Author: TSA Press

The lack of civility between lawyers is a problem in the profession. But due to the adversarial nature of the job, it seems as though the most we can do is gripe about it. But a recent court case cited civility as a reason for reducing $180,000 in attorney’s fees.

Earlier this month, the California Court of Appeals decided Karton v. Ari Design, Inc. There, the plaintiff, an attorney who partially represented himself in the case, hired the defendant to perform construction work on the plaintiff’s home. But at some point, the plaintiff fired the defendant and sued him for the entire amount paid plus attorney’s fees. It is worth noting that in California, an unlicensed contractor can be forced to return all money received from a client, even if quality work was already performed.

The trial court ruled that the plaintiff was entitled to all fees paid, and a statutory penalty of $10,000 with interest. So it is safe to say that the plaintiff will receive around $130,000, assuming the defendant has the money.

The plaintiff was entitled to attorney’s fees and asked for $270,000, including fees for work done himself. The calculation was based on 600 hours of work at $450 per hour. But the trial court awarded $90,000 or 200 hours at the hourly rate.

For the most part, the court’s reasoning for reducing the fee was straightforward. First, the court considered the complexity of the case. The issue was simple: Did the defendant have a valid contractor’s license? Such a determination would not be difficult or time consuming since one can look up a contractor at the state licensing board website.

Also, the amount in dispute was $23,000 and considering that the plaintiff was getting a windfall (namely free contracting work) due to state law, an additional $270,000 was not justified.

The court also found that the attorney over-litigated the case, possibly because the attorney was representing himself and had a personal connection to the case. And the court found that the size of the attorney fee is not justified based on the judgment. A rational person would not spend $270,000 to recover $110,000.

Finally, the court considered the role of civility — focusing on the plaintiff’s conduct — in determining the attorney’s fee. It begins by trying to associate civility with skill.

Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

I would agree that attorneys using respectful, persuasive words and arguments to present their cases should be better compensated than those who run their mouth off and “call it like it is.”

But while excellent lawyers should be civil, that is the bare minimum. They tend to be those who make their clients happy. That does not mean winning all the time or winning by any means necessary. Sometimes it’s about damage control and being strong advocates for their clients.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

The problem is that since the American legal profession has an adversarial dispute resolution system, it is sometimes not possible to have a quick-fix solution where everyone will be happy, particularly where one side will lose big. What might be socially advantageous from a judge’s perspective is not always the case from the lawyer’s perspective. The lawyer has to provide results for his client and being civil will only go so far.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities

By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.

Indeed, being a jerk to opposing counsel can result in one or both sides exploiting the judicial rules to make each other miserable and unnecessarily prolong a case. But if this is going to be a basis for reducing attorney’s fees, how will this be calculated? Will the court look at fees accrued for specific events during litigation where there was incivility? Or will the court also exclude fees generated from work that was caused by the original act of incivility?

The court opinion did not calculate the reduction of attorney’s fees solely attributable to the attorney’s uncivil behavior. Instead, the court stated that based on all of the factors mentioned above, it was not an abuse of discretion for the judge to reduce the attorney’s fee award to $90,000. It did not specify how the attorney’s uncivil behavior prolonged the case other than a few instances where he called opposing counsel a liar or made a comment about improper tactics that typically comes from defense counsel. So it is likely that the attorney’s fees were reduced largely based on the simplicity of the case, overlitigation and the resulting award.

It is arguable that this might be reinventing the wheel. Courts already have inherent powers to sanction attorneys who act uncivilly during litigation. Sanctions or threats of sanctions could have put a stop to this at the get-go. Also, reducing attorney’s fees after all is said and done will not change the fact that time was already spent, which is something the court in this case was concerned about.

Finally, if civility will play a bigger role in litigation, there should be some definitions on what constitutes uncivil behavior. As I stated earlier, it is difficult to define what it means to behave civilly. And in recent years, what is considered offensive has grown to levels beyond comprehension and seems to be mutating frequently. I would hate to see the ironic situation where an attorney accuses the opposing counsel of uncivil behavior and dealing with that issue prolongs litigation instead of moving the case forward.

