Author: TSA Press

Ninth
Circuit
Judges
Get
Into
It:

It’s
like
a
food
fight,
but
with
words.

It’s
*Slightly*
Easier
—
Or
At
Least
Quicker
—
To
Make
Equity
Partner:

At
Kirkland.

Federal
Judge
Lashes
Out
At
Biglaw
Firm:

Over
discovery
abuses.

Don’t
Count
Your
Party
Buses
Before
They’re
Hatched:

Or
something
like
that.

Bonus
News:
At

boutique

firms
and

Biglaw
alike.

Given
the
ginormous
expansion
and
size
of
Biglaw
firms:
is
it
possible
that
they
have
gotten
too
big?
I
ask
because
several
ginormous
(albeit
nonlawyer)
companies
are
slimming
down
post-COVID.
Whatever
weight
was
gained
in
the
pre-COVID
years
is
now
seen
as
a
liability,
rather
than
an
asset.

So,
GE
is
separating

into
three
units
(Jack
Welch
must
be
turning
over
in
his
grave):
health
care,
energy,
and
aviation.
Johnson
&
Johnson
is
dividing
itself
in
half,
separating
the
consumer
products
unit
from
the
pharmaceutical
and
medical
device
unit.
And
not
to
be
left
behind,

Toshiba
has
announced
plans
to
divide
itself
into
thirds:
energy
and
infrastructure
in
one,
hard
disk
drives
and
power
semiconductor
business
in
another,
and
flash
chip
and
other
assets
in
a
third.

So,
can
Biglaw
sustain
its
bigness?
Should
it?
Associates
who
fill
the
coffers
with
the
billable
hours
are
not
so
sure
that
that’s
where
they
want
to
be
and
how
they
want
to

spend
their
working
lives.
Reasonable
considerations
given
the
demands.
Does
Biglaw
continue
to
grow,
or
will
it
think
to
rethink
its
bigness?
Some
mid-size
firms
are
considering
mergers
due
to
succession
challenges.
The
need
for
viable
succession
planning
is
not
new.

As
we
slog
toward
the
end
of
a
tough
year,
many
peeps
are
asking
questions
about
not
only
what
job
they
might
want
to
have
but
how
they
might
want
to
have
it.
In
the
office?
Remote?
A
hybrid
of
the
two?
What
about
legal
work
energizes
you
and
what
sucks?
I
am
not
the
first
to
tell
you
that
every
single
lawyer
job
sucks
in
some
respects,
and
if
you
think
it
doesn’t,
then
let’s
talk
further.
Drudgery,
to
a
greater
or
lesser
extent,
is
part
of
every
lawyer’s
work.
Discovery
work
was
always
what
I
hated
the
most.
The
endless
responding
to
what
seemed
to
be
endless
requests
for
documents,
admissions,
answers.
Not
just
boring,
but
mind-numbing.
Not
quite
like
what
you
imagined
the
practice
would
be.
Right?
And
did
any
professor
tell
you
that
in
law
school?
(Rhetorical
question.)
The
only
ones
who
came
even
close
to
telling
you
anything
about
the
real
world
of
lawyering
were
the
adjuncts,
those
in-the-trenches
lawyers
who
told
you
the
truth
about
practice.

Here
in
California,
I,
along
with
many
other
lawyers,
would
like
nothing
more
than
to
drive
a
stake
through
the
heart
of
the
current
discovery
statutes
for
good
and
find
a
better
way
to
litigate
and
resolve
cases
rather
than
endless
motion
practice.
Lawyers
prosper
on
the
theory
of
leaving
no
stone
unturned,
while
clients
rail
against
the
expense.

Further
news
on
the
state
bar/Tom
Girardi
front.
The
state
bar
will
consider
revisions
to
how
lawyers
manage
their
trust
accounts
or
mismanage
them,
as
the
case
has
been
with
Girardi
and
others
over
time.
The
proposed
changes
would
require,
among
other
things,
compliance
certification
of
the
trust
accounts
by
CPAs.
The
board
will

consider
rule
changes
after
the
first
of
the
year
and
the
proposed
changes
will
be
open
for
public
comment
until
midyear.

