My Problems with O'Melveny & Myers

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Are the above acts unethical?

Yes, all are unethical
16
25%
Yes, some are unethical
22
35%
No, none of them are unethical
25
40%
 
Total votes: 63

BloggerAMG

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My Problems with O'Melveny & Myers

Postby BloggerAMG » Mon Jan 20, 2020 2:01 pm

Hello,

Can I please take no more than two minutes of your time to do a survey of ethical norms within the profession? Over the past three years, I've been blogging about ethical issues I saw at O'Melveny & Myers. What's interesting about this is that although I've received support outside of the law, I haven't received nearly as much support within the profession -- leading me to wonder if the profession's values are different from the rest of the population, i.e. whether lawyers are OK with doing things that others find objectionable.

I thought I'd address this issue with a quick survey among a forum of lawyers, and this forum is a good place to do that. Below you'll see a summary of my blog (it's just me cutting and pasting the first post in the blog.) Would you mind reading this list and, completely anonymously, voting on whether you think these acts are ethical? I can't link the actual blog here, per forum rules, but if you want more info on any item, you can easily find it by searching for the sentence on Google.

Thanks for your time.

* * *

Introduction and summary

Thank you for visiting this site. I am a former attorney who used to work at O'Melveny & Myers. I was so shocked by what I saw there that I took on the role of an amateur reporter and started this blog. Below is a summary of a few posts. I hope you find them informative.

1. According to the New York Times, O'Melveny used violent imagery to threaten a sexual abuse victim into silence, leading to an additional decade of sexual abuse by the person who assaulted her. (Link). The attorney who reportedly threatened the young woman is the Chair of the firm's Trial Practice Committee.

2. The firm has a history of conducting reportedly sham "independent investigations," in exchange for money. (Links one, two, and three). See particularly the second link, a story in Corporate Counsel accusing O'Melveny partner Adam Karr of conducting a sham investigation of sexual abuse at Lions Gate. To reveal this information, the victim had to break her confidentiality agreement and return over a million dollars. But she did so to protect others, meaning she has the credibility of a saint. In the first link, you'll find a story about an O'Melveny alumnus who was arrested by the FBI while trying to negotiate an independent investigation retainer.

3. The firm was at the forefront of the document used to silence victims -- the mandatory arbitration and nondisclosure agreement. Although three federal courts told O'Melveny that this document was "unconscionable" (case one, two, three) -- O’Melveny continued to force its employees to sign it until 2018, when law students pressured law firms to abandon this practice.

4. The firm has a disconcertingly money-obsessed culture, which they called "eat what you kill." For example, query whether they needlessly dragged out the misery of an alleged rape victim to maximize partner profits, and then bragged about the money they made off of her in a press release (links one and two). Or query whether they were the only defense firm to drag out an opioid crisis case, likely damaging their client's reputation and possibly leading to avoidable deaths -- to boost partner earnings (links one, two and three).

5. O'Melveny has, as a practice group leader, a person who reportedly lied to a federal court. Once caught in that lie by the discovery of documents, he gave a radio interview criticizing The Geneva Convention. (Link). This person manages the firm's Financial Services Practice Group.

6. The firm retaliates against employees who complain about problematic practices. (Link).

7. O'Melveny contrives claims to intimidate people. For example, after I published this blog, they accused me of the federal crime of stealing confidential information – without any digital evidence that I even accessed the data they accused me of taking. (Link). When they realized that their baseless accusation wasn't going to scare me, they threatened me with a defamation lawsuit. But when I asked them to identify a specific defamatory statement, so that I could retract it, they refused to do so. (Link).

8. The firm consistently grades themselves at the top-end, usually the top three, in Vault's self-graded rankings. But with some of the rankings, you may be able to catch them in the act. (Links one, two and three.) For example, they have repeatedly graded themselves as the number one firm in the world for hours. But if you gathered data on hours for all firms, you may be able to prove that they are giving themselves a higher ranking than they deserve. In fact, in one of the years that O'Melveny graded itself as the best firm for hours, two of Vault's six take-aways for O'Melveny criticized its "unpredictab[le]" and "long hours." If you did prove this, it wouldn't be as serious as the other items in the blog, but it may reflect a fundamentally dishonest culture.

9. O'Melveny tries to use journalists to advertise the firm. Here is O'Melveny's manager of public relations explaining how to do this on the show, "Law firm marketing catalyst." (Link). But this doesn't always work. For example, the firm was lambasted in the press for trying to remove truthful information from Wikipedia. (Link).

If you think this blog is unusual, please note that I'm not the first person to do this. The late Judge Stephen Reinhardt expressed his public disgust with things he saw at O'Melveny over thirty years ago. (Link). There's more about this firm that I haven't said, because I do not have hard evidence and don't want to be caught in a "he said, she said" defamation case (see #7 above). I'm restricted to blogging only about things that made it into the news, which may be the tip of the iceberg. I hope this information helps you.

