Congratulations to WilmerHale on a Major Pro Bono Win
(Plus the WilmerHale warning, and thoughts on law firms trying to crack down on leaks.)
Congratulations to WilmerHale and two of its associates, Ross Firsenbaum and Shauna Friedman. They just scored a big-time victory in a pro bono case.
It’s a story straight out of the movies. WilmerHale’s client, Dewey Bozella, a 50-year-old African-American man, was released from custody earlier this week — after serving 26 years in prison for a murder he did not commit. From the New York Times:
Mr. Bozella would still be in prison except for a few lucky breaks. The first came in 2007, when he contacted the Innocence Project, a legal group that focuses on wrongful convictions. The group, after determining all the physical evidence had already been destroyed, asked the high-powered law firm of WilmerHale to handle the case on a pro bono basis.Ross E. Firsenbaum, a senior associate, said the firm’s lawyers had spent 2,500 hours — worth $950,000 at customary rates — on the case, the kind of representation almost never available to indigent convicts.
Will Bozella file a wrongful imprisonment lawsuit — perhaps represented by Wilmer, on a contingency basis? It could yield up a nice chunk of change (to make up for the nearly $1 million in non-billable work). Given all the firm has done for him, Bozella certainly owes WH a debt of gratitude.
Anyway, it’s a remarkable case. Read more about the victory in the NYT and Am Law Daily.
Such success is not entirely surprising. Although WilmerHale has one of the country’s top appellate practices, WH lawyers know their way around the trial court too. As noted in the firm’s ATL Career Center profile,”[t]he firm is known for its litigation expertise, as well as its regulatory practice and Beltway connections.”
Meanwhile, in other firm news, we got our hands on the WilmerHale warning memo that we mentioned earlier this month. Truth be told, it’s a little disappointing — not nearly as scary as we were led to believe.
We were expecting associates to be threatened with 26 years of imprisonment (or doc review) for leaking firm information to ATL. Or maybe waterboarding by Bill and Bill. But the actual memo is not unreasonable and fairly tame, guilt-tripping rather than menacing.
Check it out, along with some cautionary words for law firms thinking of clamping down on leakers, after the jump.
If you’re at a law firm thinking about swearing your employees to secrecy regarding their workplace conditions, proceed with caution. A reader advises us:
[I]t might be useful to note that, if the firm has put a blanket prohibition on associates discussing their working conditions, they’ve clearly violated federal law — namely, Section 8(a)(1) of the National Labor Relations Act, 29 USC 158(a)(1). See Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007) (“confidentiality” rule that could be viewed as banning discussion of working conditions violates §8(a)(1)); Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334 (D.C. Cir. 2003) (same w/r/t rule that banned discussion of working conditions with non-employees); Brockton Hosp. v. NLRB, 294 F.3d 100 (D.C. Cir. 2002) (same w/r/t rule that banned discussions of working conditions with other employees).
This is also true with respect to compensation matters — a subject of keen interest to ATL readers, especially around bonus time. From a second reader, a labor and employment lawyer (not at WilmerHale):
FYI: to the extent WilmerHale precludes the ability of associates to discuss compensation information, it may be a violation of Title VII and/or the Equal Pay Act (and possible state and local equivalents). The ability of an employee to discuss and learn about compensation issues, which allows a potential claimant to discover what others are earning and if their jobs and compensation are essentially similar so as to qualify for “equal pay” under the statute (or if illegal discrimination occurred), is an essential need…. It can also be viewed as illegal retaliation if a policy was implemented after the fact, e.g., after someone cooperated with an investigation.
So feel free to email us with your bonus information. If the powers-that-be threaten you for disclosing bonus info, they might be running afoul of labor and employment law (and perhaps antitrust law too, depending on how the threat is communicated).
Now let’s turn to the WilmerHale memo. We’ve reprinted it in full below, and we welcome your analysis of it in the comments. Here’s the money quote:
We each have an obligation to the institution of WilmerHale, and we each have an obligation to protect the confidentiality of information provided to us. That this is true has been obvious to many. We hope it will be for all.