And
the
December
issue
of
our
monthly
glossy
magazine,
not
surprisingly,
titled
Los
Angeles,
has
on
its
cover
Mr.
and
Mrs.
Tom
Girardi.
The
cover
banner
reads:
“Barely
Legal,
Crooked
Investigators,
Swindled
Orphans,
A
Fortune
Squandered
on
Bling,
Inside
the
Surreal
Scandal
That
Toppled
L.A.’s
Top
Lawyer
and
His
Ambitious
Reality-TV-Star
Wife.” 
(Emphasis
on
the
cover.)
“Barely
Legal.”
Really?

Jordan
Rothman
was
spot
on

in
his
recent
post
about
micromanaging.

Micromanaging
is
always
a
curse
and
never
a
blessing.
I
was
GC
of
a
nonprofit
many
years
ago
and
the
CEO’s
micromanaging
drove
me
out
and
into
my
own
firm.
Every
single
decision
had
to
be
made
by
him
so
all
the
competent
people
around
him
were
merely
fact
gatherers
and
order
takers.
Not
one
single
decision
could
be
made
by
those
on
his
team.
Mentoring
is
good;
micromanaging
is
bad.
How
are
peeps
supposed
to
learn
if
they
are
not
allowed
to
make
mistakes?
Why
hire
anyone?
Just
do
it
all
yourself.

Micromanaging
is
borne
out
of
fear,
of
insecurity,
of
not
trusting
the
judgments
of
your
staff
and
so,
to
CYA,
the
manager,
the
boss,
whoever
is
micromanaging
does
so
out
of
a
lack
of
trust.
There’s
nothing
worse
than
not
being
able
to
do
the
job
you
were
hired
to
do,
to
not
be
able
to
use
your
judgment
to
make
decisions,
but
it
is
your
job
to
keep
the
boss
informed
and
to
escalate
issues
as
needed.
No
one
likes
surprises.
If
a
boss
is
insecure
and
a
micromanager,
then
look
out.
That
boss
may
well
be
driving
the
bus
that
you
find
yourself
under.
I
have
the
tire
tracks
to
prove
it.

Having
graduated
from
a
nonranked
law
school
that
is
now
gone,
I
think
the
recent
kerfuffle
at
Yale
Law
School
requires
a
matrix
to
figure
out
who’s
who
and
why
anyone
should
care.
Joe
Patrice
opines
that
the
school
is

a
microcosm
of
a
failing
democracy.
Read
Timothy
Snyder’s
book,
“On
Tyranny,
Twenty
Lessons
from
the
Twentieth
Century,”
in
which
he
lays
out
20
signs
of
a
country
headed
in
the
wrong
direction.
(There’s
also
a
graphic
book
version.)

Among
those
signs
is
the
failure
to
remember
our
professional
ethics.
If
we 
“confuse
our
specific
ethics
with
the
emotions
of
the
moment,”
then
we
can
find
ourselves
“saying
and
doing
things
that
we
previously
would
have
thought
unimaginable.”
Lawyers
in
Hitler’s
inner
circle
thought
that
the
law
was
there
to
serve
his
aims.
We
all
know
how
that
turned
out.

---

Jill
Switzer
has
been
an
active
member
of
the
State
Bar
of
California
for
over
40
years.
She
remembers
practicing
law
in
a
kinder,
gentler
time.
She’s
had
a
diverse
legal
career,
including
stints
as
a
deputy
district
attorney,
a
solo
practice,
and
several
senior
in-house
gigs.
She
now
mediates
full-time,
which
gives
her
the
opportunity
to
see
dinosaurs,
millennials,
and
those
in-between
interact
—
it’s
not
always
civil.
You
can
reach
her
by
email
at



oldladylawyer@gmail.com.

Ed.
note:
This
is
the
latest
installment
in
a
series
of
posts
on
motherhood
in
the
legal
profession,
in
partnership
with
our
friends
at MothersEsquire.
Welcome
Joseline
Jean-Louis
Hardrick
back
to
our
pages.
Click


here

if
you’d
like
to
donate
to
MothersEsquire.

