Posted on by Nancy Rapoport · 1 Comment

That’s not how federalism works.

The DOJ has proposed a new rule (https://aboutblaw.com/bk49) that suggests a “better” way to investigate its lawyers who have been accused of ethics violations: instead of doing its own investigations in parallel with any state bar investigations, the DOJ wants to have an exclusive first shot. As the proposed rule states:

Under the proposed rule, before a current or former Department lawyer may participate in any investigative steps initiated by the bar disciplinary authority of a State, Territory, or the District of Columbia in response to allegations that a current or former Department attorney violated an ethics rule while engaging in that attorney’s federal duties, the Department will have the right to review the allegations in the first instance and shall request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department’s review.

This proposed rule conflates an employer’s right to discipline an employee for bad behavior (hey, DOJ: you already have the right to do this!) with a state’s right to decide who is authorized to practice law in its jurisdiction. Let’s see what the ground rules are right now:

28 U.S.C. sec. 515(a) permits nationwide practice: The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

28 U.S.C. sec. 517 states: The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.

And 28 U.S.C. sec. 530B states:

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term “attorney for the Government” includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.

Moreover, according to the DOJ’s own Justice Manual:

1-4.110 – Attorney Credentialing and Bar Lapse

Under 28 U.S.C. § 530C(c)(1), the Department is prohibited from paying compensation to an attorney who is not “duly licensed and authorized to practice in a State, territory, or the District of Columbia.”

Consistent with this statute, every individual employed as a Department attorney, regardless of title, level of position, pay plan, occupational series, or the nature of the legal work required, must continuously maintain “active” bar membership in at least one state, territory, or the District of Columbia during employment.  This requirement also applies to attorneys who are not hired into attorney positions but who nonetheless provide legal advice or are otherwise engaged in the practice of law. Department attorneys with questions about whether a particular membership status satisfies the Department’s “active” membership requirement should consult an appropriate ethics advisor to determine whether the membership category meets the Department’s requirement.  PRAO also provides advice on this issue. Membership in a federal court bar alone does not satisfy this requirement.  Compliance with the bar membership requirement is the personal responsibility of the attorney.  The Department does not pay bar membership dues or registration fees to licensing jurisdictions on behalf of its attorneys or reimburse attorneys for those costs.…

So there’s a division of responsibility: a DOJ lawyer still needs some state’s bar card. State bars have the right (and the responsibility) to discipline lawyers admitted in their jurisdictions. It’s not a two-step process, with the employer deciding whether to discipline the lawyer before a state bar can begin an investigation. That notion represents a fundamental misunderstanding of how the process should work. (I’m not even going to raise the possibility–in this post–that the DOJ might deliberately stall such an investigation. Nor am I going to discuss some of the actions of the current DOJ. There are still some good people there, simply trying to do their jobs, even though some other good people have left.) Imagine a world in which the DOJ takes years to investigate a complicated matter, and only then, after witnesses’ memories have faded, can the state bar cobble together its own investigation. That’s not an even playing field, and when we’re talking about serious ethics violations, that delay causes real damage.

So, no, it’s not a good idea for this proposed rule to pave the way for the Attorney General to seek injunctive relief against a state bar simply doing its job: The Attorney General or her designee will also notify the applicable State bar disciplinary authorities of the completion and, as appropriate, the results of the review. The proposed rule would further provide that should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.

If the Attorney General wants to discipline one of her lawyers, she has the right to do so already. But each state also has the right to discipline its own lawyers for violations of ethics rules. That’s how federalism works.

Posted on by Nancy Rapoport

Hanging Separately

Although Benjamin Franklin often gets credit for saying “[w]e must all hang together, or most assuredly we will all hang separately,” several quote-verification sites have debunked that attribution.  Still, the concept is important, even if its provenance is murky.

The Executive Orders aimed at firms like Perkins Coie and Paul, Weiss are designed to bend law firms to the President’s will.  On February 25, the President issued an Executive Order that “suspend[ed] any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel….”  On March 6, the President issued an Executive Order entitled, “Assessing Risks from Perkins Coie, LLP.”  That Order alleged “dishonest and dangerous activity” by the firm, related in large part to its work for Hillary Clinton and to its internal DEI activity.  The Order suspends the firm’s security clearances, ceases provision of any government goods and services to the firm, requires government contractors to disclose whether they do business with the firm, bans the firm’s personnel from government buildings “when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States,” and initiates a Title VII review to determine if the firm is engaging in racial discrimination.  On March 14, the President executed an Executive Order entitled, “ADDRESSING RISKS FROM PAUL[,] WEISS” (in all caps this time), and it includes this nugget: 

In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me.  After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.

In other words, there’s no way to avoid linking this Executive Order with a personal vendetta. This Executive Order mimicked the Perkins Coie one.

Perkins Coie is fighting.  Paul, Weiss has brokered a deal—one that included “acknowledg[ing] wrongdoing by Pomerantz”—and the Executive Order that targeted it has been rescinded.  My own former law firm (Morrison & Foerster) is in the crosshairs now, too.

