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The Silence of Judge Kozinski's Former Clerks in Big Law

Vivia Chen

December 27, 2017

They are piling up like hotcakes at the diner. As of this writing, at least 15 women have come forward, alleging that Alex Kozinski engaged in inappropriate behavior while he served as a judge on the Ninth Circuit Court of Appeals.
So many credible women came out with their own stories after The Washington Post first reported the accusations on Dec. 8, that the unthinkable has happened: Kozinski is calling it quits. (He resigned on December 18 after the Ninth Circuit launched a formal inquiry.)
So is Kozinski's resignation a sign that the #MeToo movement is finally hitting the legal profession? Well . . .
What's notable is that the women who've gone public about Kozinski's lascivious acts are predominantly from academia (others who've spoken on the record include a journalist, a law student and a former federal judge). What's conspicuously absent are women from major law firms.
So here's my question: Are women in law firms still reluctant to speak out about harassment?
"Many of us who spoke out did so because we were senior enough not to be risking a lot," says Nancy Rapoport, a professor at the University of Nevada, Las Vegas, School of Law. "I'm a full professor. I have tenure. I recognize that my rank is a special privilege." Rapoport adds, "I might not have weighed in with my own experience had his remarks not appeared to have minimized what his former clerks were alleging." But not having to worry about career repercussions made it easy to go public about Kozinski's antic. (When she was clerking for another Ninth Circuit judge, Kozinski asked her, "What do single girls in San Francisco do for sex?"). 
Rapaport also offers a practical reason for why Kozinski's female clerks now in private practice might not be chiming in about his abuse: Some are probably litigators and "speaking out might cause an awkwardness at the Ninth Circuit in future cases."
Practical reasons aside, the culture of Big Law still lags behind when it comes to matters like harassment. "Academia is more supportive of women on these issues," says a former (male) Ninth Circuit clerk who knew Kozinski. "If that stuff came out about a law professor, he'd quickly be suspended or lose tenure," adding that law firms are less likely to take quick action with an important partner.
While it's acceptable for students and fellow academics to out an abusive professor, law firms might not appreciate one of their lawyers joining the #MeToo choir, even if the alleged abuse had nothing to do with the law firm. "Law firms don't want to be in the news for the wrong reason," says this former clerk. "Given the ratio of men to women in positions of power at law firms, women are cautious about being labeled a troublemaker."
Indeed, former Kozinski's clerks now working in Big Law—and there are lots of them (particularly men) in big litigation practices like Gibson Dunn & Crutcher, Boies Schiller, Jones Day, Susman Godfrey and Kirkland & Ellis—don't seem eager to share their experiences. I contacted a handful of Kozinksi's former female clerks at some of those firms and heard not a peep from any of them. (Fun fact: One former clerk deleted Kozinski's name from her bio on the firm's website and only mentioned that she clerked on the Ninth Circuit, though she proudly displayed her clerkship with Sandra Day O'Connor.) To be fair, though, I contacted a bunch of Kozinski's male clerks too and they didn't respond either. 
I know, my sampling is hardly scientific. And while it's possible that the women who clerked for Kozinski then pursued careers in law firms neither experienced nor witnessed his troublesome behavior, it seems unlikely. 
If women are reluctant to speak out about a now established pariah like Kozinski, what are the chances that women in law firms will come public about an abusive partner? I'd say very low—unless the female lawyer has already decided to burn her bridges with Big Law.
Not everyone shares my view that women in law firms will pay a price for speaking out. Stanford Law School professor Deborah Rhode, an expert on gender issues, says change in culture now affects the legal profession: "I can't imagine that there would be adverse career consequences given the number of women who've made complaints about Kozinski."
Gee, I hope Rhode is right.
Meanwhile, would any of you out there in Big Law care to share your #MeToo moment?


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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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