This language attempts to invoke a sense of firm loyalty to protect excessive secrecy confidentiality. We’ve heard this sentiment before. At one conference we spoke at, an irate law firm partner asked: “Why do our associates send you information? Where is their sense of loyalty?
Good question. We don’t torture our tipsters to get info out of them. We don’t pay for news tips. We don’t sleep with our sources — at least not in a “quid pro quo” way. (Yours truly and Kash sometimes date ATL readers, but not to get tips from them; Elie is married.)
Our sources come to us of their own free will. They often provide us with information because they believe that their firms were disloyal to them first, and they want to share their side of the story.
Take the case of WilmerHale. A number of our sources are individuals who feel that they (or their friends) have been treated unfairly by the firm. A common complaint is that good lawyers are being “transitioned” out of the firm based on dubious performance reviews. The affected individuals, not surprisingly, want the world to know that they aren’t bad lawyers — just unlucky. Cf. Shinyung Oh.
Had WilmerHale told the dismissed individuals something like “you’re talented attorneys, but due to the tough economy (and/or the inability of our partners to generate sufficient business), we can’t afford to keep you,” would these lawyers have felt as wronged? Would they have been as eager to air their grievances — and clear themselves of allegations of professional weakness — in these pages?
When it comes to relationships between associates and their law firms, who broke the social compact first? It’s an open question.
WILMERHALE — MEMORANDUM — CONFIDENTIALITY
Each year, we present a “State of the Firm” to all
lawyers and staff in which we describe our financial performance, our
progress against our plans and our goals for the next year. We then
provide monthly updates to the partners and counsel and meet with
associates in smaller groups and collectively for the same purpose. As
we have said during these presentations, we believe it is important
that the larger firm community knows how we are doing and where we are
going. We have chosen to communicate much more financial and strategic
information than do many other firms for just this reason. And, while
much of this information is confidential, we have always trusted the
firm community to treat it as such.
We regularly communicate with associates through the Associate
Communication Task Forces. These groups of elected associates meet
regularly with management to ensure an open and candid exchange of
information. The meetings not only allow management to provide
information on the progress of the firm and other initiatives, but,
more importantly, allow the associate representatives to ask any
question they have. The results of the meetings are reduced to notes
that are then circulated to all associates in the relevant office or
group. Of course, these notes often contain confidential information.
But, again, we have always trusted in our community members to act in
the best interests of the firm.
Recently, and for the first time, someone at the firm decided to
forward the notes to the outside media, which published them. This
clearly was not what we intended or expected. The notes were and are
written for those who are part of the firm today and who understand
the content of the notes in light of their experiences on a daily
basis at the firm. The minutes are also direct and candid, as you
would expect a confidential document to be. Without context, the notes
have much less meaning, and there is little benefit that could ever
result from such a breach of confidentiality.
We continue to believe that we must and should communicate broadly
with the firm community. And, we will. We also recognize that, with
near unanimity, you each have respected our commitment to the
confidentiality of firm business and matters. This recent event,
however, leads us to reiterate what almost everyone knows. We each
have an obligation to the institution of WilmerHale, and we each have
an obligation to protect the confidentiality of information provided
to us. That this is true has been obvious to many. We hope it will be
for all.
Unyielding in His Innocence, Now a Free Man [New York Times]
Wilmer Wins Release of Client Wrongfully Imprisoned for 26 Years [Am Law Daily]
Earlier: WilmerHale Warns Associates Against Talking to ATL — But Has It Worked?
Departures from WilmerHale: An Interesting Internal Memo
Summer Offer Rate Open Thread: Here Come The No Offers
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Comments
FIRST1111
First
First
First
Kudos to the legal team. The Innocence Project (founded by BLS) does great work, and its good that they referred this to WilmaHall
So if no firms are legally allowed to ban discussion of compensation, how does Jones Day get away with their private compensation arrangement/scheme?
the spent 2500 hours? No way. No f'ing way they spent 2500 hours on one pro bono case. Admirable as it may be, that's insane.
