In 2008, we made the “Qualcomm Six” our lawyers of the day. The six were outside counsel for the technology company in a patent dispute with Broadcom and got caught up in an electronic discovery scandal – tens of thousands of documents were not turned over in the case. The six attorneys were sanctioned by Magistrate Judge Barbara Major for “intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.”
But upon further scrutiny, the sanctions against the five lawyers from Day Casebeer and one from Heller Ehrman were lifted. When attorney-client privilege was waived so that they could speak in their own defense, it became clear that Qualcomm employees had stonewalled the lawyers. From the ABA Journal:
In her ruling lifting sanctions, Major noted an “incredible lack of candor” by Qualcomm employees and said there was no bad faith by the lawyers.
So yay! No sanctions! But what of the over two years that these lawyers have had this hanging over their heads? As I’m sure many of you recall, the beginning of 2008 was when the legal industry began to self-implode. Day Casebeer merged with Howrey. Heller Ehrman really self-imploded.
All the while, these six lawyers have been in sanction limbo. The four partners involved had more to fall back on. Day Casebeer partner James Batchelder jumped on the Howrey bandwagon. Heller Ehrman’s Stanley Young wound up at Covington. Casebeer’s Christian Mammen and Lee Patch went off on their own.
But what if you’re a junior associate caught up in this mess? In early 2008, no less. Adam Bier (NYU Law ’04) had joined Casebeer in 2005 after clerking. He was part of a large team of junior associates staffed on the Qualcomm case. Though he wasn’t involved in the initial discovery, he did help stumble upon the mass o’ undisclosed documents while preparing witnesses for trial, and thus had the distinction of being involved in the sanctions.
If you were job searching in 2008, you know it was tough. Imagine if you had the added disadvantage of a hugely publicized discovery scandal and sanctions on your resumé. We caught up with him yesterday about how he made it through the wilderness, and eventually started his own firm…
KASH: What was it like to be a junior associate at the firm and to get caught up in this?
ADAM: It was kind of horrifying when the original Order to Show Cause came out. Given my lack of involvement in the relevant part of discovery, I certainly didn’t expect I’d have to deal with this.
I don’t remember the chronology perfectly, but when the sanctions order came out, I was making plans (at that time still unannounced) to leave the firm, because I wanted a different kind of practice and also wanted to be in San Francisco, where I was living, instead of 50 miles to the south in Cupertino. I was still trying to figure out precisely what I was looking for, and having conversations with headhunters, but I had a strong feeling I wanted to either go immediately into some kind of transactional practice or into a firm that (unlike Day Casebeer) did both litigation and transactional work, so that I could transition into transactional work when the time was right (which would hopefully be soon).
Patent litigation certainly can be very intellectually stimulating, but I had always really wanted to be in a position, at least eventually, to build my own practice, and bring in my own clients, and to help them really build their businesses in a broad sense, as opposed to only getting involved when there was a big dispute. Of course, no one ever learns anything about non-litigation practice in law school, and I obviously didn’t while clerking, so the idea of getting out of litigation was only just coalescing in my mind when the order came down. I did know I’d have to get out of high-stakes patent litigation to go in the direction I wanted, in any case. But this of course turned out to be somewhat suboptimal timing.
KASH: So this changed/inhibited your plans to leave?
ADAM: Well, it didn’t inhibit my plans to leave, so the first part of my plan worked ok. But it did make the “gentle” transition I had intended to make not really feasible. When the order came out, I had been in informal discussions with a couple headhunters and some lawyers at a few firms (who had some suggestions for people to talk to). But right around the same time, all the Biglaw lay-offs started happening.
So all of a sudden, my plan to explore for a bit before leaving my old firm and then make a jump, either straight into some kind of transactional practice or into what I hoped might be a hybrid practice leading ultimately to what I envisioned, became infeasible. Corporate and tech transactions jobs dried up overnight, and even the litigation job market contracted. And I was completely unsure how the whole Qualcomm thing would affect me, on top of that. I think no one knew.
And, as you can imagine, my involvement in the ongoing Qualcomm sanctions proceedings further soured my take on litigation. So once it became clear that an easy transition wasn’t going to be just around the corner, I decided I really needed to get out of what I was doing, which was making me even more stressed and kind of miserable (and the 100-mile daily drive didn’t help at all), so that I could wait out the market and maybe do some further exploration with room to breathe. So I decided to stick it out through bonus season, and discussed my plans with my bosses, and then took a bunch of vacation time (which I had, like many associates in Biglaw or comparable boutique firms, not had the opportunity to use), and then officially left the firm in April of 2008.