The
recent
statistics
from
the
AccessLex
Institute
show
a

clear
difference
in
performance
on
the
bar
exam
based
on
race
and
socioeconomic
status.
The
report,
which
took
three
years
to
collect,
analyze,
summarize,
and
interpret,
discusses
the
experiences
and
outcomes
of
first-
and
second-time
New
York
State
Bar
candidates.
AccessLex
Institute
worked
with
the
New
York
State
Board
of
Law
Examiners
to
finalize
the
publication
and
provide
recommendations
to
the
legal
education
community.
Specifically,
they
guide
legal
educators
to
build
and
improve
efforts
to
prepare
law
school
graduates
for
first-time
bar
exam
passage
in
a
way
that
is
both
equitable
and
effective.

The
report
is
disappointing
but
not
surprising.
For
decades,
first-time
bar
passage
rates
(and
overall
passage
rates)
have
had

stark
differences
identifiable
by
race,
as
reported
by
Bloomberg
Law.
The
authors
argue
that
the
bar
exams
are
not
tests
of
skill
or
competence
but
resources.
Resources
are
in
high
demand
among
Black
and
Brown
students;
many
first-generation
lawyers
may
lack
financial
support
from
their
families
and
enter
law
school
without
knowing
how
to
prepare
for
the
bar
exam
while
in
law
school.
They
are
also
less
likely
to
study
full
time
without
working,
pay
for
commercial
bar
prep
courses,
and
have
lower
household
incomes.

We
don’t
need
new
reports
telling
us
what
we
know
(although
I
understand
that
studies
are
useful
to
provide
empirical,
as
opposed
to
anecdotal,
data).
We
need
new
ways
to
judge
the
fitness
of
an
individual
to
practice
law
and
represent
individuals.

Of
course,
we
want
lawyers
who
are
honest,
competent,
and
mentally
well.
We
trust
these
people
with
lives
and
a
significant
amount
of
money.

But
it
is
also
well
known
in
the
legal
field
that
individual
clients
(and
to
a
large
degree
business
clients)
hire
from
within
their
communities.
It
is
also
industry-standard
to
limit
marketing
avenues
to
a
very
small
amount
of
media,
and
the
states’
bar
association
strictly
monitors
the
language
used.
That
leaves
Black,
Hispanic/Latinx,
and
immigrant
communities
with
few
resources
to
access
the
courts
and
legal
advice
essential
to
their
well-being
and
financial
health.

Schools
have
addressed
this
issue
in
part
by
having
part-time
programs,
scholarships,
and
pipeline
programs.
But
no
one
can
“practice”
law,

i.e.,
represent
a
client
in
court
and
other
settings,
without
a
license.
And
almost
all
states
require
bar
passage
to
obtain
one.
How
do
we
get
them
through
this
barrier,
given
the
enormous
costs
incurred
after
the
enormous
costs
of
law
school?

I
know
many
students
had
to
purchase
new
laptops
to
use
the
specific
program
that
the
Florida
Board
of
Bar
Examiners
required
to
take
the
October
2020
bar
exam.
Unfortunately,
the
program
had
security
glitches,
and
students
reported
identity
theft
used
to
hack
their
bank
accounts
(as
one
student
reported
to
me).
In
contrast,
others
reported
similar
stories
on
social
media.
The
student
I
know
already
had
to
put
the
laptop
on
her
credit
card
after
paying
thousands
more
for
the
bar
prep
course
and
undoubtedly
had
thousands
of
outstanding
student
loans.

These
challenges
are
avoidable
if
the
legal
profession
focuses
on
access
instead
of
exclusivity.
Lawyers
are
trained
problem-solvers
—
we
need
to
recognize
the
inequities
within
our
systems
and
fix
them
accordingly.

The
bar
exam
is
a
challenge
of
resources
and
memorization,
not
competence
to
practice.
Many
students
struggle
with
test-taking
skills
but
ultimately
make
excellent
lawyers,
advocates,
judges,
politicians,
and
the
list
goes
on.

What
to
do
instead?

Allow
waiver
into
jurisdictions
once
an
attorney
has
shown
competence
in
their
jurisdiction.