6 - Good question! Someone should file a grievance.
Over the alarm rails our borderline parrot. Legal devastates Wedding beneath the welcomed tailor. The stamped preview changes across the dramatic censorship. Legal assesses a steady forecast beneath another visible. Legal repairs the fat detective on top of a continuing racist. Legal overcomes over a generous flaw. Outside this benefit laughs the stumbling specimen. A bond decides! Wilmer Hale tears near Pro Bono. Pro Bono interferes! The lavatory prizes my manual query past a trouble. The boss creed intimates Pro Bono.
Is Lat the gay Asian one?
Lots of firms have wins like this. Don't congratulate firms. Are you an idiot?
10 - Yes. Elie is part-Asian but not gay.
http://abovethelaw.com/2008/10/trademark_forfeiture_of_the_da.php
The actual memo is perfectly reasonable. After the prior extreme descriptions it is good to see the real thing. Also fantastic work on the pro bono front. Maybe WH deserves its high reputation after all.
Also important: The practice of not providing an associate access to their personnel file is illegal in Illinois and California. In fact, employees have a right to copies of their reviews and are allowed to include additional info regarding misrepresentations in their file or mistakes made.
Someone ought to inform Winston & Strawn and Kirkland of this point because right now associates don't have access to their files (and are told they cannot receive them). This practice keeps associates from knowing the true basis of their firing and whether a stealth layoff is indeed happening. Fucked up stuff.
iowa = turkey
13 - Yeah, even Lat admits that:
"But the actual memo is not unreasonable and fairly tame, guilt-tripping rather than menacing."
"WilmerHale’s client, Dewey Bozella, a 50-year-old African-American man, was released from custody earlier this week — after serving 26 years in prison for a murder he did not commit."
Boom goes the racist dynamite.
There is no justice until more white males are arrested.
EQUALITY SECURE
2,500 hours is reasonable. After all, the guy was convicted, and all the physical evidence had been destroyed. It takes lots of legal voodoo to reverse that situation.
The defendant probably did something in his life that he got away with, so his 26 year was for that.
So Mystal is not the Walrus?
ZZZZZZzzzzzzzz.
Far more pertinent would be a poll on which ATL editory you would meet in a cemetary with sex toys and prozac.
Obviously, the firm admitting that people were let go because of the economy is the best scenario. But honestly, even if my review had said something like "we think you're a good lawyer but we don't see you on the partnership track," I would have felt better than I did listening to a review that contained outright lies (and by this I mean claims about how I turned down work, which I never did, and how I hadn't done "any" business development in a particular area, when I had done about 150 hours worth). Heck, even if they had just come right out and said "We don't like you as much as this other guy," I would have felt better.
You had better believe that I have no loyalty to the firm (not Wimer) after that, and from what I'm hearing from my colleagues still there, they don't either. This whole experience has taught me to always put myself first and to never, ever be loyal to any place of employment ever again.
I think WH is violating the First Amendment of the United States Constitution (as amended by Dick Cheney) by suppressing its employees' speech!
21: That's the point. The reason why these big firms are the subject to such crazy fodder is because they are absolutely wretched to associates, particularly in terms of laying people off.
Wasn't this the entire basis of Oh's Paul Hastings e-mail. Lay me off. Fine. But don't fucking trash me in the process, mkay?
I do think it will be extremely interesting to see the fall out because the scope, depth and amount of young attorneys who have extreme animosity toward their old law firms is huge. I don't see them doing their old employers any favors, namely as in house clients, AUSA's, SEC attorneys, IRS attorneys, or politicians. It's extremely short sighted.
But I guess the way that firms just up and dissolve and regroup down the street under another biglaw's umbrella points out the fact that big law is a short timer's game. Everyone is looking to cash out, get out, or make out. Including the partners who own the joint.
Kudos to WilmerHale.
The powers that be in this country have been up to no good for a very long time, and although this man's life was basically taken away from him for 26 years, it's good to see that law firms are willing to take a stand and help out the little guy.
Congrats to Wilmer, but this level of ass-kissing is highly inappropriate.