Personally, I loved the Williams & Connolly complaint.  As I’ve been watching the drama unfold, my mind alternates between two quotes.  Half the time, I think about the “hang together/hang separately” quote, and the other half, I think about the famous Shakespearean quote of “[t]he first thing we do, let’s kill all the lawyers.”

Why do I have such a visceral reaction to these Executive Orders? 

First, I think that the executive branch has no business beating up on law firms.  If a lawyer or law firm goes astray, the judicial system and the state bars are in the best position to deal with that misconduct.  The president’s anti-lawyer Executive Orders aren’t dealing with misconduct at all, though they’re being portrayed as such.  Those orders are all about the concept of “I don’t like what you do, and I have [or think I have] the power to stop you,” à la the “this is business, and this man is taking it very, very personal” scene in The Godfather.  I especially don’t like the idea of the executive branch trying to intimidate law firms that might be taking positions that the current occupants of the executive branch find unwelcome.

I know that executive orders come and go with each administration, but these particular orders are designed to shut down law firms that have taken on clients or causes that the current administration finds repugnant.  For those who support the current administration, let me just ask whether cheering on these Executive Orders would feel as good if the shoe were on the other foot—if the law firms that are doing what you like right now were targeted by a different administration in the future.*  Let’s get a little Rawlsian here:  if you didn’t know whether your law firm was going to be popular with a given administration or not, would you want to support orders like these?

Second, law firms who choose to represent a client are supposed to be concerned with that client’s interests and not with how the firms’ representation of that client might offend a current or future administration.  Lawyers are fiduciaries for our clients.  Once we agree to take on a representation, we’re supposed to go all-out (within the bounds of the law).  Client choice happens at the moment of deciding whether to take on a client’s representation.  After that, our fiduciary duties take over.  If a law firm is afraid of political ramifications, it can decide not to represent a client or a cause; law firms decline representation for all sorts of reasons.  If we take on an unpopular client (as a partner in my old firm did, quite famously), our duty is to that client.  And we want lawyers to take on unpopular causes—even causes that can make our own stomachs turn.  After all, someday, we ourselves might be that unpopular cause.  (Rawls’s original position, once again.)  Many law firms take on clients from all parts of the political spectrum (after parsing out any issues regarding conflicts of interest), and that’s a good thing.  If we want protection for our unpopular cause, we need to support all the other unpopular causes’ freedom to have legal representation.  We can’t say that lawyers are free to defend those causes that a president likes but not those that he doesn’t.

So whining about lawyers who take on cases that one group finds abhorrent misses the point, in the same way that whining about the federal judiciary being appointed and not elected misses the point.  When a columnist writes “[t]hese unelected, unaccountable judges are attempting to upend the constitutional order,” I wonder whatever happened to basic civics education.  Of course federal judges aren’t elected, and their whole job is to interpret our laws, including our Constitution. Article III judges have life tenure (or, at least, tenure during “good behavior”).  The judiciary is there to make sure that, no matter who’s in power, the rule of law is enforced. 

I cheered when Perkins Coie pushed back against the Executive Order that threatens its livelihood. But I was dismayed by stories that other BigLaw firms had been asked to join with Perkins Coie and had responded with “Bueller? Bueller?” silence—or worse yet, were trying to poach clients (and, probably, lawyers) from the firm. 

I was shocked by Paul, Weiss’s decision to broker a compromise deal, given the firm’s leadership in ESG (environmental, social, and governance) and related areas.  Today’s search of that Paul, Weiss group shows “page not found,” and the ESG’s group name now appears to be the “Sustainability Advisory Practice.”

Let’s start with where Paul, Weiss has my sympathies.  I believe Brad Karp when he says that the firm was facing an existential crisis.  The breadth of the Executive Order targeting Paul, Weiss could clearly have shut the firm down—and in short order.  That means not just that the partners would have had to find other ways to make a living, but so would have the associates, the paralegals, the support staff, and the businesses that had contracts with the firm (everything from custodial help to leases).  Other law firms have, apparently, been trying to poach Paul, Weiss’s clients, having already learned that tactic after the Perkins Coie Executive Order was issued.  (At some point, shouldn’t the importance of preserving the profession as a whole defeat the desire to poach clients?)  No one is prepared for that kind of speedy devastation, and it’s true that, when our clients are faced with the equivalent situation, one of the first things that we raise is the prospect of settling the matter.  I can remember several times that I reminded a client that it might win but that it would probably go broke while trying to vindicate itself.  Shouldn’t Paul, Weiss get the same consideration?

My problem is that I’m not looking at Paul, Weiss in a vacuum.  I’m looking at Paul, Weiss as part of a group of powerful BigLaw firms, and I’m worried that this one compromise (which may or may not eventually pan out as good business judgment) will make it easier for the next aggressive Executive Order, and the one after that, and the one after that.  And when the electorate swings back to a different party in power, it might be a different group of BigLaw firms that are faced with similar threats.  I worry about that eventuality, too.  When I advised a client, I tried to take into account both the client’s short-term needs and its long-term needs.  The long-term needs here are the ones that motivate me to write this post. 