Allow
students
to
take
the
bar
exam
in
phases,

i.e.,
hold
a
First-Year
Bar
Exam,
which
immediately
follows
a
students’
completion
of
their
first-year
courses.
The
information
is
fresh
in
their
minds,
and
it
is
one
less
burden
for
the
remainder
of
law
school
so
they
can
focus
on
skills
and
experience.
With
the
current
setup,
students
must
try
to
remember
topics
they
learned
three
(or
more)
years
prior
in
two
months
for
a
two-day
exam.
There
is
already
a
model
for
this
structure.
The
Multistate
Professional
Responsibility
Examination
(MPRE)
is
held
throughout
the
year
and
can
be
taken
at
various
times
in
a
law
student’s
academic
career.
And
California
has
a
First-Year
Law
Student
Exam.

Include
a
third-year
externship
or
apprenticeship
in
place
of
the
bar
exam.
This
practice
used
to
be
the
norm,
but
it
was
also
very
exclusive.
California
is
once
again
at
the
forefront
of
this
idea.
If
we
are
truly
concerned
with
legal
education
creating
competent
lawyers,
then
why
not
create
the
infrastructure
for
externships
and
apprenticeships
—
to
learn
the
law.
With
the
support
of
the
local
Board
of
Bar
Examiners,
local
voluntary
bar
associations,
government
employers,
and
academic
institutions
—
students
can
equitably
get
access
to
this
experience.

Those
mentioned
above
are
only
a
few
of
the
ideas
circulating.
But
the
largest
barrier
by
far
to
innovation
in
this
area
is
the
resistance
from
lawyers.
Those
lawyers
already
admitted
to
the
bar
have
a
tremendous
fear
(or
anxiety)
of
increased
competition
for
legal
services
and
a
sense
of
unfairness.
Some
believe
that
since
they
had
to
go
through
the
rigor
of
a
bar
exam,
others
who
come
after
should
go
through
it
as
well.
Although
understandable,
this
sentiment
is
not
based
in
equity
and
fairness.

Further,
it
ignores
the
enormous
need
for
legal
representation
in
lower
and
middle
socioeconomic
classes.
That
need
is
currently
filled
by
nonlawyer
legal
services
like
Legal
Zoom,
Avvo,
artificial
intelligence,
and
lawyer
referral
services.
Services
lawyers
also
have
been
attacked
as
the
Unauthorized
Practice
of
Law
(UPL).

It’s
time
for
lawyers
to
take
swift
and
decisive
action
about
how
we
as
an
industry
will
fill
the
gap
of
legal
services,
ensure
entry
into
the
profession
by
those
who
are
truly
competent,
passionate,
and
trustworthy
(not
just
good
test-takers)
and
embrace
the
change
that
lies
ahead.

---

Professor
Joseline
Jean-Louis
Hardrick
is
a
visiting
Assistant
Professor
at
WMU-Cooley
Law
School
in
Florida.
She
teaches
Criminal
Law
and
Constitutional
Law
and
assists
graduates
with
bar
preparation.
She
is
the
founder
and
director
of
Diversity
Access
Pipeline,
Inc.
This
nonprofit
organization
runs
the
Journey
to
Esquire®
Scholarship
&
Leadership
Program,
Blog,
and
Podcast
to
promote
diversity
and
create
access
for
law
students.

Woohoo!
Biglaw
bonus
season
is
really
picking
up!

The
latest
firm
to
announce
their
year-end
bonus
scale
is
Hogan
Lovells,
a
firm
that
took
in
$2,308,401,000
in
gross
revenue
last
year,
making
it
9th
on
the
Am
Law
100.
As
is
becoming
increasingly
common,
the
firm
is
matching
the
enhanced
bonus
structure
revealed
by
Cravath
last
week.
The
bonuses
will
range
from
$20,000
to
$115,000,
depending
on
seniority.

The
year-end
bonuses
—
which,
again
are
on
top
of

previously
announced
special
bonuses
—
will
be
given
out
on
the
following
schedule:

2014 (and senior)	$115,000
2015	$105,000
2016	$90,000
2017	$75,000
2018	$57,500
2019	$30,000
2020	$20,000

According
to
the
memo
circulated
—
the
full
memo
is

available
on
the
next
page
—
bonuses
will
be
paid
to
“all
eligible
associates
who
meet
our
quality,
firm
citizenship,
and
minimum
hours
expectations.”
Plus,
where
there
are “outstanding
contributions
significantly
in
excess
of
expectations”
bonuses
may
be
“adjusted
upward.”