One court has now used the lack of civility to justify reducing attorney’s fee awards. Indeed, few would disagree that lawyers should be civil to each other as a matter of professional courtesy. But we shouldn’t be blind to the fact that we are sometimes hired to be a judicial bodyguard. Most clients and even some lawyers expect this. At least once per week in one of my lawyer groups, I see a referral specifically requesting an “aggressive” attorney. While this could force the jerks in the profession to change their litigation strategy, it might seem superfluous considering the other tools judges can use to control attorney’s behavior. Time will tell whether other courts will do the same, but if they do, there should be some guidance on civility that attorneys can rely on. We as a profession need clear rules, not platitudes on what seems like the right thing to do.

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

“Just tweet through it! And when you’re finished tweeting, go on national television and tell Tucker Carlson everything.”

Said no defense lawyer ever.

Florida congressman Matt Gaetz, 38, has been on quite a tear since the New York Times reported yesterday that he is “being investigated by the Justice Department over whether he had a sexual relationship with a 17-year-old and paid for her to travel with him.”

In brief, it appears that sometime last year — i.e., when Bill Barr was still king of the DOJ — Gaetz was drawn into an investigation of his friend Joel Greenberg, a former Seminole County Tax Collector. In an epic scandal of truly Floridian proportions, Greenberg has been charged with stalking a political opponent, producing fake IDs, and paying a minor for sex. An independent audit found that he misused $1.5 million of taxpayer money, including $90,000 to set up a server for his cryptocurrency venture. Who among us, right? 

Here are Gaetz, Greenberg, and Roger Stone in happier days.

Rep. Gaetz, a William & Mary Law grad who is apparently unaware of his right to remain silent, has been screaming bloody murder since the story dropped last night.

“I only know that it has to do with women,” Gaetz told the Times. “I have a suspicion that someone is trying to recategorize my generosity to ex-girlfriends as something more untoward.”

Then he hopped on the phone with Axios, for more cringey awfulness about what a generous lover he is.

“I have definitely, in my single days, provided for women I’ve dated,” he gushed. “You know, I’ve paid for flights, for hotel rooms. I’ve been, you know, generous as a partner. I think someone is trying to make that look criminal when it is not.”

But that was just the warm up.

As best we can piece together this word vomit salad, it appears that Gaetz is accusing David McGee, who left the Justice Department in 2005 and is currently a litigator at the Florida firm Beggs & Lane, of colluding with current DOJ employees to cook up the investigation as part of an extortion plot. Gaetz says that McGee demanded $25 million to make the federal investigation go away and/or to secure a pardon from President Biden. So his father Don Gaetz contacted the FBI, who wired him up to record McGee in the act.

“The FBI and the Department of Justice must release the tapes that are in their possession, that were done at their direction,” Gaetz told Fox’s Tucker Carlson last night. (Because of course he did!) “Those tapes will show that I am innocent and that the whole concept of sex charges against me was really just a way to try to bleed my family out of money and probably smear my name because I am a well-known, outspoken conservative, and I guess that’s out of style in a lot of parts of the country right now.”

In his telling, McGee’s conspirators at the Justice Department leaked the story to the Times last night in a dastardly plot to stop Papa Gaetz from getting more smoking gun wiretap evidence.

“I don’t think it’s a coincidence that tonight, somehow the New York Times is leaking this information, smearing me and ruining the investigation that would likely result in one of the former colleagues of the current DOJ being brought to justice for trying to extort me and my family,” he said.

McGee appeared gobsmacked to be drawn into the story, describing the allegations as “a blatant attempt to distract from the fact that Matt Gaetz is apparently about to be indicted for sex trafficking underage girls” in a late-night interview with the Daily Beast.

But Gaetz could not stop talking.

“I’m not the only person on screen right now who has been falsely accused of a terrible sex act,” he told a visibly horrified Carlson, before going on to remind the host of the fun double date they shared, just Tucker, the Missus, Rep. Gaetz, and his extremely-young-but-not-jailbait girlfriend.

I can say that actually you and I went to dinner, about two years ago, your wife was there, I brought a friend of mine, you’ll remember her, and she was actually threatened by the FBI, told that if she wouldn’t cop to the fact that somehow I was involved in some pay-for-play scheme, that she could face trouble. And so I do believe that there are people at the Department of Justice who are trying to smear me!

Looking like he smelled a fart, Carlson responded, “I don’t remember the woman you’re speaking of or the context at all, honestly.”

Which may or may not earn him a visit from a friendly FBI agent. Who knows! The night is young, and so are Matt Gaetz’s dates.

TL, DR?

Matt Gaetz should shut the hell up already. But he won’t.