KASH: All the while, the sanctions stuff is ongoing, and it’s unclear where that’s going to go, and the market is getting even worse…
ADAM: I kind of just tried to not freak out about finances, and spent some time doing things I had wanted to do but had not had time for at my old firm. So I co-chaired the opening night gala for the San Francisco Opera (I serve on the board of their junior auxiliary) and then travelled a bit to work on the Obama campaign. And basically felt I was not willing to just sit around and wait for things to straighten out.
KASH: It sounds like you made the best of it, but, beyond gala-chairing and O-campaigning, that sounds horrific.
ADAM: Yeah, it kind of felt like that, but I kept busy and tried to appreciate the dark humor in it all.
I mean, it was all totally unfair, in my view (and that of many others, I was told), but unfair things happen. And, in all seriousness, if the unfair thing that gets to happen to me is a big obstacle in my career that ultimately gets me to think about what I really want to do and accelerates my plans to move directly where I want to go with the next stage of my professional life, that’s not too bad, all in all. It’s not cancer. I don’t mean to be glib at all, but as far as undeserved bad things go, this really isn’t so bad. I really mean that.
KASH: I imagine having sanctions over your head is a major disadvantage while job searching?
ADAM: Oh, it was totally a disadvantage. I mean, after getting back from Toledo (where I worked for the general election), I talked to a couple headhunters who said flat-out, they couldn’t possibly help me in this job market given the Qualcomm thing hanging over my head. These are people who were all too happy to talk to an NYU grad with patent litigation experience before. Mind you, I had no intention or desire to go back to patent litigation, or probably any litigation, but it was a bit disheartening. And even a couple very senior partners at big firms who I had been put in touch with by various friends and colleagues largely said the same thing.
KASH: So what did you do at that point?
ADAM: There were not a lot of options at that point. I ultimately ended up accepting a 6-month fellowship with a renewable energy nonprofit in San Francisco, where a friend was on staff. I felt it would be a chance to learn and make connections in the renewable energy space, which is quite interesting and I see it as a future important area for legal business development. All the while, I could help them with their (fairly limited) legal needs, which were all transactional in nature: a bit of nonprofit corporate governance, a lot of trademarks stuff (they run a major certification program), and some energy and land use regulation.
And it also gave me some structure (it’s important to get out of the apartment when you’re trying to plan your next steps!). As the fellowship went on, and it became clear that market was not going to recover anytime soon and that the Qualcomm debacle was going to take quite a long time to be resolved, I began to more seriously consider the notion of hanging up my own shingle now, rather than later.
KASH: Thank god for nonprofits!
ADAM: By virtue of my work for the nonprofit, I was able to get a wonderful scholarship from PLI (practicing law institute), which gave me unlimited CLE. So I started studying corporate and securities law, and bought a couple treatises, which I basically read cover-to-cover. And read all the corporate agreement I could get a hold of (from EDGAR and other sources)
And, by this point, I had a number of friends with startups that wanted legal help. Which of course I had been unable to give them while at my old firm. So I figured, hell, why not start doing that part-time?
They were very patient, and I was very economical. Because of the general lack of time pressure, I could spend the time with some of my first transactions to make sure I got them right, and looked to some experienced corporate lawyers I knew as mentors. And I realized this stuff is really fascinating, and totally my cup of tea.
And the notion of being part of actually building real THINGS, these new entities, that actually make and sell things, and being really valued by my clients for that was (and is) really appealing.
So when my fellowship ended [in April 2009], I decided to really do it.
Shortly after formally opening up my shop, I started to get a number of referrals from friends at other firms (mostly for tech and media, and tech-media startups). And then I happened to get a very interesting referral from another friend, who was doing litigation work for a foreign corporation that had a U.S. subsidiary.
And that turned out to be a great client, and I realized this was a good niche. The legal issues involved are not unlike those faced by startups, and there’s a lot of outside general counsel-type work those corporations need, and I delivered a WAY better value than big firms for those purposes. I’m able to handle a lot of corporate matters on a flat-rate basis, which seems to be very appealing to business clients, and is, frankly, a lot less of a headache from a record-keeping perspective.