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nealric

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Re: My Problems with O'Melveny & Myers

Postby nealric » Mon Jan 20, 2020 2:26 pm

Mod Note: I've edited the title to reflect the content of the post so that users are not mislead into clicking on a thread they are otherwise not interested in. OP, I'm sorry you had a bad experience with the firm. However, your post did not appear to be a good faith attempt at a poll on ethics but rather a vehicle to express your issues with the firm.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Mon Jan 20, 2020 2:34 pm

nealric wrote:Mod Note: I've edited the title to reflect the content of the post so that users are not mislead into clicking on a thread they are otherwise not interested in. OP, I'm sorry you had a bad experience with the firm. However, your post did not appear to be a good faith attempt at a poll on ethics but rather a vehicle to express your issues with the firm.


Oh no it was definitely mean to be a poll among the legal community but yes, obviously, I am also expressing my issues with the firm so your statement is correct as well. Any way that's fine. This isn't a big deal, just an idea I had this morning. I've been wondering where to take the blog and curious if it should evolve from a critique of one firm into a critique of the profession as a whole.

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Re: My Problems with O'Melveny & Myers

Postby FND » Tue Jan 21, 2020 12:39 am

there's a lot to unpack here. gonna ignore the preamble and try to address the issues.
Note that there are no links for me to click, so I'm responding to you in a vacuum.
BloggerAMG wrote:Can I please take no more than two minutes of your time

It's not possible to read everything in under two minutes
BloggerAMG wrote:According to the New York Times, O'Melveny used violent imagery to threaten a sexual abuse victim into silence
threatening a potential witness is both unethical and illegal. But without seeing the specific communique I can't comment on whether it's pushing the envelope or over the line.
BloggerAMG wrote:The firm has a history of conducting reportedly sham "independent investigations," in exchange for money. (Links one, two, and three). See particularly the second link, a story in Corporate Counsel accusing O'Melveny partner Adam Karr of conducting a sham investigation of sexual abuse at Lions Gate.