Matt Gaetz Is Said to Face Justice Dept. Inquiry Over Sex With an Underage Girl [NYT]
Ex-GOP official Joel Greenberg flaunted ties to Matt Gaetz. Then he was charged with child sex trafficking. [WaPo]
Matt Gaetz Interview Transcript on Sex Trafficking Allegations [Rev]

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

When most people think of law firm associates, they think of the traditional, partnership-track junior attorneys to which all of us are accustomed. These attorneys are incorporated into the fabric of a firm, and if they perform well enough, they may someday be promoted to counsel or even partner. However, many firms have staff attorney positions or nonpartnership track associates who are not treated the same as traditional associates. Law firms often hire such attorneys in order to save money, have staff perform work on a temporary basis, or for other reasons. Nevertheless, staff attorneys are often treated like second-class lawyers at many firms, and shops should try not to create different tiers of lawyers at their firms.

One of the biggest ways that staff attorneys are treated worse than traditional associates is in their rate of pay. Staff attorneys typically make far less money than traditional associates, and in certain circumstances, they can make half or less the amount that traditional associates earn at a firm. Employers sometimes argue that staff attorneys are not expected to work as hard as traditional associates or devote time to business development and other efforts, and this reasoning helps firms justify why they pay staff attorneys less money. Of course, some staff attorneys who work through temp agencies and similar arrangements can ensure that they do not work a substantial number of hours. In such circumstances, it might make sense to pay such lawyers less.

However, many staff attorneys are paid a salary, and their hours are not tightly regulated. As a result, it is not uncommon to see staff attorneys work just as hard or even harder than traditional associates. This demonstrates that firms simply create staff attorney positions to save money and not for the allegedly benign purpose of creating an opportunity for attorneys to work less and accordingly be paid less. Moreover, many law firms permit traditional associates to adopt a reduced workload and be paid a proportionate share of their associate salary. As such, if firms really wanted to create lighter workloads for some lawyers, they would simply adopt this approach for all lawyers employed at a shop.

Another way staff attorneys are treated differently than traditional associates is the resources offered to them by a firm. Many associates are permitted to attend conferences, learn from training seminars, and pursue other activities to grow professionally. This may require a significant expense on a firm’s part, but firms can justify this by pointing to the professional development obtained by the attorney who will hopefully stay at a firm and apply new skills to their work.

In my experience, staff attorneys are rarely offered the chance to attend professional development events. This is very unfortunate because staff attorneys sometimes stay at firms for long periods of time and they can apply any new skills they learn to their work. Moreover, staff attorneys may be more likely to go out of pocket to pay for CLE expenses and other costs since firms are not paying for the types of programs that typically cover this requirement.

Perhaps the most heartbreaking thing about staff attorneys is that they are frequently not considered full members of the lawyer community at a firm. Staff attorneys often do not attend associates’ retreats and other functions held for lawyers at a firm. Moreover, staff attorneys usually do not sit on partner-associate committees, which may mean that they have less of a voice when it comes to working at a firm. In addition, staff attorneys are often not invited to many social events at a firm. Indeed, I have worked at firms where staff attorneys were not even invited to certain holiday functions hosted by a shop.

All of these differences may generate an aura that staff attorneys are second-class lawyers at a firm, which is really unfair. All of the staff attorneys I ever worked with were extremely competent and dedicated to their jobs. Most had become staff attorneys not because they were interested in a lower salary or potentially less work, but because there were no other jobs available. Lawyers of all kinds are part of the same profession and have many shared experiences. It is not right for some lawyers to be treated as second-class attorneys at certain firms.

Ideally, law firms would not have separate tracks for lawyers, but in some situations, hiring temporary lawyers or attorneys that have less responsibilities is unavoidable because of short-term projects and the type of work to be completed. However, law firms should be much more aware about how they treat staff attorneys. Such lawyers should be afforded more professional development opportunities, especially since many staff attorneys stay at firms for extended periods of time and could apply any new skills they learn to their work. Moreover, staff attorneys should be incorporated into the social and professional fabric of a law firm. Staff attorneys are lawyers just like traditional associates of a law firm and administrators should treat them more like how they treat other attorneys at a shop.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

As special bonus season intensifies, Kathryn muses about compensation leadership and the value of going big. Joe talks about vaccines and returning to in-person events and we recap the goings on at CUNY and Michigan where the deans faced pressure over past incidents.