KASH: Did the matter of being sanctioned come up or was it not an issue once you were working on your own?
ADAM: No, the whole sanctions thing has never come up with any clients or potential clients. I mean, it was in the news, but I never heard anything from anyone other than lawyers I knew or would meet about it. And those folks were universally sympathetic.
So in one sense, going into business for myself was the best thing I could have done from the perspective of minimizing the impact of the whole sanctions debacle.
KASH: How has your lifestyle changed since leaving Day Casebeer?
ADAM: I’m living VERY frugally right now. After the election, I got rid of my expensive apartment and started to live more like a college student again. And my net profits from last year were…well, they were at least nonzero.
I really do enjoy business law in all its various aspects: corporate, and IP counseling, and general commercial transactions and counseling. I love my clients. I love my office environment (I split a big open-floor industrial space in a 19th century former water wheel factory with a pair of architects, a consultant, and a designer).
When I was at trial at Day Casebeer, I realized my ideal working environment is basically a bullpen situation, like in a trial war-room. So my office now is a lot like that. No walls or cubes. Just a conference room and secure storage.
But being able to balance it with other things, especially the boards for arts organizations I work with, is so critical to me.
KASH: Do you have any employees?
ADAM: No one permanent at this point. No real need. Would love an assistant who would work for free, but lacking that, I make use of occasional hourly paralegal and legal secretary help.
My overhead is ridiculously low, which gives me a lot of flexibility in how I work with clients, which I really like. So I don’t see hiring any full-time employees until I’m quite a bit bigger.
KASH: So all in all, is it fair to say that being sanction sucked, but got you to redirect your career in a positive direction earlier on?
ADAM: I’d say that’s fair. Who knows what I might have done had the “easy” routes not been available.
It’s certainly possible I would have gone into some firm and done more years of litigation with the promise of “someday” moving into corporate…and been miserable.
KASH: Any advice for other young associates given what you’ve been through?
ADAM: Well, first, there’s the very specific practical advice I gave in my declaration: Always be cognizant of the discovery status of everything you come across, even if you’re not involved in discovery. This is really an area with a lot of land mines in the era of electronically-stored information. When you do come across stuff you haven’t seen before, document it, and document when you bring it to the attention of others. This can be very hard or even impracticable in a trial situation, but it’s something to aim for, certainly.
In terms of career, remember to keep some perspective. Your career is a big deal. You’ve spent a LOT of money to get your legal education (and you will likely be spending a LONG time paying it back), so I understand that where you are at your particular firm, the chase for the brass ring, the pressures of firm politics all rightfully feel important.
But remember that there’s this whole world of successful people out there, in all sorts of types of business, who have nothing whatsoever to do with the fishbowl life of lawyers in law firms. And, frankly, they think we (lawyers) are kind of ridiculous. Always stressed out, always overworking, always hyper status-conscious.
To mix (mangle?) yet another metaphor, the legal profession is something of an echo chamber. A lot of the values we have going into law are not necessarily valued in Biglaw practice. And it’s VERY ease to lose track of what you really want, what really motivates you in life.
So when you are faced with a number of not-so-great choices in your career (do I stay at this job and be miserable? do I go to this other firm and be miserable? what will happen if this partner doesn’t like me? etc.) remember that there is a whole world out there of other choices.
Some of them might stink, but there are probably a few that you haven’t thought about yet that might be pretty good in the end. And so embracing a bit of risk is probably a good thing. In my case, I can’t really take complete credit for it, since the circumstances forced my hand in a way, but I would encourage associates to keep their eyes open for ways to embrace risk a bit.
Assuming you’re willing to be poor.
KASH: It’s hard for lawyers, trained to be risk-averse (and high-earning)!
ADAM: Believe me, I know.
Adam Bier is happy to talk to entrepreneurs and businesspeople about their legal needs, so readers in Northern California with potential clients too small for their big firms are most cordially invited to be in touch.
817 Days, Now They Can Breathe Again [Legal Pad]
After Sanctions Are Lifted, Qualcomm Lawyers React: This ‘Can Happy to Anybody’ [ABA Journal]
Judge Lifts Sanctions Over Qualcomm Discovery Scandal [Daily Recorder]
Court Rules For Former Qualcomm Lawyers, Blasts Qualcomm Employees [Wall Street Journal]
Sanctions Lifted Against Qualcomm Lawyers (After Damage is Done) [WSJ Law Blog]