Considering how easy it is to rack up a huge bill conducting an independent investigation, it's highly unlikely that the investigation was a sham. On the other hand, it's entirely possible to present the findings of the investigation in a better or worse light, depending on the intent.
BloggerAMG wrote:To reveal this information, the victim had to break her confidentiality agreement and return over a million dollars. But she did so to protect others, meaning she has the credibility of a saint.
Nobody has perfect credibility. But that's beside the point. She could be sincere in her belief, and still be wrong. Just because she doesn't like the outcome of the investigation, doesn't make it a sham. Likewise, an investigation can't guarantee to uncover every bit of wrongdoing.
BloggerAMG wrote:In the first link, you'll find a story about an O'Melveny alumnus who was arrested by the FBI while trying to negotiate an independent investigation retainer.
could be one bad apple as opposed to a bad culture. Also, was the alumnus part of OMM at the time of arrest, or somewhere else? Was the alumnus convicted?
BloggerAMG wrote:The firm was at the forefront of the document used to silence victims -- the mandatory arbitration and nondisclosure agreement. Although three federal courts told O'Melveny that this document was "unconscionable" (case one, two, three) -- O’Melveny continued to force its employees to sign it until 2018, when law students pressured law firms to abandon this practice.
Mandatory arbitration and nondisclosure clauses are something every large company has (or should have). The use thereof means the firm isn't run by idiots. Just about every American has probably signed a dozen arbitration agreements without even realizing it - just about every bank account, credit card, email, streaming service, and social media requires a mandatory arbitration agreement, as do more than half of all employment agreements.
Whether or not these would stand up to court scrutiny is a different matter.
BloggerAMG wrote:The firm has a disconcertingly money-obsessed culture
Welcome to America
BloggerAMG wrote: "eat what you kill."
Eat What You Kill is actually a term-of-art used to describe a particular profit-splitting arrangement / compensation structure used by law firms. It is by no means the only type of arrangement, but it is not uncommon at all. What it means is that partners only receive a share of the profit related to work they bring in and perform, but do not share in the profit of a matter they have nothing to do with. It avoids the free-rider problem and incentivizes partners to generate business and work hard.
BloggerAMG wrote:For example, query whether they needlessly dragged out the misery of an alleged rape victim to maximize partner profits
was it necessarily to maximize profits, or to maximize the chance of winning? For better or worse, getting a rape case to drag on and on is a good strategy for the defense.
BloggerAMG wrote:bragged about the money they made off of her in a press release (links one and two).
again, don't have access to your links. But it's not uncommon for firms to brag about making money.
BloggerAMG wrote:Or query whether they were the only defense firm to drag out an opioid crisis case,
It was probably the client's decision to drag it out - they have the final say.
BloggerAMG wrote: likely damaging their client's reputation
it's very rare that a law firm can do anything by itself that would damage a client's reputation
BloggerAMG wrote: and possibly leading to avoidable deaths
how is that the law firm's fault?
BloggerAMG wrote: O'Melveny has, as a practice group leader, a person who reportedly lied to a federal court.
reportedly? that person either did or did not lie to federal court. If caught in a lie, the person would have been sanctioned.
BloggerAMG wrote:he gave a radio interview criticizing The Geneva Convention.
everyone's allowed to have an opinion
BloggerAMG wrote:This person manages the firm's Financial Services Practice Group.
your point being?
BloggerAMG wrote:The firm retaliates against employees who complain about problematic practices. (Link).
retaliation tends to go hand-in-hand with problematic practices. (again no link) assuming this is true, it makes the firm a shitty employer. That's not necessarily a violation of the rules of professional conduct.
BloggerAMG wrote:O'Melveny contrives claims to intimidate people. For example, after I published this blog, they accused me of the federal crime of stealing confidential information – without any digital evidence that I even accessed the data they accused me of taking. (Link). When they realized that their baseless accusation wasn't going to scare me, they threatened me with a defamation lawsuit. But when I asked them to identify a specific defamatory statement, so that I could retract it, they refused to do so. (Link).
can't blame them for trying. Did they accuse you publicly, or was it a cease & desist type of letter? If the former, you can always sue for defamation/libel. If the latter, it's just aggressive tactics
BloggerAMG wrote: The firm consistently grades themselves at the top-end, usually the top three, in Vault's self-graded rankings. But with some of the rankings, you may be able to catch them in the act. (Links one, two and three.) For example, they have repeatedly graded themselves as the number one firm in the world for hours. But if you gathered data on hours for all firms, you may be able to prove that they are giving themselves a higher ranking than they deserve. In fact, in one of the years that O'Melveny graded itself as the best firm for hours, two of Vault's six take-aways for O'Melveny criticized its "unpredictab[le]" and "long hours." If you did prove this, it wouldn't be as serious as the other items in the blog, but it may reflect a fundamentally dishonest culture.
gee. people have an over-inflated self-image. Ever looked at a profile on dating website/app?
BloggerAMG wrote:O'Melveny tries to use journalists to advertise the firm. Here is O'Melveny's manager of public relations explaining how to do this on the show, "Law firm marketing catalyst." (Link).
Shocking! a company trying to get good PR? unheard of! :roll:
BloggerAMG wrote:the firm was lambasted in the press for trying to remove truthful information from Wikipedia.
WOW. I bet they're the only company/person/firm in the entire world to do this! :roll:
BloggerAMG wrote:I hope this information helps you.
I thought you were asking for feedback? Looks like you're really just trying to rant. I wonder why you have an axe to grind against OMM?

Honestly, most of the above is just standard operating procedure for EVERY company in America. And the few things that aren't are fairly innocuous or have a reasonable explanation. Just about every corporation or organization has issues, and if you dig hard, you can find problems everywhere. I have no idea if OMM is worse than average, but it's also a firm with 740 people in 15 offices (thanks wikipedia), and I'm not gonna assume they're all scumbags just because of one or two potentially problematic issues


Note: I did find your blog, and looked at a few of your "articles". Dude, you might need to switch your medication.

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Re: My Problems with O'Melveny & Myers

Postby dabigchina » Tue Jan 21, 2020 2:19 am

Mods, can we do something about this person constantly spamming stuff about their blog. I don't have strong feelings about OMM and im sure its not very pleasant working there (like all biglaw), but I don't feel comfortable with the constant self promotion.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Tue Jan 21, 2020 2:52 am

On the topic of self-promotion, I want to be clear that I have never made a penny on the blog, and never will. It will never have any advertisements, or any revenue-generating mechanism. I published it for altruistic and moral reasons and, indeed, differing views of these concepts is the topic of the poll. I appreciate the poll responses. Very informative.

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Re: My Problems with O'Melveny & Myers

Postby cavalier1138 » Tue Jan 21, 2020 8:23 am

dabigchina wrote:Mods, can we do something about this person constantly spamming stuff about their blog. I don't have strong feelings about OMM and im sure its not very pleasant working there (like all biglaw), but I don't feel comfortable with the constant self promotion.


Just to be clear on this point: The OP did discuss posting this with the moderation team after an initial version of the post (that linked to the blog) was deleted. As long as the post isn't actually directing people to go to a site, we're generally going to allow it.

I'm not saying it's going to generate fabulous discussion, but there are plenty of other "[Insert Firm Here] is the Worst" topics in this forum.