The fair use doctrine as applied in the context of copyright infringement cases has resulted in countless furrowed brows and consternation. Trial courts have applied the doctrine in amorphous and miasmic ways that have left litigants flummoxed, and the resultant confusion has manifested in unnecessary legal costs and countless legal seminar panels. But a recent opinion out of the Second Circuit has brought exhilarating rays of sunshine to where there was previously not much but shadow.

In theory, fair use is simple and allows one to make use of a copyrighted work without the artist’s consent. Set forth in 17 U.S.C. § 107 are four express factors that a court must apply when deciding whether a use without consent was fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

But this straightforward framework has been corrupted and waylaid by court-driven expansion, add-ons, and filigree. Most troublingly, particularly in the Second Circuit, has been the elevation of, and overreliance on, a mysterious “transformative” factor, which does not exist in the statutory text. And which seems to run contrary to the examples of fair use in the statute’s prefatory language, which identifies “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” as paradigmatic fair uses.

Nobody is quite sure what it means for a work to be “transformative,” and attempts to get there veer into the metaphysical, such as when the Second Circuit wrote that a use may be fair when the underlying work is “transformed in the creation of new information, new aesthetics, new insights and understanding.” This explanation, while groovy, could apply to literally any derivative work, and derivative works cannot be created without the consent of the author. So, we are left at a loss as to when a work is “transformative” and why that should matter.

It is thus hard to blame the trial courts for the consistent waywardness that attends fair use decisions, given that they take direction from the appellate courts and, particularly in the Second Circuit, that direction has been soupy if not disastrous. At least it was, before the recent decision in The Andy Warhol Foundation for The Visual Arts, Inc. v. Lynn Goldsmith. There, the Second Circuit met the aching need for clarity that has existed since the circuit’s bizarre Cariou v. Prince decision, which has been widely criticized by courts and commentators alike (see links above).

But, that was another Prince on another day. Here, Lynn Goldsmith, a prolific and masterful photographer, created a stunning black-and-white photograph depicting a young Prince Rogers Nelson, later known as the Artist, and as a logo, and as just Prince. She, via her company, entered into a license with Vanity Fair (for younger readers, Vanity Fair was at one time a thriving magazine that sat at the very head of the cool kids table) that allowed for her Prince photograph to be used as a “visual reference” for the creation of a derivative work that would be published in Vanity Fair.

Vanity Fair then engaged Andy Warhol to muck about a bit with the Goldsmith photograph. He added color and effaced some of the definition but did not add much of substance to the underlying work. The resulting derivative was published in Vanity Fair in 1984, inclusive of a “source photograph” credit to Goldsmith.

Thereafter, despite this credit and knowledge of the reliance on Goldsmith’s photograph, Warhol sold prints of the Vanity Fair work as well as 15 other items based on Goldsmith’s photograph without advising Goldsmith, and certainly without sharing with her the proceeds.

And the copying was obvious. As the court slyly notes, the Warhol Foundation’s counsel, in an obdurate bit of lawyering “did not concede below that the Goldsmith Photograph was the source image for the Prince Series, arguing instead that “somehow, Warhol created” it. But, the court is not convinced by the “somehow” defense and further notes that the same counsel elsewhere conceded that Goldsmith’s work was the “source image” for the Warhol derivative. Also in the record was a Warhol expert’s testimony as to Warhol’s creative process, which apparently included a whole lot of tracing and even incorporated that old grade-school art exercise of “project[ing] an image onto paper” for such purposes. Warhol’s copying of Goldsmith’s work to create the derivative did not appear to be in genuine dispute.

When Warhol passed, the Andy Warhol Foundation (AWF) obtained his copyrights in the Goldsmith/Warhol work and continued to monetize the derivatives, all the way until 2016 when AWF made a deal with the very same Vanity Fair that first published the work back in 1984. This time, though, Goldsmith was excluded from the deal and the work was credited solely to Warhol.

Something momentous must have occurred between 1984 and 2016. In 1984, Vanity Fair sensibly contacted Goldsmith and negotiated a license to use her work with proper attribution. In 2016, Goldsmith’s work, the very same work, was simply exploited without consent. That something momentous is almost certainly the rise of the fair use defense. In its wake, there is no reason to pay the artist when you can simply exploit her work and later invoke fair use in court when challenged.