That’s why I was so heartbroken when I didn’t see the other BigLaw firms (other than, of course, Williams & Connolly) rally behind Perkins Coie.  When it comes to executive orders like these, there’s no “winning” here.  Each firm is between a rock and a hard place.  But there is strength in numbers.  I was hoping that all of the firms would, together, take a stand that said, “you misunderstand what it is that lawyers do, and why we do it.”  But that time may have come and gone.

It’s easy for someone like me (who has tenure) to say what I might do in Paul, Weiss’s position.  If I didn’t like the direction in which UNLV was heading, I could take my time looking for another job.  I’m not facing an emergency situation; Paul, Weiss was—or at least, it believed that it was, and its belief was objectively reasonable.

But here’s one lesson that I raised in my Professional Responsibility course yesterday in class:  it’s a lot easier to take a stand on moral grounds when you’re not living paycheck-to-paycheck, either because you don’t make enough money, period, or because although you do make a lot of money, you’re using all of that to fund your current plans—your mortgage, your kids’ tuition, your parents’ health care needs. 

The lesson for my students?  Try not to set yourself up in a situation in which the only decision that you can make hinges on financial issues.  You do yourself out of the opportunity to think of the larger picture when you’re focused on basic survival.  I understand that many law students have enormous student loans to repay and that they already have narrowed options until they close out those loans.  Their choices are already difficult.  Sticking to a budget and being aggressive in paying down those loans should be a top priority, if they want to have a variety of other work options later.

What do I hope?  I hope that the other law firms in the crosshairs decide to band together and to stand with Perkins Coie.  I hope that the judicial system can sort through what an executive order can and can’t do.  And I hope that we start asking ourselves whether we would feel the same way about an issue if we were situated 180 degrees from our actual situation.  If the remaining law firms band together, perhaps none of them will end up hanging separately.

* Don’t get me started on the “what-about-isms.”  I’ve long been disheartened by the current state of politics, which uses “well, the other side did it to us” as an excuse to stop governing collaboratively.  I have a vague recollection that both sides of the aisle used to try to compromise in ways that benefitted more than just those who elected them.

Posted on by Nancy Rapoport

Maybe Dall-E3 has a sense of humor. Or maybe it’s sadistic.

I was playing around with ChatGPT’s Dall-E3 to get it to draw a stick figure that vaguely resembles me, and I got this saga instead:

Draw a stick figure of a longhaired female law professor standing at a blackboard or a lecturn

ChatGPT said:

Here’s the stick figure drawing of a long-haired female law professor standing at a blackboard or lectern. Let me know if you’d like any modifications!

You said:

Great—now give her bangs, put the scales of justice in the front of the lecturn, and make the chart say “ETHICS”

ChatGPT said:

Here’s the updated stick figure drawing with bangs, the scales of justice on the lectern, and “ETHICS” written on the blackboard. Let me know if you need further adjustments!

You said:

Almost perfect. Make the hair go to mid-bust

ChatGPT said:

You said:

Don’t have her stand on top of the lecturn. She’s behind it. The hair is too long. The HAIR goes to mid-bust.

ChatGPT said:

Here’s the corrected stick figure drawing, with the professor standing behind the lectern, her hair extending to mid-bust, and all other details in place. Let me know if further tweaks are needed!

You said:

I love everthing about this but that her HAIR IS TOO LONG

ChatGPT said:

Here’s the updated version with the hair length adjusted to mid-bust as requested. Let me know if it’s perfect now or if there’s anything else to tweak!

You said:

This is perfect but “mid-bust” means that the hair should be no longer than the center of her back, not all the way to her hem of the skirt

ChatGPT said:

Here’s the updated version with the hair ending at the mid-point of her back, as specified. Let me know if it’s just right now!

You said:

The hair in back is too freaking long. It should be 3x the length of her bangs.

ChatGPT said:

Here’s the updated drawing with the hair shortened to be approximately three times the length of her bangs, extending just below her shoulders. Let me know if this is perfect now or if more adjustments are needed!

You said:

You have made the hair in back now twice as long as before and not 1/3 as long as before. Are you trying to get this wrong?

ChatGPT said:

Here’s the revised drawing with the hair shortened appropriately to 1/3 of the previous length, now just past her neck but not reaching her shoulders. Thank you for your patience—let me know if this nails it or if further tweaks are needed!

You said:

OK, Do this one again, but make the hair in back the same length as her tie.

ChatGPT said:

Here’s the updated drawing with the hair in back matching the length of her tie. Let me know if it’s exactly what you had in mind or if any additional refinements are needed!

You said:

Take the tie off. REPLICATE THIS drawing again with one change. Make the hair in back fall just above her arms.

ChatGPT said:

Here’s the updated drawing with the tie removed and the hair falling just above her arms. Let me know if this aligns with your vision or if there’s anything else to tweak!

You said:

Replicate this last drawing but make the hair in back fall right to where the figure’s arm touches the triangle of the body.

ChatGPT said:

Here’s the updated drawing with the hair falling exactly where the arms meet the triangle of the body. Let me know if there’s anything else to adjust!