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Re: My Problems with O'Melveny & Myers

Postby nixy » Tue Jan 21, 2020 9:13 am

I don't have firsthand experience with any of these kinds of situations, but they sound very much like what any law firm would do, and a function of the adversarial system. Like the dragging out of the rape case - I get why you didn't want to do that (and I probably wouldn't want to do that), but I agree that it was probably a reasonable strategy intended to protect the client (who probably had no interest in the quick resolution you suggested). "Threatening" the plaintiff by telling her that they're going to drag her name through the mud is unpleasant, but also probably an accurate description of the tactics that they planned to use, which are legal. Ditto the opioid crisis case. The firm is hired to represent the client, not some abstract sense of justice. Ideally, those two things align somewhat, but they often don't. If the client's goal is to avoid liability on anything to do with opioids, the case may drag on and more people may die. The firm's job isn't to address the opioid crisis, it's to represent the client. Obviously there are still limits to what a firm should/can do to represent a client, but it sounds more like you have issues with the very role than that OMM was responding differently from any other big law firm. You can certainly argue about whether what they did is immoral/unjust, but I doubt it violates legal ethics.

(The ranking/self-promotion stuff doesn't even register along with the other behavior, though - of course law firms self-promote and brag about their profits. They're for-profit entities and marketing is huge. Money = success = more clients.)

OMM may well be on the more aggressive side - I don't know enough to say. But I had a judge say once that if you draw a line, there's nothing stopping parties from going right up to that line. It sounds like that's the case here. Heck, a lot of what you describe would apply to criminal defense attorneys, too - it might well be a legit defense tactic, in a given criminal case, to drag the victim's name through the mud. You'd be ineffective in defending your client not to explore such a strategy if it suited the case.

It also sounds like you were just not suited to being a lawyer at such a firm (not based on intelligence, just temperament). That's fine. Lots of lawyers don't want to work in those settings, and the difference between legal ethics and morality is probably one of the reasons why non-lawyers so frequently hate lawyers.

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Re: My Problems with O'Melveny & Myers

Postby PeanutsNJam » Wed Jan 22, 2020 2:09 pm

BloggerAMG wrote:On the topic of self-promotion, I want to be clear that I have never made a penny on the blog, and never will. It will never have any advertisements, or any revenue-generating mechanism. I published it for altruistic and moral reasons and, indeed, differing views of these concepts is the topic of the poll. I appreciate the poll responses. Very informative.


You're getting more tempered responses from the legal profession than you otherwise did from non-lawyers not necessarily because lawyers have a higher tolerance for unethical behavior, as you seem to believe, but rather lawyers recognize that, in making your argument that OMM is systemically unethical, you are only highlighting--and characterizing--certain facts in order to support your position.

We know this because we do this all the time in legal writing.

Asking us to vote on whether OMM's acts are unethical based on your post is like asking a judge to rule on a motion after only reading an opening brief or a jury to vote after only hearing the plaintiff's opening statement.

If I accept everything you write as true and accurate, sure, OMM seems uniquely unethical and all those acts are unethical.

That said, people like you who set up seemingly objective polls for "informative purposes" in a way that will prove you right no matter what (either we vote unethical, proving you right about OMM, or vote otherwise, proving you right about "ethical norms within the profession") irritate me to no end. This is trolling to a T.
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nealric

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Re: My Problems with O'Melveny & Myers

Postby nealric » Wed Jan 22, 2020 2:26 pm

I don't think OP is trolling (or else we wouldn't have allowed it). Trolling is when you post something to get a reaction or otherwise anger someone. In this case, OP just has an ax to grind.

I do think the "poll" is what is known in political circles as a "push poll." The purpose is not to find out what people think, but to guide people to thinking something.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 3:56 pm

In terms of where I got these items and whether the list is complete -- I got them from the press or other public documents. For the reasons stated in the OP, I can only repeat what was in the press, and not everything I saw, because I don't want to risk getting sued in a "he said, she said" defamation case. If you're saying that I should have also included situations where O'Melveny was ethical ... I think a blog about ethics should only include problematic situations otherwise it's TMI.

On whether this is an illegitimate poll because it only includes things from my blog, that were cherry-picked. Yes it's a poll on this small subset of acts, that are from my blog, but I think it's a legitimate poll nonetheless. The reason it only includes these items, is because that's all I wanted to ask you all about. I simply wanted to survey lawyers to see what they think of these things for the reasons stated in the OP, and this forum is the only place I know to do that. I appreciate the honest responses which are completely anonymous. Also appreciate the longer written answers, as well as your reply. Thank you for taking the time.