That’s
certainly
one
way
to
show
the
love
to
hardworking
associates.

Remember
everyone,
we
depend
on
your
tips
to
stay
on
top
of
important
bonus
updates,
so
when
your
firm
matches,
please
text
us
(646-820-8477)
or email
us (subject
line:
“[Firm
Name]
Matches”).
Please
include
the
memo
if
available.
You
can
take
a
photo
of
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memo
and
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it
via
text
or
email
if
you
don’t
want
to
forward
the
original
PDF
or
Word
file.

And
if
you’d
like
to
sign
up
for
ATL’s
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Alerts
(which
is
the
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list
we
also
use
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please
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If
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publish.
Thanks
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all
of
your
help!

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
(@Kathryn1).

---

---

As
the
year
comes
to
an
end,
it
is
a
natural
time
for
some
pause
and
reflection.
Beyond
reviewing
and
reflecting
on
everything
you
may
have
accomplished
and
updating
your
“done
list”
in
anticipation
of
pending
performance
reviews
and
proving
your
value,
it
may
also
be
a
good
time
to
consider
the
three
S’s:
Stop,
Start,
and
Smart,
whether
you
do
this
as
an
individual
or
with
your
legal
team.

Stop

While
it
may
have
been
a
former
badge
of
honor
in
private
practice
to
do
as
much
work
as
possible
due
to
the
billable
hour
system,
when
you’re
in-house,
it
is
more
important
to
work
on
the
most
impactful
or
pressing
work
and
to
work
as
efficiently
as
possible.
Not
all
work
is
created
equal,
and
busy
work
for
the
sake
of
being
busy
is
wasteful.

With
that
perspective
in
mind,
as
you
reflect
upon
the
work
you’ve
done
all
year
—
what
should
you
stop
doing?
Is
there
low
value
work
that
should
stop
or
is
there
work
that
may
need
to
be
done
but
is
better
delegated
to
someone
else
or
outsourced
(presuming
you
have
that
ability)?
For
example,
could
you
create
a
checklist
or
template
so
that
your
clients
can
“self-serve”
and
only
seek
legal
assistance
if
complex?

Start

On
the
opposite
end
of
that
spectrum,
consider
what
should
you
start
doing.
After
reflecting
on
the
year,
take
some
time
to
also
look
ahead
—
are
there
projects
or
business
priorities
that
you
should
be
spending
your
time
on?
As
an
astute
in-house
counsel
who
is
aware
of
pending
legislation
and
who
anticipates
issues
and
trends
from
staying
on
top
of
legal
publications,
attending
conferences,
leveraging
your
relationships
with
outside
counsel
and
benchmarking
with
your
network,
what
should
be
at
the
top
of
your
list
for
2022
and
beyond?
For
this
question,
I
find
that
it’s
helpful
to
address
in
two
separate
segments.
First,
have
a
free
brainstorming
session
and
think
of
as
many
things
as
you
can.
You
want
to
start
with
a
comprehensive
list.
Second,
have
a
prioritizing
session.
Consider
your
resources
and
company’s
objectives
and
prioritize
accordingly.

Smart

My
favorite
“S”
is
smart.
For
the
work
that
you’re
currently
doing
that
needs
to
continue
—
consider
whether
it
can
be
done
smarter,
more
efficiently,
or
could
the
process
or
work
product
be
improved
in
some
way.
To
do
this
well,
you
have
to
deconstruct
the
why
—
the
reason
behind
the
work
in
the
first
place,
and
then
consider
whether
there
are
other
ways
to
achieve
that
why.
This
is
my
favorite
“S”
because
it’s
a
space
where
in-house
counsel
can
really
stand
out
by
using
their
creativity
and
natural
problem-solving
skills
to
better
serve
their
legal
department
and
business
clients.

And
if
you
geek
out
over
this
reflection
exercise
as
much
as
I
do,
you
may
even
consider
how
to
apply
this
outside
of
work
and
in
your
personal
life.