Which is exactly what was argued to, and credited by, the district court, which entered judgment against Goldsmith on the basis of fair use. The district court concluded that the work at issue was “transformative” because, and stay with me, this gets a bit abstruse, Goldsmith’s work depicted Prince as “not a comfortable person” and a “vulnerable human being,” while Warhol’s derivative depicted Prince as an “iconic, larger-than-life figure[.]” After invoking the magic-word “transformative,” the court seemed to give short shrift to the remaining factors, noting that the creative nature of Goldsmith’s work was “of limited importance” due to the transformation.

Finally, despite the fact that Goldsmith had literally entered into a license for the use of her work as part of the original Warhol derivative published in Vanity Fair, the court concluded that not obtaining a similar license to exploit the same and other derivatives in commerce, including a later piece in the same magazine, would not affect the market for such licenses.

The Second Circuit reversed and with vigor. But, again, it is hard to fault the district court, which was constrained in that it had to follow the very bad Cariou precedent and the hazy “transformative” analysis enthusiastically espoused therein.

This circuit here not only correctly applies the statutory fair use factors, but cabins, and even walks back to a great degree, the elusive and far-ranging Cariou analysis, noting that that case was the “high-water mark of our court’s recognition of transformative works.”

While it is hard to detect tone in a written opinion, when the opinion notes that Cariou’s directive is that we evaluate whether a work is transformative by examining how it may “reasonably be perceived” one hears a faint echo of a raised eyebrow. Of course, how a work may “reasonably be perceived” is just word salad for “looking” at a work, and the directive thus lacks utility.

In rejecting the district court’s finding that the Warhol derivative was a “transformative” fair use the circuit cautions against the “judge as art critic” and finds that “transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic –- or for that matter, a judge –- draws from the work. Were it otherwise, the law may well “recogniz[e] any alteration as transformative.” This is precisely the reason why the “transformative” analysis was always such a morass — the definition depended on who was doing the defining.

The circuit also shunts aside some of the more mystical elements of the Cariou analysis and finds that “there can be no meaningful dispute that the overarching purpose and function of the two works at issue here is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person.”

The panel adds, with a bit of a burn, that Warhol’s derivative is “closer to presenting the same work in a different form, that form being a high-contrast screenprint, than they are to being works that make a transformative use of the original.” This leads to the adroit and commonsense point that when you are looking at two pieces of visual art — here, a photograph and a stylized tracing (or screenprint) of that photograph — the question of whether the latter is “transformative” is not much help given that they have the same purpose. As a result, the district court’s conclusion that Warhol’s derivative was transformative was wholly rejected as being “grounded in a subjective evaluation of the underlying artistic message of the works rather than an objective assessment of their purpose and character.”

The circuit also, importantly, notes that derivative works like the one at issue intrude on an artist’s right to create derivatives and license others to do so. And it confirms that while previous Second Circuit panels were wasting so much time on “transformation” they were also failing to acknowledge the factor that should carry the most weight, that which looks at the “market harm” that would result if the copying at issue got a free pass. In this regard, after correctly concluding that the infringer bears the burden of proof on each factor, the court rejected the notion that Warhol and AWF “are entitled to monetize [Goldsmith’s work] without paying Goldsmith the ‘customary price’ for the rights to her work” and found that exploitation like that at issue in the case, if unchecked, would visit serious harm on both Goldsmith’s ability to license her work and the market as a whole.

The Second Circuit concludes not only that all of the stated fair use factors favor Goldsmith, but also that the Warhol derivative is substantially similar to her work as a matter of law, which will essentially establish liability for infringement when the case returns to the trial court.

This decision, even with its strength, pellucidity, and lack of equivocation, will not deter infringers and copyists from continuing to claim that their knock-off or verbatim reproduction is a “fair use,” but it will allow courts to more easily review and reject these attempts and, in due time, return the fair use doctrine to where Congress intended: the facilitation of matters of criticism, comment, news reporting, teaching, scholarship, and research.

(N.B., the author has represented Lynn Goldsmith in other matters but was not involved in the Warhol case.)

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

As another hour passes by, another Biglaw firm announces a special bonus. This time around, it’s Schulte Roth & Zabel — a firm that brought in $465,177,000 gross revenue in 2019 — that’s matching the Davis Polk scale.