Ultimately, I do wish law school and the profession would spend more time discussing these aspects of the law. As you can see there are serious differences among lawyers regarding what is and isn't ethical. After seeing what the law was really like, I ran from it (obviously you don't write a blog like mine expecting to be hired by a firm ever again), and will certainly never return to it. No one grows up wanting to do these things for money. Even if you somehow work in a decent part of the law, you'll still be dealing with people like this every day. But I do wish I had known what the law was really like earlier!

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Re: My Problems with O'Melveny & Myers

Postby PeanutsNJam » Wed Jan 22, 2020 4:33 pm

BloggerAMG wrote:In terms of where I got these items and whether the list is complete -- I got them from the press or other public documents. For the reasons stated in the OP, I can only repeat what was in the press, and not everything I saw, because I don't want to risk getting sued in a "he said, she said" defamation case. If you're saying that I should have also included situations where O'Melveny was ethical ... I think a blog about ethics should only include problematic situations otherwise it's TMI.

On whether this is an illegitimate poll because it only includes things from my blog, that were cherry-picked. Yes it's a poll on this small subset of acts, that are from my blog, but I think it's a legitimate poll nonetheless. The reason it only includes these items, is because that's all I wanted to ask you all about. I simply wanted to survey lawyers to see what they think of these things for the reasons stated in the OP, and this forum is the only place I know to do that. I appreciate the honest responses which are completely anonymous. Also appreciate the longer written answers, as well as your reply. Thank you for taking the time.

Ultimately, I do wish law school and the profession would spend more time discussing these aspects of the law. As you can see there are serious differences among lawyers regarding what is and isn't ethical. After seeing what the law was really like, I ran from it (obviously you don't write a blog like mine expecting to be hired by a firm ever again), and will certainly never return to it. No one grows up wanting to do these things for money. Even if you somehow work in a decent part of the law, you'll still be dealing with people like this every day. But I do wish I had known what the law was really like earlier!


Right, so I decided to look through your blog and actually see what you're linking. Aside from the obnoxious cross-linking to your own other blog posts as support for a statement, are you really calling things like the below quote an objective recitation of facts?

For example, query whether they needlessly dragged out the misery of an alleged rape victim to maximize partner profits, and then bragged about the money they made off of her in a press release (links one and two).


I looked up that case. OMM represented Harvard in a lawsuit brought by a sexual assault victim, who was suing the school not because a university employee sexually assaulted her (which is what your post made it sound like), but because the school's response was lackluster. You cite to 150 court filings, as if that's a lot, but that number is actually a relatively low amount of filings for a case that gets to summary judgment. The judge then rules for Harvard on summary judgment, which meant that Harvard's case was meritorious and, at least under the law, Harvard was not liable for whatever the sexual assault victim was suing them for. If motion practice is "needlessly dragg[ing] out the misery of [the defendant]", what does an ethical attorney for Harvard do? File no motions, just conduct discovery, and then go to trial? Would an ethical attorney also forego cross examination of the plaintiff's witnesses?

I'm not saying you should talk about OMM being ethical. I have no love for OMM and it does sound from their press release that the partnership could not care less about sexual assault victims (judging from their callous use of "#MeToo era") and I wouldn't be surprised if OMM management is uniquely dismissive of sexual assault victims. I'm just saying your blog posting and writing is more biased and twisted than a Donald Trump tweet. You are definitely not "only repeat[ing] what was said in the press."

ETA - Oddly enough, I have been opposite OMM on a case, and in their briefing, they cite to statements they made in previous briefing as support (not for the fact they previously said something, but for the assertion itself). I wonder if this is something OMM teaches its associates?
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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 4:41 pm

This excerpt from one of the two posts I wrote about that case summarizes how I would have handled it, as well as my thoughts on the monetary incentive to drag cases out for billable hours and margin, as well as the games defense lawyers play to achieve that goal. I don't mean to just restate what I said earlier, but it summarizes it perfectly so I hope it's OK that I'm just cutting and pasting.

* * *

... had I worked on the case, I would have advised Harvard that she probably did not come to their school to contrive trauma and sue them. Something probably happened to throw her life off its normal path. I would have recommended some sort of quick solution, with the goal of ensuring that nothing is added to her haunting memories. In my opinion, that would have been best for Harvard and for the young woman.

The problem with such advice, is that lawyers can’t make money via quick resolutions. I've heard of lawyers using rhetoric such as, "this is an important question" or "you have to teach the other side a lesson" -- to convince their client to extensively litigate and pay more, in legal fees, than the other side requested in damages -- only to ultimately lose what was a bad case from the start.