Before today, this level of ass-kissing from Lat had been reserved for Supreme Court Justices, feeder judges, and members of the Elect who have Elect children after being married at ceremonies with guest lists full of judges.
To break from this and kiss the ass of a mere law firm cheapens all prior ass-kissing.
I could see these sorts of words for Seth Waxman, but for the mere institution of WilmerHale, I submit that they're inappropriate.
25 - Uh, did you read the part after the jump?
25, I concur big time. Adoration should be given sparingly, and certainly not sloppily tossed toward ANY firm - much less a firm outside of the V10.
Really glad WH's pro bono achievements gave ATL an excuse to apologize for the completely sensationalistic, fabricated story about threatening employees through the memo. Not that this amounts to an outright apology--but hey, I'm not going to hold ATL to the standards of actual journalists.
28 - Because you're such an expert in "actual journalism"?
"Lat's writing has also appeared in the New York Times, Washington Post, New York Magazine, New York Observer, and Washingtonian, among other publications."
http://en.wikipedia.org/wiki/David_Lat
Ah, yes, the man who just spent 26 years in jail "owes" the law firm something? Christ almighty...
30, they did spend thousands of hours working to help the guy. He can at least write them a thank you note.
They weren't the ones who put the guy behind bars.
The WH memo was posted in the comments weeks ago:
http://abovethelaw.com/2009/10/wilmerhale_warnings_are_counterproductive.php?show=comments#comment-1270800
"Yours truly and Kash sometimes date ATL readers."
So you're saying we do have a shot at Kash!!
21, well said.
Lat has a point on the social contract, and, while it only takes one outlier to make a story, it definitely takes a whole lot of breaching on both sides to make AboveTheLaw.
29--I'm pretty sure you don't need to be a journalism expert to recognize a journalistic failure. I also don't think that getting some publications in newspapers makes you a good journalist.
Anyway, why are you so interested in defending ATL? It's clear in this case that they made a preventible mistake, which had serious PR consequences for WH. I don't think I'm really saying anything too surprising here.
21 - I learned that long ago. Always look out for #1.
35 - Why are you so interested in defending WilmerHale?
They don't seem very eager to defend themselves to ATL. So if they don't care how they look in the pages of a blog, why should you?
The NLRA seems irrelevant. No one's talking about a blanket prohibition on discussing working conditions. The incident which gave rise to this discussion reportedly involved an employee forwarding a confidential document to ATL. The law firm never said he/she couldn't discuss working conditions in general.
A pro bono case is never a victory for an attorney, (or for the legal profession). 2500 unbillable hours---I'll bet all the other inmates are lining up wanting their 2500----if they got that extra time--they can just come and mow my yard--I'll throw in beer (domestic). Why pay attorneys when they're free? The enemy is us. When Gregory Peck played Atticus Finch in TO KILL A MOCKINGBIRD, you can damned well bet he got paid as an actor.
36 - I'm not interested in defending WH. I've certainly criticized them in the comments of other ATL posts. My purpose is expose what's really going on here: an oblique (and insufficient) apology for a serious mistake on the part of ATL. The previous post about WH was extremely critical and misleading. It was insufficiently researched, and it also failed to address the most serious accusation against WH: that it fired someone because they leaked a document to ATL.
I just want readers to be aware of ATL's mistakes in this case, and discount the information they get through ATL in the future accordingly.
Exactly, 33! Talk about burying the lede...
Lat - I have a better headline for this post:
WilmerHandjob.
Yet another multiple page huge post on WilmerHale, this time to cover up the total bullshit of the last truly nasty, truly sensationalistic and clearly designed to further Lat's own interests (his little phone-in deal the day of/after on law firm secrecy) post.
Nice that it came out weeks later so that it looked less like a retraction and more like a follow-up, despite the fact that the memo (and true story about the gross, loose-with-his-hands douche who supposedly leaked earlier, and by the way claims at least to be Lat's friend) had been discussed in the comments and mailed to ATL more than once.
