A big company is a big company. Most large enterprises that generate billions of dollars each year engage in a fair amount of corporate misconduct. That could be protecting a senior executive who has a history of sexually harassing and even sexually assaulting subordinates. Or engaging in federal tax fraud pertaining to research and development expenses. Or bribing foreign governments. The largest law firms (BIGLAW as we call them) are just as big and corrupt as any other billion-dollar enterprise. But, for certain reasons, we have historically given BIGLAW a pass.
BIGLAW’s Historical Buffer & the Rise of Elite Litigation Boutiques
The first and most obvious reason is that many elite lawyers historically have eschewed pursuit of matters where BIGLAW is the actual target and defendant. Among elite practitioners, there is a sort of collegial detente. Those who would betray the brotherhood (i.e. sue a BIGLAW firm) are often viewed as pariahs. That is less about a code of honor and more about a code of covering one’s ass and fear of making the wrong enemies. BIGLAW is a major piece of the American power structure. BIGLAW has powerful friends in the judicial and political apparatus. And if you go directly at BIGLAW, they will fight back and attempt to burn you down.
As such, it is not surprising that BIGLAW firms have historically avoided being a direct target of litigation to a degree that is incommensurate with the relative size of their enterprise. This has been changing over the past twenty years and that change is presently accelerating. One factor driving that change is market dynamics. Consider the landscape of litigation and law firms in America since roughly 2000. I am not talking about personal injury lawyers, family lawyers, criminal defense lawyers, etc. I am talking about complex, high-stakes litigation. BIGLAW had a near stranglehold on that market until roughly 2000. My old boss David Boies was one of the first major players to break away and start an elite litigation boutique. Boies, Schiller & Flexner then grew into a litigation powerhouse in its own right and a BIGLAW firm (though small by BIGLAW standards). Since roughly 2000, we have witnessed the emergence of small but very sophisticated litigation shops. My own firm being one of them. I spun out of BSF and 7 years later was defending $25 million non-compete and trade secret cases. I compete with BIGLAW for business. And I’m not alone. Over the past 20 years, numerous elite litigation shops have spun out of BIGLAW. Over the past 10 years, the trend has continued and accelerated.
The result: We have elite litigation shops that do high-caliber work. In many instances, these shops are led by lawyers who are objectively superior to the vast majority of BIGLAW filler. And these lawyers do not have the same institutional constraints or allegiances. Some of these lawyers may still abide the notion that suing other law firms – especially BIGLAW – is taboo. But plenty of elite litigation shops clearly have no qualms about suing BIGLAW firms. My firm falls on that side of the line. We presently are suing DLA Piper, the 3rd largest law firm in the world, in Boston, Massachusetts state court in a case alleging workplace sexual harassment and assault. There are many other cases against BIGLAW right now where small but elite litigation shops are leading the charge. Another example is the recent $1.2 billion legal malpractice case against Holland & Knight. The plaintiff is represented by AXS Group, another small but elite litigation shop. Both of our firms are in Chambers & Partners.
This changes the landscape. Historically, it was hard to find sophisticated counsel that was willing to sue a BIGLAW firm in a jurisdiction where that BIGLAW firm was a dominant player. You cannot underestimate the sort of retribution and reprisal that BIGLAW can inflict. But here we are. Small but elite litigation shops are willing to go directly at BIGLAW in a way that was rarely seen in the past. Now, against that backdrop, our Generation-Z BIGLAW associates enter the fray.
Corruption at Scale: BIGLAW vs. Industry at Large
BIGLAW is just as corrupt (if not more corrupt) than any other large, corporate enterprise. The argument for BIGLAW being even more corrupt than the typical large, corporate enterprise is particularly compelling. There are two key reasons here. First is the insulation discussed above (i.e. historical lack of sophisticated law firms who will aggressively pursue claims against BIGLAW). That sort of insulation breeds hubris. Second, the typical personality traits of BIGLAW leaders map up nicely with sociopathic and villainous tendencies. Just consider the industry. Consider who rises to the top of BIGLAW firms. The people calling the shots in BIGLAW almost invariably have the following cluster of traits (and more): greed, highly motivated by money, Machiavellian, good at politics, well-connected, morally flexible, massive ego. These same personalities dominate the highest ranks of business and industry. But the leaders in BIGLAW have one critical advantage: They are also lawyers. They know the law. For a corrupt actor, deep knowledge of the law is a tremendous advantage. Given these considerations, we should expect that BIGLAW is probably more corrupt than other enterprises of similar size. They are no longer insulated given the emergence of small but elite litigation shops that will sue them. Now, against this backdrop enters the Generation Z BIGLAW associate whistleblower.