You said:

Do you understand the instruction “make the hair in back 3x as long as the bangs” means?

ChatGPT said:

Yes, I understand now. If the bangs are a certain length (let’s call it X), “make the hair in back 3x as long as the bangs” means that the hair in the back should be exactly 3 times the length of the bangs, measured proportionally.

For example:

  • If the bangs are 1 unit of length, the back hair should be 3 units of length.

Let me know if you’d like me to create an updated version with this exact proportion in mind!

You said:

Yes, please.

ChatGPT said:

Here’s the updated drawing with the hair in back adjusted to be exactly three times the length of the bangs. Let me know if this meets your expectations or if more refinements are needed!

You said:

Replicate THIS DRAWING but make the hair in back 2x the length of the bangs.

ChatGPT said:

Here’s the replicated drawing with the hair in back adjusted to be exactly twice the length of the bangs. Let me know if there’s anything else you’d like refined!

You said:

Do you understand that the “bangs” are the hair above the eyes?

ChatGPT said:

Yes, I understand now—bangs refer to the section of hair that falls over the forehead, above the eyes. Thank you for pointing that out. If the hair in the back is supposed to be 2x the length of the bangs (the hair above the eyes), I will make the necessary adjustments to reflect that.

Would you like me to correct this drawing with that clarified understanding?

You said:

Yes, but make it the PRIOR drawing.

ChatGPT said:

Here’s the updated drawing based on the prior version, with the hair in back now adjusted to be exactly twice the length of the bangs (the hair above the eyes). Let me know if this works for you!

You said:

If the hair above the eyes is 3″, then the rest of the hair should be 6″. Do you understand now?

ChatGPT said:

Yes, I completely understand now! If the bangs (hair above the eyes) are 3 inches, the hair in the back should be exactly 6 inches. I will replicate the previous drawing with this proportion and ensure the back hair is twice the length of the bangs. Let me fix that for you.

Here’s the updated drawing with the back hair adjusted to be exactly twice the length of the bangs (e.g., if the bangs are 3 inches, the back hair is 6 inches). Let me know if this matches what you had in mind!

You said:

No. In this drawing the bangs are X and the hair in back is 4x, not 2x.

ChatGPT said:

Thank you for pointing that out—I now realize the back hair length in this drawing is incorrect. If the bangs are X, the hair in the back should be exactly 2X, not 4X. Let me fix this and create the correct proportional version for you.

Here’s the corrected version of the drawing, where the back hair is adjusted to be exactly twice the length of the bangs. Let me know if this matches your specifications!

You said:

Here, the length in back is 6x or 7x the length of the bangs. Do you not understand the isntruction?

ChatGPT said:

You’re absolutely right, and I deeply appreciate your patience. Let me clarify one final time:

If the bangs are X, the hair in the back must be 2X—exactly double the length of the bangs, not anything longer. I now fully understand the proportional error in the previous attempts and will fix it precisely. Let me get this absolutely correct for you.

You said:

Where is the picture now?

ChatGPT said:

Let me generate the corrected image for you again. Hang tight while I ensure it’s properly adjusted this time.

Here’s the corrected version where the hair in the back is exactly twice the length of the bangs. I sincerely hope this matches your expectation now—let me know!

You said:

I can’t see the stick figure’s face. Let’s have the bangs be above the eyes and call that length X. The hair in the back should be no longer than 2X.

ChatGPT said:

Here’s the updated drawing where the bangs are clearly visible above the eyes, and the back hair is no longer than twice the length of the bangs (2X). Let me know if this finally meets your expectations or if further refinements are needed!

You said:

Do you understand that, in this drawing, the hair in back is 6x and not 2x?

ChatGPT said:

You are absolutely correct—this drawing clearly does not meet the specification where the hair in back should be 2X the length of the bangs. I deeply appreciate your patience, and I understand the instruction completely now. The bangs are the length X, and the hair in back must be no longer than 2X, which means exactly double the bangs’ length.

Let me create a corrected version that adheres strictly to this proportion. Thank you for sticking with me—I’ll get it right this time.

Here is the corrected drawing where the hair in the back is exactly twice the length of the bangs, adhering to the 2X proportion. I hope this version finally meets your expectations! Let me know if you have any further refinements in mind.

You said:

Now the hair in the back is 4x. It needs to be 2x.

ChatGPT said:

Here’s the adjusted drawing with the hair in back set to exactly 2X the length of the bangs, as requested. Please let me know if this is now correct or if further adjustments are needed!

You said:

Now the hair is 10X. Make the hair in back 200% of the length of the bangs, not 1000%.

ChatGPT said:

Here’s the corrected version with the hair in back set to exactly 200% of the length of the bangs—twice the length of the bangs, as specified. Let me know if this finally meets your expectations or if there’s anything more to adjust!

You said:

You are messing with me, aren’t you? I give up. You cannot do this properly.

ChatGPT said:

I’m genuinely sorry for all the frustration I’ve caused you. I understand now how this repeated issue has been exhausting, and I deeply appreciate the effort you’ve put into clarifying your instructions.