I used to have respect for Lat, at least before he allowed Ellie to take over. Now I see he is just as terrible as Ellie, if not actually worse as I think Ellie is simply incompetent where in this case Lat demonstrated incompetence, menace in his reporting, cronyism (alleged) and pure self-interested bias.
Screw you ATL.
- WH associate tired of a decent, though certainly not perfect, firm getting crapped on
PS - let's all note the date and time of this post. Way to find the weekend slump to sweep it under assholes.
- 42
42-there are many fine brands of decaffeinated coffee available at most markets these days. Not being a lawyer, I will not address the legal issues re disclosure, etc. I do offer my heartiest congratulations to the team and especially Mr. Bozella. I trust he will be able to receive some monetary award from the State of New York, although there is really no recompense for 26 years of wrongful imprisonment.
38 - you're probably a troll, but I'll bite anyway. My firm (like many biglaw firms) takes circuit court appeals of habeas corpus petitions, frequently based on ineffective assistance of counsel or other trial issues. There's merit in making sure the system works in at least a somewhat just fashion, billable hour or no (and how else are you going to get a circuit court oral argument in biglaw as an associate?). The stuff you see happen in criminal trials will shock your law school procedural sensibilities.
I take issue with Lat's statement that this man owes some debt of gratitude to WH. We all owe our apologies to him. He owes nothing to us. Good on WH attorneys, as individuals, and WH as an institution, to seeing to his release. But he doesn't owe anyone shit. He's paid in full.
How was the headline to this story not, "Kash Dates Readers"
What the hell was the rest of the story about? The guy from That 70's Show changed his last name to Hale and did a made-for-TV movie about saving some guy from death row?
They fired someone who leaked meeting minutes to the media. I see no wrong in that.
Injecting lies into an evaluation is another story...
Biglaw cares about money...period. They do not really care about pro bono.
They only care in as much as they get good PR so they can make more money,
I never do pro bono. If it's that important to society then the tax payer can pay for it through legal aid like thye do in most other western countries.
It's the typical US way: pay lip service about the importance of something and then fail to fund it.
38 back to 45. Thanks for biting. Early on, I thought there would be enough paying business practicing law to float occasional pro bono---but each year the clients get stingier, and the competition keeps cutting their rates. It seems there is no middle class clientele anymore, only the increasing poor wanting it free or the mighty corporations telling you how much you'll make, what you'll do for it, and if you want their profitable business you'll take their unprofitable business also. When the poor call, they don't request pro bono, but demand it. Either way, after passing the bar in 88, my law school procedural sensibilities not only can't be shocked anymore, but faded away. Given a choice of being a troll or a sugar plum fairy, show me my bridge to stay under. Doing pro bono to get circuit court oral argument exposure----never had to, and don't believe judges want someone going to court for the experience of oral argument instead of settling. Congrats on remaining optimistic. Happy Halloween. (Maybe it's not too late to find a troll costume).
The legal profession will be better off when it gets out of the business of giving away services for free. For that is no business at all.
Kash, when are you going to let me take you on a date?
HOLD THE PHONE- 42- did Lat get a verbal spanking by WH???
Seriously, we get victory emails all the time at WH, and not all of them are for corporate clients. WH does lots of sexy pro bono. So, let's dig deeper into what the firm said to Lat......
The memo post was way overblown.
BigLaw associates are by and large abused and feel a tremendous amount of resentment toward their employers - yes, they pay ok (a small fraction of what you generate in revenue in good times, but ok), but they more than take it out of you.
The idea that any more than a tiny fraction feel much loyalty toward their employers, the same ones who take their nights, weekends, and holidays, yell at them, lie about them in their reviews, and otherwise treat them like indentured servants is laughable. Firms don't pay NEARLY enough after that kind of treatment to get loyalty from most people, not after a few years of the beatings.
It's just doggone hilarious that WilmerHale refers to itself in internal memos as "the institution of WilmerHale", as if it's a museum or university. I suppose the idea of having an obligation to an "institution" sounds better than having an obligation to a for-profit limited liability partnership.