The firm is offering special bonuses to associates all the way up to the class of 2012, while bonuses for elder classes and counsel will be communicated separately (full memo available on the next page):

Associates at the firm are expected to meet (or exceed) the firm’s customary hours requirements to get these bonuses in hand, but not to worry, because catch-up payments will be available in December to those who miss the mark for the June payout date. The class of 2020 will not be expected to meet any hourly requirement in order to receive the June bonus. How nice. Congratulations to everyone at SRZ!

(Flip to the next page to see the full memo from Schulte Roth & Zabel.)

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 the memo and send 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 Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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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.

I sit on the board of directors for a local legal nonprofit. At approximately the beginning of the pandemic, the board approved a 33.75-hour workweek for staff (without a reduction in salary or full-time benefits).

By all appearances, the change has been a resounding success, even amid the challenges of the last year. People were able to more easily transition to a mostly remote style of work. Productivity actually increased modestly. It’s harder to track happiness than it is to track productivity, but I imagine employees liked having a little more time to themselves every week. Still, I wasn’t surprised to see some resistance among fellow board members in extending the reduced 33.75-hour workweek indefinitely.

We ultimately agreed to extend the reduced workweek a few months more, and to revisit the issue. And I get the reticence. Boards of directors are not supposed to make hasty decisions. Plus, the type of people who sit on the boards of legal nonprofits are often people like me: well-off lawyers in private practice who have the luxury of being able to sit on nonprofit boards. Another thing well-off lawyers at private law firms tend to have in common is that for them personally, 33.75 hours of work sounds like an average Monday through Wednesday.

But just because lawyers in private practice have a garbage culture around work-life balance and must suffer the albatross of the billable hour doesn’t mean that everyone else should have to. Study after study shows that reducing worker hours from 40 (or more) per week actually boosts overall productivity. Workers who put in closer to 30 weekly hours than 40 are better-rested and waste less time; organizations, in addition to getting more productivity out of their workers, save on things like electricity costs.

On the other hand, large-scale longitudinal panel studies suggest that regularly working long hours (say, 48 hours or more per week) leads to exhaustion, burnout, occupational stress, depression, anxiety, and other mental health disorders. It also “impedes the ability to care for oneself.” I’m sure none of that sounds at all familiar to my fellow lawyers out there.

A handful of companies have experimented with shorter workweeks in the recent past, to mostly good results. Microsoft Japan gave workers a four-day week, while still paying them the same rate they were getting for five days, and reported a productivity boost of 40 percent. Several U.S. software companies tried shortened workweeks and saw great returns in the form of recruitment and retention.

Still, a recent survey found that in the U.S., 39 percent of workers themselves express a distaste for the four-day workweek. There’s no real reason for it, other than that most human beings resist any type of change whatsoever, and the inertia of having been doing five-day, 40-hour workweeks for about a century (having a 40-hour workweek is itself only because we went from a one-day to a two-day weekend when early 1900s employers started to recognize that making people work six days per week was awful).

The five-day (or six-day, or seven-day) workweek isn’t going anywhere anytime soon in private law firms. The billable hour incentivizes the inefficient use of time (for the billers, anyway), and until the legal profession finds a better way to charge, the mental rot endemic within the private sector will be with us. But in the public sector, and especially in the world of legal nonprofits where there is a little more room for innovation and open-mindedness, there is no solid reason to oppose shorter workweeks.

Beyond the productivity and worker happiness benefits that seem generally applicable across industries, shorter workweeks are one of the few benefits that legal nonprofits can provide but private sector legal entities cannot. Legal nonprofits have a difficult time attracting and retaining talent because such organizations cannot match the pay workers of comparable experience could make in the private sector. Part of resolving this issue is doing something about crushing law school student loan debt. Another part, though, is offering workers something they can’t get elsewhere, something tangible, like more of their lives back (spending your days helping people who need it and can’t afford to hire an attorney on their own probably offers some warm and fuzzy feelings too, but feelings don’t let you spend Friday at the zoo).

It’s something to think about. Shorter workweeks for people at legal nonprofits would benefit the employees, the organizations, and the underserved populations they’re trying to help. And, just maybe, in lieu of our lawyerly standard of lagging behind the rest of society by 20 years on everything, it would allow at least part of the legal profession to be a workforce leader on something important.

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Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

With associate special bonuses tearing through Biglaw, it’s easy to think the firm’s entire focus is on them. But as an increasing number of Biglaw firms are showing — it takes more than just associates to make legal magic happen, and saying thank you to *everyone* is on the to-do list.

Clifford Chance and Herbert Smith Freehills previously announced staff COVID bonuses, but now more firms are getting in on the action. These are the bonus wars we really like to see.