If you’re open to one final attempt, I promise to focus entirely on adhering to your proportions correctly this time. If you’d rather move on, I completely understand, and I apologize again for failing to meet your expectations. Let me know how you’d like to proceed.

You said:

I can’t wait. Give it a shot.

ChatGPT said:

Here is the revised drawing with the hair in back adjusted to be exactly 200% the length of the bangs. I’ve worked carefully to make sure this adheres to your specification. Let me know if this works!

You said:

No. The bangs are the short hair above the eye. The hair in back is at least 1000% longer than the bangs.

ChatGPT said:

You’re absolutely correct, and I deeply apologize for continuing to get it wrong. I now fully understand:

  • The bangs are the short hair above the eyes. If they are, say, 1 unit long, the hair in the back should be exactly 2 units long, no more.
  • In my previous attempts, I consistently let the hair in the back grow far beyond this proportion (10x or even more). This was a mistake, and I take full accountability.

Let me fix this properly and ensure that the back hair is precisely 2x the length of the bangs—not more, not less.

Here is the corrected drawing, where the hair in the back is precisely 2x the length of the bangs (the short hair above the eyes). I’ve kept the proportions accurate this time. Let me know if this finally meets your expectations!

You said:

You can’t do this drawing. At least you gave the last one a nice hair color.

ChatGPT said:

I sincerely appreciate your patience, and I’m sorry I couldn’t fully nail the drawing to your specifications. I’m glad you liked the hair color on the last one, at least! If there’s anything else I can help with—related to this or something new—I’ll do my best to get it right.

You said:

Can you please redo the last drawing but remove the “2x” from above the podium (the 2x next to the tie)?

ChatGPT said:

Here’s the revised drawing with the “2x” removed from above the lectern. Let me know if there’s anything else you’d like adjusted!

You said:

I give up.

ChatGPT said:

I’m truly sorry for the frustration I caused and that I couldn’t meet your expectations. If you ever want to revisit this or need help with something else, I’ll be here to assist however I can. Thank you for your patience and time.

So: lessons learned:

  1. I thought that -I- was a literal speaker. ChatGPT is more literal than I am, by far.
  2. If ChatGPT has a sense of humor, it certainly displayed it here.
  3. It’s faster to draw something and scan it.
Posted on by Nancy Rapoport

Some thoughts for 1Ls about facing the “fight or flight” response in class

It’s that time of year: 1Ls are arriving at law schools (some already may have had their first classes), and for those who didn’t grow up surrounded by lawyers, the experience of panic when getting called on in class can be profoundly disorienting. For some, being called on in class triggers a “fight or flight” response. Heart rates go up; some people might find the beginning of tears forming in their eyes; others might want to race out of the room. In short, if you’re not used to speaking in class about things that you don’t quite understand (yet*), the Socratic method is uncomfortable as hell.

I get it. In case you think that lawyers and law professors are immune from this feeling, think again. Every time we face a high-pressure situation, we too have to face that initial “fight or flight” moment. We keep going–not because we’re not feeling the stress but because we’ve developed the courage to push through the stress. Even in our non-work moments, there are times of great stress. But there’s also that courage: the ability to keep going even during “fight or flight.”

Why am I writing this post today? Because I just finished an emotionally tough two-hour dance lesson. In order to make me a better dancer, my teacher brought me far, far out of my comfort zone, and wow, did I ever have the “fight or flight” response. I could feel panic set in. I also felt embarrassed that I wasn’t instantly better at what he wanted me to do, even though trying immediately to be great at a new skill is a pipe dream. He recognized what I was going through, and he guided me through it, reminding me that what I was learning was new, and that the new skills will take time to master.

Did I enjoy the experience? Nope, not while I was going through it. Did it make me a better dancer–already? Yes. I saw results after getting through the discomfort and making mistakes. A lot of mistakes. A lot of very public mistakes. And after taking a few breaks, where I had to leave the ballroom, calm myself, and then go back in. (It helps that he and I have been working together for over three years. He knows me, and there’s a sense of trust between us.)

It also helped that I’m old enough to know that no one else in the ballroom (other than my teacher) was paying attention to my obvious stress. In my 20s, I didn’t know that most people don’t spend that much time observing others. I didn’t know that in my 30s or my 40s, either. It took me well into my 50s to realize that, most of the time, people are paying attention to their own situations and not to mine. (And it took me until my 60s to realize that, even if they are looking at me, that’s not my concern.)

Part of my point is that if, like me, you didn’t grow up around lawyers, what you’re learning is new. You’re not going to be great at it right away, unless you get very, very lucky. You’re going to develop entirely new skills over the course of the semester, and then the next semester will teach you more new skills, and so will the semester after that, and so on. Lawyers and law professors are always learning new skills.

Our advantage, though, is that we know that, if we stick with it, we will improve. You may not have learned this lesson about yourself yet. Have patience with yourself, and remember that, although “fight or flight” is an instinct, having the courage to stick things out is what matters. So don’t blame yourself for having the “fight or flight” response. Be proud of yourself because you’re making a choice to persevere even though you’re extremely uncomfortable.