The Gen-Z BIGLAW Associate Whistleblowers: The Next Big Thing
The oldest members of Generation Z are now in their late 20’s. So a substantial segment of BIGLAW associates are now members of the Generation-Z cohort. Here’s why that matters: Your first year in BIGLAW, you probably have no understanding about the business of law. Sure, you might be doing good work and contributing in substantive, meaningful ways. But you probably are not aware of the bigger picture, billable hours, how much work is really being done on cases, and what is reasonable. By the time you are a 3rd or 4th year associate, it is a much different ballgame. You know all about billable hours. You know how much work is really being done on a case. You have a general sense of what is necessary or unnecessary. You have a general sense of what is reasonable. You might even recognize what looks like malpractice or a breach of fiduciary duty.
This is not just JP (me) talking in hypothetical terms. I have seen this myself and heard it from my own whistleblower clients. A few years ago, I was an expert witness in a $15 million legal malpractice case against a BIGLAW firm. As part of that case, I was deep in the weeds on internal BIGLAW communications. There was a mid-level associate internally pointing out huge mistakes his firm had made, risks that had not been properly considered, things that the client should have known about. The point: Gen-Z’s entrance into the arena as BIGLAW mid-level associates is hugely consequential. Because more than prior generations, Gen-Z will not tolerate the typical corporate or BIGLAW shenanigans. Prior generations had some mixture of the following: (a) absolute corporate and institutional trust and loyalty (this is the boomer mentality), (b) a sense that there may be some issues but the issues are not so bad as to outweigh the money, and/or (c) no matter what, a willingness to play the game. Gen-Z has none of these traits. Gen-Z places virtually zero trust in large companies or institutions. Gen-Z will call out all the issues, wrongdoing, shenanigans. Gen-Z will not suck it up just to get paid. Likewise, Gen-Z has no fear of being an outcast in the industry, changing firms, or walking away from BIGLAW entirely. They will stand on principle.
In other words: If you are a BIGLAW firm and you say you have ethics and scruples and do the right thing, then you’d better fucking abide that. Or, Gen-Z will have beef with you and they will seek to vindicate their rights. Thousands of these people are now mid-level associates. That means they are the main drivers of the actual legal work being done. They know the landscape. They know about the money. They know what’s right and what’s wrong. So, as a product of this confluence of factors, we are about to see a wave of BIGLAW whistleblower and related lawsuits like we have never seen before.
I use whistleblower as shorthand for an entire category of claims. Over the next few years, we will see a wave of Gen-Z BIGLAW associates pursuing claims based on the following fact patterns:
- A female associate reports sexual harassment or assault by a powerful partner, and the firm protects the rainmaker and retaliates.
- A black associate challenges discriminatory staffing, evaluation, compensation, or promotion practices and suddenly develops manufactured “performance issues.”
- An associate discovers that the firm concealed major mistakes from a client and is terminated after insisting the client be told.
- A lawyer objects to inflated billing, unnecessary work, or misleading invoices and is pushed out.
- An associate identifies an undisclosed conflict, discovery misconduct, or false representations to a court or client and refuses to participate.
- A partner or senior lawyer exposes manipulation of origination credit, compensation, or partnership decisions that conceals unlawful discrimination.
Unlike prior generations that viewed a BIGLAW job as a golden ticket and worried about remaining in good standing in the eyes of the BIGLAW industry at large, my impression is that many Gen-Z BIGLAW associates do not give a single fuck. These younger lawyers place more value on morality, ethics, and living a life that truly reflects their core values and beliefs. In other words: They will go to war on principle. And although BIGLAW may succeed in keeping a number of these cases quiet via secret arbitrations, other cases will make it to court.
Whether a particular case goes to arbitration or court, the biggest strategic point here is as follows: When BIGLAW is a defendant, they typically react as one would expect: Smug. Arrogant. Offended at the mere suggestion that they could do anything wrong. Willing to destroy anyone who would take a stand against them. Given this landscape, Gen-Z whistleblowers should remember the old adage: If you come at the king you best not miss. In this context, that means locking down your evidence and lining up witnesses.
Remember: A strong case becomes infinitely stronger when there are multiple plaintiffs or multiple corroborating witnesses. Given the dynamics here, that is (a) critically important and (b) a likely outcome. I expect to see numerous cases involving multiple Gen-Z BIGLAW whistleblowers banding together to fight against misconduct within a particular BIGLAW firm. I already have one of these cases in the pipeline: 3 Gen-Z BIGLAW associates, all banding together, with overlapping claims against the same firm. I expect to see many more.
Jonathan Pollard is the founder of Pollard PLLC, a high-stakes litigation firm based in Fort Lauderdale, Florida. Pollard has repeatedly been ranked in Super Lawyers and Chambers & Partners. The Firm represents clients nationwide. Pollard and his work have appeared in or on The New York Times, Law360, Bloomberg, The Guardian, NPR, PBS NewsHour, Above the Law, and more. The firm routinely pursues discrimination, sexual harassment, sexual assault, and whistleblower retaliation cases against the biggest companies and law firms in the world. The firm can be reached at info@pollardllc.com or 954-332-2380.