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Munger Tolles debacle highlights power disparity between law firms and law students


This past Saturday evening (March 24, 2018), Ian Samuel leaked a proposed arbitration agreement that Munger, Tolles & Olson, LLP was considering having summer associates sign. Samuel, lecturer at Harvard Law and co-host of the First Mondays podcast, was tipped off to the proposed agreement by a podcast listener who wished to remain anonymous.

Samuel tweeted out highlighted portions of the agreement:

The agreement specified that it applied to “all employment-related claims that the Firm may have against You, or that You may have against the Firm” or any member or affiliate of the Firm, including partners, members, and other employees. The agreement specifically listed potential claims under Title VII—and was to apply “without limitation” to all claims under state and federal law.

If that wasn’t enough, the agreement made clear that any and all reports, investigations, communications, evidence, and witness statements would be kept completely confidential. The agreement specified that the signing summer associate was bound by this confidentiality agreement and must take all necessary steps to keep such information within the confines of the firm.

The blowback from the proposed agreement was immediate—and fierce.

The possibility that this agreement would be used to intimidate and ultimately silence victims of sexual harassment and assault was all too clear. And—to their credit—Munger Tolles’ reaction was swift. A mere 19 hours after Samuel’s initial tweet, the law firm released the following statement: “Munger, Tolles & Olson is committed to the highest standard of conduct. In this case, we were wrong, and we are fixing it. We will no longer require any employees, including summer associates, to sign any mandatory arbitration agreements.”

But this weekend’s debacle highlights a real issue with summer associates and law firms that can’t and won’t be fixed with a three-sentence make-up tweet. On the heels of the #MeToo Movement, it’s important to remember that law students are at a distinct disadvantage when dealing with summer opportunities. Do we really believe that a 1L would see this arbitration agreement (or something similar at another law firm) and decide not to accept an offer with a prestigious firm? Maybe. But probably not.

As UNC law student Alyssa Leader put it in a tweet: “Many of us are not in a position to decline an offer from a top firm regardless of whether there is a mandatory arbitration clause. Firms who include one are aware of and exploiting that power differential.”

And that’s the real issue: firms know that first- and second-year law students, never mind firm associates and staff members, do not have the clout, backup, or power to fight against a one-sided agreement such as Munger Tolles’. This kind of power imbalance is true throughout the legal community, as seen most recently in the fight to protect judicial law clerks and legal externs. The courts are attempting to create avenues to report harassment in a way that does not compromise the need for courts’ confidentiality. Our profession has no yet found that balance. But agreements such as the one proffered by Munger Tolles are certainly not the answer.

Firms already wield an extraordinary amount of power over the lives and careers of law students and young associates. They can make (or break) summer associates’ careers. It is incumbent on law firms, partners, and others in leadership roles to ensure this disparity in power and prestige is not exacerbated by their own internal policies.

Similarly, it is time for law schools, career-services personnel, law professors, recruiters, and all others who assist law students in finding positions to stop engaging in passive information gathering and instead actively seek out the internal policies of firms and organizations invited to recruit their students. Recognize the inherent power disparity and make a commitment to start evening the scale. Enforce non-discrimination policies and procedures among recruiting law firms. Never allow a firm to demand confidentiality from a student over employment-related issues.

We owe it to our students—future colleagues in the legal profession—to protect them in every way possible.