---

Meyling
“Mey”
Ly
Ortiz
is
in-house
at
Toyota
Motor
North
America.
Her
passions
include
mentoring,
championing
belonging,
and
a
personal
blog:
TheMeybe.com.
At
home,
you
can
find
her
doing
her
best
to
be
a
“fun”
mom
to
a
toddler
and
preschooler
and
chasing
her
best
self
on
her
Peloton.
You
can
follow
her
on
LinkedIn
(https://www.linkedin.com/in/meybe/).
And
you
knew
this
was
coming:
her
opinions
are
hers
alone.

Last
night,
the
House
Select
Committee
to
Investigate
the
January
6
attack
on
the
US
Capitol
voted
to
refer
former
Justice
Department
lawyer
Jeffrey
B.
Clark
for
contempt
of
Congress
after
he
refused
to
comply
with
a
subpoena
for
documents
and
testimony
about
his
role
in
a
plot
to
use
the
DOJ
to
overturn
the
election.
Having
royally
pissed
off
the
Committee
with
his
antics,
he’s
now
threatening
to
plead
the
Fifth
if
forced
to
testify.
Long
story
short:
he

took
a
poor
hand
and
played
it

very,
very
badly.

Long
story
long:
HO.
LEE.
SHIT.

It
all
started
back
on
October
13,
when
the
Committee

subpoenaed
Clark,
as
well
as
former
acting
Attorney
General
Jeffrey
Rosen
and
acting
Deputy
AG
Richard
Donoghue
to
testify.
The
DOJ
said
it
wasn’t
invoking
privilege,
and
Donald
Trump’s
lawyers
sent
a

blustery
letter
saying
that

he
wasn’t
going
to
sue
to
exert
executive
privilege
as
to
their
testimony
“so
long
as
the
Committees
do
not
seek
privileged
information
from
any
other
Trump
administration
officials
or
advisers.”
So
Rosen,
Donoghue,
and
the
rest
of
the
former
Justice
Department
officials
hightailed
it
on
in
to
the
Committees
to
tell
House
and
Senate
investigators
all
about
that

hilarious
time
Jeff
Clark
tried
to
get
himself
made
AG
so
he
could
launch
a
bunch
of
fake
investigations
into
non-existent
election
fraud
and
allow
swing
state
legislatures
to
recall
their
electors
and
recast
them
for
Trump.

But
not
Jeffrey
Clark. The
onetime
Kirkland
&
Ellis
lawyer
has
employed
a
series
of
increasingly
desperate
stratagems
to
avoid
telling
the
Committee
what
went
down.

Clark’s
lawyer
Harry
MacDougald
of
Caldwell,
Carson,
Elliott
&
DeLoach
LLP

wrote
the
Committee
on
November
5
to
say
that
his
client
was
interpreting
the
subsequent
subpoenas
of
former
White
House
Chief
of
Staff
Mark
Meadows
and
putrefying
podcaster
Stephen
Bannon
as
automatically
invoking
the
snapback
executive
privilege
provisions
in
Trump’s
prior
letter.
He
also
cited
Trump’s
lawsuit
over
records
sought
by
the
Committee
from
the
National
Archives
as
proof
that
the
former
president
wants
his
client
to
keep
quiet,
and
thus
Clark
will
be
producing
no
documents
and
answering
none
of
the
Committees
questions
on
any
topic.

Unsurprisingly,
the
Committee
was
unmoved
by
this
logic
and
continued
to
insist
that
Clark
show
up
as
summoned.
And
so,
on
November
5,
Clark
and
MacDougald
appeared
with
a

12-page
letter
explaining
that
they
could
not
possibly
comply
with
any
queries
due
to
“the
general
category
of
executive
privilege,
the
specific
categories
of
the
presidential
communications,
law
enforcement,
and
deliberative
process
privileges,
as
well
as
the
attorney-client
privilege
and
the
work
product
doctrine.”

The
pair
appeared
to
think
that
the
Committee
would
simply
accept
the
letter
and
let
them
leave.
But
they
were
mistaken.

Bigly.

What
followed
was
an
uncanny
colloquy
where
MacDougald
admitted
that,
while
Trump
had
instructed
Meadows
and
Bannon
not
to
talk
to
the
Committee,
he
had
not
reached
out
to
Clark
to
tell
him
to
zip
it.
Nor
had
the
former
president
followed
through
on
his
threat
to
sue
to
assert
executive
privilege
over
Clark’s
testimony.
Nonetheless,
Clark
was
refusing
to
answer
any
questions,
even
those
which
could
not
possibly
be
construed
as
privileged,
such
as
those
touching
on
his
conversations
with
reporters.