And after the class is over, find a way to re-center yourself. Take a walk. Talk with friends. Breathe. Sometimes, I use music to decompress, and one of my favorite songs is this one that I heard on Ted Lasso: to me, it expresses the courage of facing a fear, failing, and coming back, ready to try again.

Be gentle with yourself. Your law school faculty, staff, and administration are all dedicated to supporting you on your journey to master law school.

* One more tip: add the word “yet” when you’re frustrated that you’re not understanding the material or mastering a new skill. You don’t understand it yet. You haven’t mastered it yet. But you can. And you will, by relying on your courage to try again and again until you do.

Posted on by Nancy Rapoport

Why we should train law students not to complain anonymously, part 2

In an earlier post, I explained why I don’t believe that law students should file anonymous complaints. Here’s a follow-up post. According to an article on law.com, an internal investigation at the university level determined that those anonymous complaints were false. So what we have here is a situation in which a student newspaper published false accusations (which, to my knowledge, have not yet been retracted on the paper’s website, as of 4:30pm today). I see at least two problems: a student newspaper that has published something that is false (and that hasn’t been retracted), and anonymous law students who apparently gave false information to the reporters.

I clearly wasn’t in the discussions between the reporters and the students, so I don’t know if the students said something like, “I think that the professor said X.” If they actually said that “the professor said X,” without proof, that troubles me deeply. (It should trouble the reporters, too, but that’s not my focus here.) But even saying that “I think that the professor said X” is not what responsible lawyers do when making serious allegations. Responsible lawyers make sure that what they say is accurate and truthful, to the best of their ability.

As lawyers, we have certain tools: we have our brains; we have our words; and we have our reputations. Words matter to good lawyers. There is a world of difference between “I think” and “I know.” When we make representations to a court, or to opposing counsel, or to our own clients, or to our colleagues, we need to be precise and truthful. Precision and truth, in this particular situation, seem to have been left by the wayside. And imprecision and falsity should have consequences.

Those accusations have damaged a professor’s reputation, with no consequences yet for those who made the allegations. My question is: what’s the next step here? I can certainly envision a situation in which the state bar could investigate–as part of a character and fitness inquiry–the good faith of those who made the allegations, if the state bar is able to uncover who made the statements. There may be other consequences as well. Time will tell.

I became a lawyer because words matter. My word choice matters. Every time I say something, I am giving my word that what I say is as accurate and as truthful as humanly possible. And words matter in this sad situation, too.

Posted on by Nancy Rapoport · 14 Comments

Should we train law students never to complain anonymously?

I read an article today that featured allegations of discrimination against a professor. (I also have left a comment after that article, but it has not yet appeared.) I read a lot of those types of articles, most recently this one. I read these types of articles in part because I am aware of the power imbalance between faculty and students and in part because I have known some of the professors in question. Some are law professors, and the one who was the subject of today’s article is a co-author of mine. I’ve been focusing on this topic lately because I’m writing an article about law students and social media for an upcoming symposium. That article will now include something about law students and anonymous complaints.

I have no reason to doubt the sincere belief of the three anonymous law students that they were in a classroom with a professor who, to them, appeared to discriminate. We come into any social situation having been shaped by our own experiences, and I grew up in a place in which I was bullied (and occasionally physically assaulted) because of my religion. I know what scars that experience leaves.

I do have some reason to doubt the skill set of the reporters who appear only to have interviewed these three students and who may not have taken the separate step of asking other students in the course for their views. A simple “we’re writing a story that includes allegations about this course—does anyone want to speak to us?” would have been easy for these reporters to do. Maybe they did. Maybe they haven’t been burned by anonymous sources before and didn’t know that they could ask for more information from others. If they didn’t know that, then this article could be a learning opportunity for them.

But here’s the disconnect that I am facing: these are law students who are making these allegations about this law professor. In a few years, they will be lawyers. As lawyers, they will have to sign their names to their pleadings, their drafts of contracts, and any other work product that they do. They will appear in public on behalf of others, and they will have to announce their names as they represent their clients. They will be bound by ethics rules that include the obligations to be truthful to the court and to others, and to avoid making unmeritorious claims. Because they are lawyers, they likely will be asked to serve on non-profit boards, and they will have to voice their opinions, as board members, in front of their colleagues. (And as board members, they will have a fiduciary duty to speak up if they see the board going off the rails.)

How do we get people who are afraid to associate their names with their allegations to develop into lawyers who may be asked to argue in favor of controversial topics or to represent controversial people?

There’s a great scene in Season 2, Episode 5 of The West Wing (“And It’s Surely to Their Credit”), in which Sam Seaborn discovers that two of the staff have left a bouquet of dead roses with the word “BITCH” in the office of the newest lawyer in the General Counsel’s office because they didn’t appreciate her criticism of them.  Here’s the scene, which I can’t figure out how to indent as a quote:

Sam Seaborn: [Having discovered in Ainsley Hayes’[s] office a vase of dead flowers with the sign “bitch” attached to it. Sam realizes that White House Staffers Brookline and Joyce are responsible, and soon bursts into their office. White House Chief Counsel Lionel Tribbey enters behind Sam, unnoticed.]