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Re: My Problems with O'Melveny & Myers

Postby PeanutsNJam » Wed Jan 22, 2020 4:45 pm

BloggerAMG wrote:This excerpt from one of the two posts I wrote about that case summarizes how I would have handled it, as well as my thoughts on the monetary incentive to drag cases out for billable hours and margin, as well as the games defense lawyers play to achieve that goal. I don't mean to just restate what I said earlier, but it summarizes it perfectly so I hope it's OK that I'm just cutting and pasting.

* * *

... had I worked on the case, I would have advised Harvard that she probably did not come to their school to contrive trauma and sue them. Something probably happened to throw her life off its normal path. I would have recommended some sort of quick solution, with the goal of ensuring that nothing is added to her haunting memories. In my opinion, that would have been best for Harvard and for the young woman.

The problem with such advice, is that lawyers can’t make money via quick resolutions. I've heard of lawyers using rhetoric such as, "this is an important question" or "you have to teach the other side a lesson" -- to convince their client to extensively litigate and pay more, in legal fees, than the other side requested in damages -- only to ultimately lose what was a bad case from the start.


Advising your client to settle when the case is winnable on summary judgment for the benefit of the opposing party is actually, by definition, unethical.
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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 4:50 pm

Anonymous User wrote:
BloggerAMG wrote:This excerpt from one of the two posts I wrote about that case summarizes how I would have handled it, as well as my thoughts on the monetary incentive to drag cases out for billable hours and margin, as well as the games defense lawyers play to achieve that goal. I don't mean to just restate what I said earlier, but it summarizes it perfectly so I hope it's OK that I'm just cutting and pasting.

* * *

... had I worked on the case, I would have advised Harvard that she probably did not come to their school to contrive trauma and sue them. Something probably happened to throw her life off its normal path. I would have recommended some sort of quick solution, with the goal of ensuring that nothing is added to her haunting memories. In my opinion, that would have been best for Harvard and for the young woman.

The problem with such advice, is that lawyers can’t make money via quick resolutions. I've heard of lawyers using rhetoric such as, "this is an important question" or "you have to teach the other side a lesson" -- to convince their client to extensively litigate and pay more, in legal fees, than the other side requested in damages -- only to ultimately lose what was a bad case from the start.


Advising your client to settle when the case is winnable on summary judgment for the benefit of the opposing party is actually, by definition, unethical.


Would you be open to putting your name behind that statement?

I ask because I once got into an huge 20 post back and forth with someone on another forum, about my blog. They claimed to be an experienced attorney with a storied career. I was so troubled by some of the things they wrote, wondering how a lawyer could think that way, that I used my research skills to analyze I think like eight years of their posts. I eventually found the posts were they poured their heart out, admitting that they were LARPing. Apparently, they had grown up with a drug addiction and repeated overdoses, had been diagnosed with serious debilitating anxiety, and had been rejected from every job before applying to law school. They had then failed the bar but were trying to pass it. I saved those posts as a reminder to not debate the anonymous.

So, if you're willing to put your name behind that statement, which is wrong, I'll be happy to engage further. If not, wish you well and thanks for your contributions.

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PeanutsNJam

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Re: My Problems with O'Melveny & Myers

Postby PeanutsNJam » Wed Jan 22, 2020 4:55 pm

BloggerAMG wrote:
Anonymous User wrote:
BloggerAMG wrote:This excerpt from one of the two posts I wrote about that case summarizes how I would have handled it, as well as my thoughts on the monetary incentive to drag cases out for billable hours and margin, as well as the games defense lawyers play to achieve that goal. I don't mean to just restate what I said earlier, but it summarizes it perfectly so I hope it's OK that I'm just cutting and pasting.

* * *

... had I worked on the case, I would have advised Harvard that she probably did not come to their school to contrive trauma and sue them. Something probably happened to throw her life off its normal path. I would have recommended some sort of quick solution, with the goal of ensuring that nothing is added to her haunting memories. In my opinion, that would have been best for Harvard and for the young woman.

The problem with such advice, is that lawyers can’t make money via quick resolutions. I've heard of lawyers using rhetoric such as, "this is an important question" or "you have to teach the other side a lesson" -- to convince their client to extensively litigate and pay more, in legal fees, than the other side requested in damages -- only to ultimately lose what was a bad case from the start.


Advising your client to settle when the case is winnable on summary judgment for the benefit of the opposing party is actually, by definition, unethical.


Would you be open to putting your name behind that statement?

I ask because I once got into an huge 20 post back and forth with someone on another forum, about my blog. They claimed to be an experienced attorney with a storied career. I was so troubled by some of the things they wrote, wondering how a lawyer could think that way, that I used my research skills to analyze I think like eight years of their posts. I eventually found the posts were they poured their heart out, admitting that they were LARPing. Apparently, they had grown up with a drug addiction and repeated overdoses, had been diagnosed with serious debilitating anxiety, and had been rejected from every job before applying to law school. They had then failed the bar but were trying to pass it. I saved those posts as a reminder to not debate the anonymous.