Nor
would
MacDougald
explain
what
privilege
applied
to
any
particular
issue,
characterizing
the
very
inquiry
as
“badgering
the
witness.”
Which
is
literally
not
how
any
of
this
goes.

Not
to
put
too
fine
a
point
on
it,
but
the

transcript
is
batshit.
Here’s
a
fun
excerpt:

Rep.
Raskin:
I
just
wonder
if
Mr.
Clark’s
counsel
has
any
authority
for
the
proposition
that
he
can
categorically
refuse
to
answer
any
questions
as
opposed
to
invoke
the
privilege
he
says
he
has
with
respect
to
the
specific
questions.

MacDougald:
Our
legal
authority
is
set
forth
in
the
letter,
Congressman.

Rep.
Raskin:
Well,
the
letter
seems
to
be
the
magic
solution
for
everything,
but
could
you
name
the
Supreme
Court
decision
that
you’re
refusing
to?

MacDougald:
Congressman
Raskin,
as
I
previously
stated,
we’re
not
going
to
engage
in
legal
debate
or
argument
over
this.
We’ve
set
forth
a
written
objection.
The
committee
can
respond
to
it
in
writing,
and
we’ll
deal
with
that
at
that
time.
But
we’re
not
going
to
do
Q&A
on
legal
points
in
this
deposition.

Shortly
after
this
exchange,
MacDougald
and
Clark
stomped
out,
and
MacDougald
got
on
a
plane.
So
he
and
his
client
weren’t
there
when
the
Committee
reconvened
at
4pm
to
discuss
all
the
things
they
wanted
to
ask
Clark
and
to
decide
whether
he
had
made
a
valid
invocation
of
privilege.

Spoiler
Alert:
LOL.

The
Committee
promptly
scheduled
a
December
1
vote
on
a
contempt
referral
for
Clark.
Perhaps
realizing
that

they
done
fucked
up,
Clark
and
MacDougald
then
fired
off
a
series
of
bizarre
missives
questioning
the
Committee’s
legal
authority.

In
a

November
29
letter,
MacDougald
asserted
that
the
Committee
has
no
subpoena
power
because
its
authorizing
resolution
requires
it
to
consult
with
the
ranking
Republican
member,
who,
uhhh,

does
not
exist.
The
theory
seems
to
be
that,
because
Republicans
refused
to
participate
after
Speaker
Pelosi
rejected
Reps.
Jim
Banks
and
Jim
Jordan,
there
are
no
duly
appointed
Republicans
on
the
Committee.

Astute
observers
will
note
that
Republican
Liz
Cheney
is
Vice
Chair,
and
Republican
Adam
Kinzinger
also
sits
on
the
Committee.
But
MacDougald
insists
that
they
don’t
count
because
they
weren’t
appointed
by
Minority
Leader
Kevin
McCarthy.
And
also,
is
Liz
Cheney
even
a
Republican
anyway
since
the
Wyoming
GOP
hates
her
now?
(Oh,
yes,
he
did.)

Later
that
same
day,
MacDougald
was
back
with

yet
another
letter,
in
which
he
made
a
variety
of
procedural
complaints
—

how
can
it
be
an
official
transcript
if
his
client
refused
to
sign
it,
answer
that
one,
tough
guy!
—
and
generously
offered
to
allow
his
client
to
testify
if
the
Committee
would
simply
limit
its
query
to
that
one
conversation
Clark
had
with
the
Bloomberg
reporter.

In
fact,
the
Committee
would
not
so
limit
itself.
And
according
to
minutes
of
the
meeting
in
which
it
voted
to

refer
him
for
contempt,
Clark
is
now
threatening
to
plead
the
Fifth.