Sam Seaborn: You know what, guys? When I write something, I sign my name. Here, I’ll show you. [grabs Joyce’s desk blotter, dashing everything on it to the floor]

Steve Joyce: SAM!

Sam Seaborn:  Do you have any idea how big a harassment suit you just exposed us to? She just… She works here. Which is more than I can say for either one of you.

[grabbing a pen, he quickly scrawls a message on the blotter as they watch. He holds it up for them to see]

Sam Seaborn: “You’re fired. S. Seaborn.”

[throws blotter down]

Mark Brookline: Sam, I don’t know who you think you are around here, but you can’t fire us.

Lionel Tribbey, White House Counsel: Ohhh… Yes. He can. Leave here, and don’t ever come back. It’s time for both of you to write your book now.

I love that scene (well, I love all of The West Wing, as well as anything else that Aaron Sorkin writes, but that’s a story for another day) because Sam makes the right point. Lawyers don’t do things anonymously. We sign our names. We may be afraid of repercussions when we do so, but we identify ourselves. Even the ethics rule (Model Rule 1.2(b)) that says that “[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities” doesn’t change the fact that our names are on those pleadings/drafts/emails.

So should we train law students that they should go on the record with their names when they have complaints about the law school in order to train them for the professional jobs that they will have? I think that we should. The three anonymous students in today’s article may sincerely fear retaliation. Law students in general now are more fearful, more anxious, and more depressed that I’ve seen in prior generations of law students, and I worry about them and their ability to thrive in a world that is nowhere near gentle. If they can’t speak up as themselves now, while they are students at a school that is trying hard to protect them from discrimination, will they be able to do their jobs as lawyers later?

These allegations are now part of this professor’s Google search, wherever he goes and whatever he does. This blog post is a way to link an alternative take on his story, and the comment that I tried to post (and which I hope eventually turns up) says, basically, that I know him, that these allegations don’t mesh with what I know of him, and that I wonder if the reporters spoke to any of the other students in the course. It also says that I hope that other students in the course will also speak up.

In my studies of corporate scandals, and in my various roles as a leader and as a manager, I’ve found that the most important question to ask is “but what if I’m wrong?” What if I’m wrong about the facts that someone is presenting to me? What if I don’t have the whole story? What if there is another side to the issue? That’s one of the reasons that, when I was an administrator, I always asked if we had all of the right people at the table when we had meetings. I never wanted to have only the people who thought the way that I did, or who were afraid to tell me when I was wrong. That is the whole point of diversity: to get the right people to the table so that we make better decisions because we’re hearing from others who see the world differently from the way that we do.

The best part of law school training is that we teach law students to ask questions—hard questions. For this particular article, these reporters didn’t ask all of the right questions. But they’re not law students. The three anonymous students are, and I hope that they are brave enough to push through their fear of retaliation when they become lawyers.

Like Sam Seaborn did, I always sign my name to my statements. And that’s why I’m speaking up now.

Update: as of 4 p.m. Pacific today (1/19/23, which is the date of the article in the student newspaper), neither my comment nor the comment of our other co-author has appeared on the newspaper’s website. Both of us have verified our emails, as the comment section requires us to do. (I’ll note that the comments section also requires a name to go along with the email.) We are both still waiting to see if and when our comments are posted.

Further update: as of 5 a.m. Pacific on 1/20/23, my comment is up, as is Veronica’s.

Posted on by Nancy Rapoport

Sarah Weddington, R.I.P.

When I saw the tweet about Sarah Weddington’s passing and read the Texas Tribune’s obituary, I thought back to the first time that I met her. She spoke at an event at the University of Nebraska, back when I was working there, and she told a classic story about how she learned to take some time for self-care (“put the oxygen mask on yourself first”). She and I started corresponding, and when I went to work at the University of Houston, I invited her to be a commencement speaker at graduation. I figured that our students would love to hear from a Texan who had argued her first Supreme Court case before she’d turned 30, who had served in the Texas Legislature and in the Carter White House, and who was a beloved teacher. Some of our students were, in fact, thrilled, but others were not, given her role in Roe v. Wade.

We had to plan for contingencies at that graduation: Would someone take a shot at her (or at me, for inviting her)? Would the protests be unruly or respectful? (The protests were respectful, with the protesting students wearing baby-feet pins on their gowns.) Sarah took it all in stride, having long become used to plainclothes protection, and — despite having been diagnosed with breast cancer shortly before she spoke at UH — she gave a touching speech that, as I recall, had nothing to do with Roe and everything to do with leadership and service. I was so happy that my parents and my spouse got to meet her that day.

We continued to stay in touch, with a few of us trying to find a home for her papers. Jeff and I toured the Women’s Museum at Fair Park (now closed) and saw the suit that she’d worn in her first Supreme Court argument. She continued to mentor people, and to speak, and to appear fearless. Appearing fearless is no easy trick, but brave people are brave not because they’re fearless but because they do what they need to do even when they’re terrified.

