard-to-enter field, or if you’re just generally interested in sports and entertainment law, definitely give it a listen.

Now, on to the news.

Lawyer of the Week: Ted Boutrous.

Is there a double standard when it comes to Biglaw firms’ willingness to handle controversial cases and clients? As Aaron Sibarium points out in this piece for the Washington Free Beacon (in which I’m quoted), lawyers who want to represent Donald Trump often end up resigning from their firms (unless they work at Jones Day)—even though Biglaw firms have represented a number of Democrats in sensitive matters over the years, including Bill Clinton and John Edwards.

There is, however, a strong argument that Trump is uniquely toxic. This might explain not only why lawyers must leave Biglaw to take him on as a client, but also why lawyers can remain happily ensconced in Biglaw while publicly declaring their desire to take him down in court.

In 2016, that’s exactly what longtime Gibson Dunn partner Ted Boutrous did. The noted First Amendment lawyer publicly offered to provide free legal representation to any news organization sued by Trump for reporting sexual misconduct allegations against him. And now Boutrous, famous for his perfectly coiffed silver mane as well as his courtroom skills, is taking on Trump in a different way.

Boutrous represents Manhattan District Attorney Alvin Bragg in the lawsuit Bragg filed on Tuesday in the Southern District of New York against Representative Jim Jordan (R-Ohio), the Trump ally who as chairman of the House Judiciary Committee is trying to investigate Bragg’s prosecution of Trump on 34 felony counts of falsifying business records. Specifically, Bragg’s 50-page complaint seeks injunctive and declaratory relief to prevent Jordan from enforcing a subpoena seeking “highly sensitive and confidential local prosecutorial information that belongs to the Office of the District Attorney and the People of New York.”

I agree with the Advisory Opinions crew, who described the complaint as not just a “speaking” complaint but a “screaming” one, “grandstanding about grandstanding.” But I also agree with them that despite reading like a press release, it’s right on the law, and the subpoena is probably not enforceable. And I agree with Andrew Strickler of Law360, who opines that the lawsuit “further cements Boutrous’s unusual position in the A-list appellate and constitutional community: a Biglaw leader steeped in a conservative legal tradition who morphed in the Trump era into an outspoken ally of progressives and free-speech advocates.”

Speaking of Trump-related publicity stunts that might also have legal merit, the former president has sued his former lawyer, Michael Cohen. While Trump’s $500 million demand seems ridiculous, his claims that Cohen violated their attorney-client relationship and a nondisclosure agreement are not facially frivolous—which can’t be said of everything Trump files in a court of law. When contacted by phone by the American Lawyer about the complaint, Cohen briefly answered, uttered an expletive, and hung up. Sounds about right.

In memoriam:

• Nancy Lieberman, an M&A powerhouse and longtime partner at Skadden Arps, passed away at 66.

• Richard Levick—a lawyer turned leading crisis-communications consultant, who often worked with law firms or on law-related issues—passed away at 65.

May they rest in peace.

Judge of the Week: Judge Pauline Newman.

For many years, the way the federal bench dealt with “problem judges” was… it didn’t. See, e.g., C. Ryan Barber and Camila DeChalus’s detailed examination of the issue for Insider, or Ken White’s disturbing account of how, decades ago, he and other staffers to a judge with a substance-abuse problem tried to get that judge’s colleagues (including the chief judge) to address the situation—without much success.

My anecdotal sense, based on a number of situations of which I’ve become aware, is that the situation has improved significantly in recent years. To their credit, judges, especially chief judges, are more willing to get involved when a colleague is no longer able to discharge the judicial role effectively. This is usually handled discreetly—e.g., a chief judge meets privately with a struggling judge to express concerns, and then that judge quietly retires.

But what happens when a judge refuses to accede to such pleas? That brings us to the current controversy surrounding Judge Pauline Newman—who is, at age 95, still an active-status judge on the Federal Circuit, adamantly opposed to retiring or even taking senior status.