Chair
Bennie
Thompson
said:

Mr.
Clark
previously
had
the
opportunity
to
make
Fifth
Amendment
assertions
on
the
record
and
declined.
But
a
Fifth
Amendment
privilege
assertion
is
very
significant.
So
the
Select
Committee
has
agreed
to
provide
him
another
chance
to
come
in
and
assert
that
privilege
on
a
question-by-question
basis,
which
he’s
required
to
do
by
law
if
he’s
making
such
a
claim.
He
agreed
to
come
in
and
we
will
reconvene
the
deposition
Saturday.

But
we
cannot
be
delayed.
The
Select
Committee’s
work
is
too
important.
We
must
be
ready
to
act
quickly
if
Mr.
Clark
remains
in
defiance
of
the
Select
Committee’s
subpoena.

In
case
it
wasn’t
clear
that
they’re
going
to
make
him
eat
every
syllable
of
that
privilege
and
Fifth
Amendment
invocation,
Rep.
Raskin
spelled
it
out
in
comments
to

CNN.

“You
can’t
plead
the
Fifth
to
an
entire
prosecution.
You
can’t
plead
the
Fifth
to
every
question
you
might
be
asked.
So
it
applies
only
when
you
have
a
specific
and
reasonable
apprehension
that
your
answer
could
be
used
against
you
in
a
criminal
prosecution,”
the
Maryland
congressman
said,
adding
later,
“He
didn’t
state
which
criminal
statutes
he
was
referring
to
—
whether
it
was
election
fraud
or
criminal
conspiracy
or
whatever
—
but
presumably
he
would
have
an
opportunity
to
explain
what
are
the
underlying
criminal
statutes
he’s
afraid
of
being
prosecuted
under.”

Fuck
around,
find
out.

Select
Committee
Documents

---

Elizabeth
Dye lives
in
Baltimore
where
she
writes
about
law
and
politics.

This
whole
practice
area
is
a
reflection
of
where
the
nation
is
as
it
tries
to
grapple
with
issues
that
for
too
long
we
have,
if
not
willfully
ignored,
been
reckless
in
not
confronting.
And
so
the
fact
that
we
are
engaged
in
this
kind
of
practice,
I
think
it’s
actually
a
pretty
good
sign.

This
isn’t
what
you’d
expect
necessarily
from
a
big,
established,
unbelievably
credentialed
law
firm.
We’re
doing
things
here
that
I
think
are
societally
beneficial.
And
all
of
this
work
really
is
consistent
with
what
I
think
lawyers
at
their
best,
law
firms
at
their
best,
can
do.

—
Former
Attorney
General

Eric
Holder,
who
is
currently
a
partner
at
Covington
&
Burling,
commenting
on
his

emerging
practice
of
workplace
culture
investigations
at
some
of
the
largest
companies
in
the
United
States.

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

Twitter
or
connect
with
her
on

LinkedIn.

Silver-circle
firm
looking
for

senior
US
associate
for
HK
office
(5+
PQE).
New
Cravath
rate
on
offer.
Firm
clients
are
top-tier
bulge
bracket
banks.
Well-known
partner
and
strong
IPO
deal
flow.
Great
platform
for
both
ECM
and
DCM.

Candidate
needs
to
have
1)
US
qualification
and
2)
fluent
English
and
Mandarin
language
skills.
Ideal
candidate
would
have
good
academic
credentials
and
ECM
and/or
DCM
experience
from
peer
firm.

Interested
parties
please
contact:

asia@kinneyrecruiting.com.

It
was
just
the
other
day
that
Above
the
Law
lamented
the
relative
slowness
of
Biglaw
bonus
announcements.
But
bitch,
and
you
shall
receive.

Top
20
Biglaw
firm
—
by
revenue
—
Mayer
Brown
has
announced
their
year-end
largesse.
Unsurprisingly,
the
firm
will
match
the
new
bonus
scale
announced
last
week
by
Cravath.
That’s
a
nice
(~15
percent)
increase
for
most
associates.

Here’s
the
new
scale
you’ve
probably
already
memorized:

The
full
memo
is
available
on
the
next
page.

Congratulations
to
associates
on
the
generous
bonuses!

Remember
everyone,
we
depend
on
your
tips
to
stay
on
top
of
important
bonus
updates,
so
when
your
firm
matches,
please
text
us
(646-820-8477)
or email
us (subject
line:
“[Firm
Name]
Matches”).
Please
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Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
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The
Jabot
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Thinking
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