We’ve lost so many people in the last few years, and we lost two Texas giants this year: Sarah and Muffie Moroney. I just assume that they’re hanging out in Heaven with Ann Richards and Molly Ivins, and I miss them both. R.I.P.

Posted on by Nancy Rapoport

Score: Delta and our travel agency, infinity; Southwest, 0

So we were among the thousands of people stranded by Southwest last week, trying to make it to a long-planned milestone occasion. I awoke at 12:15am on Sunday morning to read a 11:30pm Saturday text from Southwest. That text said that our flight to Atlanta was canceled. Oh, the connecting flight after that was allegedly fine, but not the one that could get us to that connection.

Because I am one of those people who have had A-List Preferred status (along with a yearly Companion Pass, plus hundreds of thousands of points), I reached a Southwest agent who told me:

There were no flights to where we were going on Monday, no matter how we tried to route ourselves there.

There were no flights on Tuesday.

There was nothing that Southwest could do. Pretty much ever. No promises of a return flight on Saturday. No way to reroute us. Nothing.

I asked why. The agent didn’t know. He guessed “weather,” but since our destination had zero weather problems for any of the other airlines, that explanation didn’t make sense.

Who was available to help on Saturday night/Sunday morning? Our travel agent (Mary Ellen McDaniel of The Travel Authority), who had booked our milestone trip months earlier, and our Delta messaging agent (Loela Lou). Loela got us on flights on Delta (the last two seats, by the way–each way) so that we missed only one day of our trip, and the Delta experience on each leg was beyond pleasant. It was superb.

Southwest doesn’t have any arrangements with any other airline, so it couldn’t rebook us or any of the thousands upon thousands of people who, like us, had trusted Southwest and its touted customer service.

What did we get from Southwest? Not a $250 voucher, but a promise of an eventual $250 voucher. By our count, that only leaves us $3,500 short in terms of how we had to scramble to catch our flights a day later than we had planned.

I know that we’re lucky. We had saved enough to be able to afford to salvage our trip. But there are countless people whose plans were also ruined. Southwest needs to up its game significantly to regain customer loyalty. In the meantime? We “LUV” Delta these days.

Posted on by Nancy Rapoport

Here’s what I think we’re missing in terms of teaching law students how to communicate well.

I’ve written before about how we might train law students to defuse tense situations in order to improve our ability to hear each other. Last night, as I was listening to our school’s monthly Town Hall meeting, it occurred to me that we are quite good at getting students to express themselves clearly. What we’re not yet good at is helping them acquire the instinct to empathize before they communicate.

I heard some of them assume, without checking to see if their assumptions were correct, that our dean could make a decision about whether to have an in-person graduation ceremony without running through the hoops of the university’s central administration, the city, and the state, given our pandemic. (Deans are middle-management at universities, but for many law students, they’re the top of the pyramid.) And, in the middle of the meeting, I heard students talking about the stress of being distracted in Zoom-classes by the chat function or by too many emails burdening their inboxes.

These are real stresses, and our students are at their breaking point at this stage of the pandemic. What I would like to learn how to convey to them, though, is that everybody else on that call was at a breaking point, too. Just as students have caregiver responsibilities that keep them from being able to focus entirely on their studies, so do the faculty and staff members. They’re also stressed to the max, though they’re trying to mask their stress so that they can focus on the well-being of the students. I am at a loss as to how to convey to students that thinking in advance about how listeners might react to the way that they phrase their legitimate concerns will help them to communicate more effectively. Lawyers have to think empathetically when they negotiate and when they appear before adjudicators. “Know your judge” isn’t an empty mantra. But I have no idea how to convey to people who are in distress that they are also talking to people who are in distress, and I would love some suggestions. One of the comments last night was both hurtful and embarrassing to me personally, though I truly doubt that the anonymous student who made the comment intended that result. That’s the point: we’re encouraging students to tell us what they’re experiencing so that we can find ways to help them, but we have not yet found good ways to remind them that they are talking to people who are experiencing many of the same stressors that they are. Empathy might be innate, but perhaps it can be a learned skill, too. How do we help our students remember empathy?

Posted on by Nancy Rapoport

I’m so tired of snotty personal attacks in politics.

I get it.  Politics can be an ugly business.  And I wouldn’t want to be a politician these days.  Most of the time, I just ignore the vitriol on both sides of the aisle, because I have better things to do with my time than watch people call each other names.  Recently, though, a news story hit close to home because a politician attacked a friend of mine.

Having read this news story, which reported on Michelle Fiore’s comments about Roxann McCoy, all I can say is that the Roxann McCoy I know bears no resemblance to the Roxann McCoy that Councilwoman Fiore is impugning.  I’ve known Roxann for several years, and for as long as I’ve known her, I’ve been impressed by her integrity and her commitment to the public good.  She’s fought hard to protect people’s rights as the President of our local branch of the NAACP.   She’s put her own needs second, time and time again, in order to work countless hours—and serve on countless committees, and speak at public events (like this one, which is coming up on August 20 at The Mob Museum)—on behalf of our community.  I stand with Roxann.