Was This Judge's Reprimand Of Kirkland & Ellis Justified?
Everyone loves a good benchslap, but not all benchslaps are good.
Yesterday we wrote about a harsh benchslap that Judge Nicholas Garaufis (E.D.N.Y.) inflicted upon a third-year associate at Kirkland & Ellis. Judge Garaufis was incensed over the fact that K&E sent an associate rather than a partner to cover the initial status conference in the case, an action against Facebook claiming that the social media giant facilitates terrorism by allowing terrorists to use its services.
The partner couldn’t attend because he was called away to Texas on another case. This didn’t sit well with Judge Garaufis, who took it out on K&E associate Aulden Burcher-DuPont. We now have the full transcript, whose relevant sections we will now share (all emphases added).
THE COURT: How long have you been with this law firm?
MR. BURCHER: One year, your Honor.
THE COURT: One year: I don’t disparage your brilliance. I’m sorry. Kirkland & Ellis sent a first-year associate to United States District Court to talk to a federal district judge about this case.
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Burcher is actually a third-year associate — he graduated from Penn Law in 2013 and worked at Mayer Brown from 2013 to 2015, before lateraling over to Kirkland — but anyway….
THE COURT: You are admitted in this court, right?
MR. BURCHER: Yes, your Honor.
THE COURT: Right. You are admitted. You tell your folks back at Kirkland & Ellis that I don’t much like the idea that they think so little of this court that they didn’t send a partner here to talk about this kind of a problem which implicates international terrorism and the murder of innocent people in Israel and other places.
MR. BURCHER: Yes, your Honor.
THE COURT: No. Don’t say anything else. I think it is outrageous and irresponsible and insulting and you’re not the person doing the insulting. It’s whoever sent you here. Facebook pays millions of dollars to lawyers. This is a real problem. Whether I can solve it judicially is problematical perhaps. But I want to talk to someone who talks to the senior management of FaceBook. Next time they send a partner.
MR. BURCHER: Yes, your Honor. The other lead attorney in this matter was called away earlier this week — as we communicated to opposing counsel — that there was an emergency hearing in the State of Texas.
THE COURT: They do a lot of things in Texas that I don’t really like very much either. So I’m not impressed that Kirkland & Ellis, a law firm with how many thousand people in it, two, five? How many thousand lawyers are there at Kirkland & Ellis?
MR. BURCHER: I believe there are approximately fifteen hundred, your Honor.
THE COURT: Fifteen hundred people. How many of them are partners in litigation? You don’t even know, there are so many. It’s not a good start, you can tell your exalted partners over there, that they put you here and I’ve got to lecture you. I want to lecture them.
I’ve been a lawyer for 41 years and I’ve been a judge or 16 years and I’m not having this discussion with you. I’m going to set another date for a pre-motion conference and you better be sure that a partner of your law firm shows up here.
MR. BURCHER: Yes, your Honor.
He then directed the parties to return on September 27 for a follow-up conference, snarkily saying that “maybe Kirkland & Ellis can scrounge up a partner who is not busy with working on some project in Texas to come see a lowly United States District Judge in the Eastern District of New York on that day.”
Discussing the case yesterday, my colleague Kathryn Rubino wrote that the judge “probably had every right to be pissed off at Biglaw powerhouse Kirkland & Ellis” and concluded her post as follows: “Lesson to Biglaw: don’t send an associate to do a partner’s job.”
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I respectfully dissent. In my view, Judge Garaufis was out of line. In demanding that a K&E partner cover this conference, he comes across as an insecure judicial diva with a giant chip on his shoulder. A few points, in no particular order (and with thanks to some of my Facebook friends who shared their insights, whom I have quoted below):
1. This was just a routine status conference. Assuming that Burcher was properly briefed — and we never got the chance to find out if he was, because Judge Garaufis refused to engage Burcher on anything of substance — he could easily have handled the scheduling and administrative issues typically handled at such a conference. If a fifth-year associate can argue before the Supreme Court, surely a third-year associate can handle a status conference in district court.