As reported by Roll on Friday, Linklaters is giving staff a 5 percent bonus, which is the same bonus standard Clifford Chance and Herbert Smith used. Another firm, Addleshaw Goddard, is taking a slightly different approach. They’re paying out £1,500 (or equivalent outside of the UK) to all staff. Both firms have said these COVID appreciation bonuses are in addition to any usual performance/salary reviews or year-end bonuses.

Kudos! Let’s hope even more firms decide to share the largesse with staffers!

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 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).

It is never advisable to be too sure of how the Supreme Court will rule on a case after listening to oral arguments, but it surely seemed that at least a majority of the Justices lean toward ruling against the NCAA, which is hopeful that the highest court will find its rules restricting education-related compensation are not in violation of antitrust law.

Justice Kavanaugh was clearly the largest advocate for the athletes seeking to maintain lower courts’ opinions that the NCAA’s gross restrictions should not be maintained. He first argued with the NCAA’s lawyer, Seth Waxman of WilmerHale, that the NCAA is worried about college athletes receiving $6,000 per year when television contracts are worth billions of dollars, and that $6,000 is not a great sum of money when you consider the fact that athletes are often injured and unable to major in what they want. He added that the NCAA talks about $6,000 as an exorbitant amount of money when it truly is not.

However, the most important line from the entire hearing may have been when Justice Kavanaugh said that antitrust law should not be a cover for the exploitation of college athletes. He then acknowledged that Waxman highlighted tradition from other cases and responded that those cases were from different eras. This was supported by Justice Kagan who told Waxman that the NCAA can only ride on the history of amateurism for so long and that a lot has changed in the way that athletes have been treated over time.

Justice Gorsuch seemed to be just behind Justice Kavanaugh in terms of his display of angst toward the NCAA. He highlighted that the NCAA has monopsony control over labor price and that college athletics is not like professional leagues where the teams collectively negotiate with a players’ association. Near the end of the hearing, Justice Gorsuch said that the NCAA possesses complete market power over college athletes at the highest level and thus restrictions on athlete compensation are likely to have significant anticompetitive effects.

A common thread throughout the oral arguments revolved around the pay received by college coaches. Justice Thomas said that it was odd to him that coach salaries have ballooned while amateurism has purportedly remained a constant. Justice Alito made it seem like his position is that college athletes are used up by powerhouse schools who are largely responsible for generating revenue that then goes to coaches’ salaries. He also noted that very few of the athletes will ever make money at the professional level.

The most NCAA-friendly Justice appeared to be Justice Breyer, who mentioned that he is worried about judges getting into the business of how an amateur sport should be run. Justice Sotomayor, who at first asked Waxman why the NCAA does not simply let the conferences make rules surrounding restrictions on athlete compensation, later told Solicitor General Prelogar, who represented the Department of Justice at the oral arguments, that she is not completely comfortable that a ruling in favor of Alston would not destroy the college game as it currently exists.

There were also quite a few comments throughout the oral arguments expressing concern about the NCAA constantly being involved in litigation if the Court ruled in favor of Alston. If that is one of the main concerns of the Justices, then that could bode well for Alston.

It appears that Justices Kavanaugh, Gorsuch, Thomas, and Alito are squarely on Alston’s side. Justice Breyer seems to be siding with the NCAA. The remaining Justices are wildcards, but Justice Barrett also seemingly swayed toward Alston. Ultimately, no one knows how the Court will rule, but the NCAA cannot be feeling great after oral arguments.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Thanks to the pandemic and the introduction of the LSAT-Flex — a shorter law school admissions exam that applicants were able to take from the comfort of their homes — not only was the most recent pool of law school applicants larger, but their test scores were much higher than in years past. But just how high are we talking here?

According to the Short List blog of U.S. News & World Report, the median LSAT score for full-time students entering in fall 2020 was an average of 157 at the 193 law schools that are ranked by the magazine. Thirteen of the schools near the tippy top of the list, however, had an average median LSAT score of 170.

Which schools made the list? Take a look:

It’s not exactly shocking that the best law schools in the country have the best LSAT scores, but what is shocking are the law schools whose graduates have the most debt. Stay tuned for our discussion of those doomed to debt later this week.

How did your law school measure up against these schools?

13 Law Schools With the Highest LSAT Scores [Short List / U.S. News]

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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.