So, if you're willing to put your name behind that statement, which is wrong, I'll be happy to engage further. If not, wish you well and thanks for your contributions.


No, but specifically because you admit to unhinged searching through a user's post history. I'm happy for a mod to confirm for you that I am a practicing attorney who is not LARPing, does not have a drug addiction, and have not been diagnosed with serious debilitating anxiety, if that really matters to you.

Please enlighten me as to how an attorney acting in the interest of the opposing party is ethical in light of Rule 1.7 of the Model Rules of Professional Conduct.
Last edited by QContinuum on Thu Jan 23, 2020 6:15 pm, edited 1 time in total.
Reason: Outed for anon abuse.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 5:06 pm

Anonymous User wrote:No, but specifically because you admit to unhinged searching through a user's post history. I'm happy for a mod to confirm for you that I am a practicing attorney who is not LARPing, does not have a drug addiction, and have not been diagnosed with serious debilitating anxiety, if that really matters to you.

Please enlighten me as to how an attorney acting in the interest of the opposing party is ethical in light of Rule 1.7 of the Model Rules of Professional Conduct.


Oh no, that person said much more shocking things than what you wrote and, yes, still having a conscience -- I was troubled enough by what they wrote to take half an hour to learn about them. And I'm glad I did, because in light of his true identity, it made sense that he thought and wrote as he did. He had grown up in a horror show and hadn't been fortunate enough to fully develop. Hopefully he will in the future.

Any way, I'd be happy to explain it to you, giving numerous examples of situations where settlements are better for the client, not only in terms of their finances but also their reputation and the harm to others -- even if they do not make as much money for the defense lawyers -- but again I do not debate the anonymous.

Edit: Whoops this is bloggeramg I accidentally clicked the anonymous reply.
Last edited by QContinuum on Thu Jan 23, 2020 6:17 pm, edited 1 time in total.
Reason: Deanoned at poster's request.

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nealric

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Re: My Problems with O'Melveny & Myers

Postby nealric » Wed Jan 22, 2020 5:34 pm

Anon is a frequent poster. While I haven't seen their bar card, it's unlikely they are LARPing given their posting history.

But Anon really shouldn't be commenting as such. The anon feature exists for posting sensitive or personal details relating to employment, not because you don't want your usual poster name associated with a thread. Not doing a summary outing due to history, but we do out immediately if anon is badly abused (especially if personal attacks are involved).

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Re: My Problems with O'Melveny & Myers

Postby nixy » Wed Jan 22, 2020 5:44 pm

BloggerAMG wrote:This excerpt from one of the two posts I wrote about that case summarizes how I would have handled it, as well as my thoughts on the monetary incentive to drag cases out for billable hours and margin, as well as the games defense lawyers play to achieve that goal. I don't mean to just restate what I said earlier, but it summarizes it perfectly so I hope it's OK that I'm just cutting and pasting.

* * *

... had I worked on the case, I would have advised Harvard that she probably did not come to their school to contrive trauma and sue them. Something probably happened to throw her life off its normal path. I would have recommended some sort of quick solution, with the goal of ensuring that nothing is added to her haunting memories. In my opinion, that would have been best for Harvard and for the young woman.

The problem with such advice, is that lawyers can’t make money via quick resolutions. I've heard of lawyers using rhetoric such as, "this is an important question" or "you have to teach the other side a lesson" -- to convince their client to extensively litigate and pay more, in legal fees, than the other side requested in damages -- only to ultimately lose what was a bad case from the start.

The problem is that I highly doubt that Harvard would agree that your solution was in its best interests. After all, they won on summary judgment, and a ruling that they had been negligent in handling this case would set bad precedent (for them) and open the door to other lawsuits, many likely unfounded. The problem isn’t that lawyers don’t make money on quick settlements, it’s that such a settlement wouldn’t have been in their client’s best interests. It sounds incredibly naive to argue otherwise, frankly.

I agree that there are definitely situations where quick settlements are in both parties’ interests, and that sometimes parties will get caught up in winning and lose more money pursuing that than they would have in agreeing to the quick settlement. But if you think the Harvard case is an example of that, I’m not sure I’d trust your judgment on the other examples.

And again, I get if you personally don’t want to be defending against a case like the Harvard one. Plenty of people don’t want to be in that position, if you believe the plaintiff was in fact wronged. But that doesn’t make defending Harvard ethically wrong bc our legal system is adversarial. You might do better with the Navajo peacekeepers.