(It’s true, as you can see from the full transcript, that there was a fair amount of discussion of substantive legal issues at the conference. But it struck me as discussion held because Judge Garaufis likes to hear the sound of his own voice, as opposed to discussion of substantive law necessary to resolve the matters you’d expect to be discussed at a status conference.)
UPDATE (1:45 p.m.): A source close to the case adds that the two sides in this case have a good working relationship, had worked out what needed to be worked out, and had no disputed issues to be resolved at the hearing.
2. Judges should encourage appearances by younger lawyers. As one of my friends quipped, “And people wonder why associates can’t get any court experience!” Compare Judge Garaufis to former Magistrate Judge Paul Grewal — now an in-house lawyer at Facebook, actually — who actively encouraged law firms to give associates some court time when he was on the bench.
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UPDATE (3:20 p.m.): Per John Marzulli of the New York Daily News, Facebook brought deputy general counsel Grewal in from California for the follow-up hearing; how perfect is that? Also present, coming up from D.C.: Kirkland partner partner Craig Primis.
3. There was no need to be nasty about it. Even if Judge Garaufis was justified in requiring a partner’s presence, he didn’t need to do it in such a snide and sarcastic manner. He could simply have asked the parties to come in for a conference on a later date (which he eventually did, after all the berating of poor Aulden Burcher-DuPont).
One friend of mine wondered whether Judge Garaufis’s local rules say anything about who must appear at status conference. If they did, I would have expected him to say something about it; upon my quick review of his rules, they do not.
In hindsight, would it have been better for Kirkland to have sent some other partner, even one without knowledge of this case, to “second chair” the associate? Sure — but I don’t think that was necessary. Aulden Burcher-DuPont is a duly admitted member of the Eastern District of New York bar, and assuming no objection from the client, he is fully entitled to represent his client in that court (just as many young lawyers who are solo practitioners or at smaller firms regularly do). As one friend of mine quipped, “I was unaware that either a license to practice law or an admission to a court included a designation of whether that attorney was a partner or an associate.”
I like this suggestion from another friend of mine: “I think it would be a nice touch if at the next hearing the associate appeared for Facebook again, except this time with FB General Counsel at his side, and that GC should make a show of letting the associate do all the talking.” Or this one: “If I was the partner, I’d show up at the next meeting with every single K&E partner that I could beg or bully into coming and make it clear that they were all there to show the firm’s full support for the associate and their capacity to represent the firm’s clients zealously, ethically, and competently.”
What does Kirkland & Ellis think of all this? We reached out to K&E for comment; the firm’s spokesperson referred us to Facebook’s spokesperson, whom we are waiting to hear back from.
UPDATE (1:33 p.m.): Here is a statement from Facebook (about the substance of the lawsuit, as opposed to who represented the company in court last week): “We are committed to providing a service where people feel safe when using Facebook. Our Community Standards make clear that there is no place on Facebook for groups that engage in terrorist activity or for content that expresses support for such activity, and we take swift action to remove this content when it’s reported to us. We sympathize with the victims of these horrible crimes.”
The follow-up status conference takes place today at 2:30 p.m., so we may have another report for you later.
UPDATE (8:30 p.m.): Here’s what happened at this afternoon’s hearing.
UPDATE (9/28/2016, 1:30 p.m.): Neither Kirkland nor Facebook has said a bad word about Judge Garaufis, but not everyone who appears before him shows such restraint. Over at the Robing Room, he has an average rating of 3.8 (out of 10).
What do you think of Judge Garaufis’s smackdown of K&E? Please vote in our poll:
Was Judge Garaufis's reprimand of Kirkland and Ellis appropriate?
Loading ...Cohen v. Facebook [U.S. District Court for the Eastern District of New York]
Earlier: Federal Judge Reams Junior Associate Because Biglaw Firm Refused To Send A Partner To Court
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