(Also the comparison to a drug-addicted LARPer is kind of amazing.)
Last edited by nixy on Wed Jan 22, 2020 5:50 pm, edited 1 time in total.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 5:48 pm

I think it would have been better for them, not only financially but in terms of reputation, as well as the young woman. I can't imagine why you'd add to the poor young woman's misery in that way. I also don't think repeat lawsuits were an issue. As I wrote above, people don't go to Harvard as part of a master plan to contrive sexual assault and sue. That woman's life has been devastated.

Any way we can disagree.

But I just remembered a public quote on my blog, from an esteemed attorney, that should lay to rest the notion that settling violates Rule 1.7. This attorney had started a public campaign to settle her opioid case, to "get the monies to the communities that need them, to the people that are addicted ... rather than to pay attorneys’ fees for years and years and years to come."

On my blog, you'll see how O'Melveny handled that same case. Not only were they the only firm to not settle, but they engaged in a trial that was televised and devastating to their client's reputation, which they lost thankfully, not to mention the much more serious issue -- namely that people will probably die because the aid funds are being held up in appeals (appeals that will probably last years. O'Melveny knows how to milk a case. They litigated the Exxon-Valdez oil spill for a decade.)

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Re: My Problems with O'Melveny & Myers

Postby nixy » Wed Jan 22, 2020 5:54 pm

Again, this sounds like an incredibly naive view of how our legal system works. No one has said that settling has to violate 1.7. And your assessment of Harvard’s reputation isn’t what governs - it’s Harvard’s assessment.

And again, they won on summary judgment. It wasn’t a frivolous defense at all. They were clearly correct to believe they could win, and thereby avoid the bad publicity of being found to have not handled a sexual assault case properly and the cost of future lawsuits.

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 6:00 pm

To speak generally and not about any particular case -- the notion that the client makes all litigation decisions is just not true. They are influenced by, if not effectively controlled, by the advice given by attorneys. You can't just avoid responsibility by saying "the client wanted this" when you made them want that, to maximize billable hours and margin.

Again I've seen all sorts of rhetorical tools used to achieve this. One I saw (publicly outside of O'Melveny) was a biglaw firm convincing a medium-sized bank that they had to pay them a fortune to litigate a small fee issue, by one plaintiff (not even a class action) -- because it was an important question for their business. It was rhetorical nonsense, said by partners who dreamed of all the margin flooding into their accounts. They predictably lost that case.

On that young woman's case, I completely disagree regarding your assessment. Her case was a tragic mess of a wonderful young woman having her life upended by lawyers, not just in the litigation, but also what they did to her after she complained. But I don't want to copy and paste the posts I wrote about it, so let's agree to disagree.

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Re: My Problems with O'Melveny & Myers

Postby cavalier1138 » Wed Jan 22, 2020 6:07 pm

I'm late to the party, but is OP now arguing that it's an ethical violation to recommend a winning litigation strategy?

P.S. If it's online, it is definitely not "LARPing," since the first two letters stand for "Live Action."

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Re: My Problems with O'Melveny & Myers

Postby BloggerAMG » Wed Jan 22, 2020 6:17 pm

It depends on how you define win. Speaking generally and not about any particular case, I don't think charging a client more in legal fees than they would have paid in a a settlement, as you beat the victim down with years of paperwork and litigation tricks, until they no longer have money to fight and have to drop their case -- damaging your client's reputation in the process -- is a win. But we all have different values.

Again, the quote I provided above supporting the approach I recommended, is by an esteemed attorney. If you really want to know who, you can read it on my blog by reading a scan of the news story that contains that quote. I don't want to throw this person's name around. Any way. I'm going to drop this as I don't know who any of you are and I do not like debating the anonymous. Thank you again for allowing my poll, and taking the time to respond.

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Re: My Problems with O'Melveny & Myers

Postby FND » Wed Jan 22, 2020 7:32 pm

BloggerAMG wrote:It depends on how you define win. Speaking generally and not about any particular case, I don't think charging a client more in legal fees than they would have paid in a a settlement,... -- is a win.

And this is why defendants often settle, even when they're right. Most attorneys will discuss settlement, even if the client is dead-set against it. In the end, it's always up to the client.
BloggerAMG wrote:the notion that the client makes all litigation decisions is just not true. They are influenced by, if not effectively controlled, by the advice given by attorneys.
that may be true for Joe Schmo, but Harvard is a sophisticated client with good in-house attorneys of their own (not to mention HLS faculty). There's no way they wouldn't have considered the cost/benefit (including reputational risk) of settling vs fighting.

Besides, for all you know, Harvard may have offered to settle, and the defendant rejected it. Happens all the time.
BloggerAMG wrote:Any way. I'm going to drop this as I don't know who any of you are and I do not like debating the anonymous. Thank you again for allowing my poll, and taking the time to respond.
If it's such a big deal, PM me, and I'll be happy to tell you who I am, and share my bar card, if you'll do likewise

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