After a mandatory arbitration provision and nondisclosure agreement in a Munger, Tolles & Olson summer associate employment contract emerged on Twitter nearly two months ago, law students from some of the nation’s top law schools are now taking action.
From the University of California, Berkeley, to the Georgetown University Law Center, students have penned letters calling on law school administrators to bar firms with these agreements from using campus facilities to recruit new summer associates.
As a result, Yale Law School, along with Columbia and Cornell law schools and 11 other top law schools, announced Monday that it will now require law firms that interview on campus to complete a survey and openly disclose whether they will require summer associates to sign arbitration provisions and other related nondisclosure agreements.
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“At law schools, we don’t talk about what people’s individual contracts look like,” said Molly Coleman, a first-year Harvard Law School student who played a role in organizing the campaign. “There’s the culture of secrecy [and] you’re told you’re not allowed to share your contract with anybody.”
However, that so-called wall of silence was torn down following a tweet by former Jones Day associate and current HLS lecturer Ian Samuel that Munger Tolles required its summer associates to sign mandatory arbitration and nondisclosure agreements in their employment contracts.
The firm quickly backtracked and announced that it would no longer require its employees to sign mandatory arbitration clauses. Orrick, Herrington & Sutcliffe and Skadden, Arps, Slate, Meagher & Flom subsequently announced that they too were dropping mandatory arbitration provisions as a condition of employment.
But Samuel’s tweet and the fervor it generated in light of the #MeToo movement and various gender discrimination suits involving Big Law has prompted and promoted conversation over the appropriateness of the inclusion of these provisions for summer associates, Coleman said.
“It kind of opened our eyes to the fact that we shouldn’t be allowing this conversation to be swept under the rug,” she said. “We should be forcing it out there even if law firms don’t want it out there.”
The Yale-led survey will ask law firms if summer associates will be asked to sign mandatory arbitration clauses and/or nondisclosure or confidentiality agreements. It will also ask some basic questions about how law firms handle complaints regarding workplace misconduct, as well as how these policies are conveyed to new hires.
The survey will also ask when information about mandatory arbitration clauses and/or nondisclosure agreements will be provided to summer associates and whether it’s provided at the time of the initial offer or some time later close to the start of their summer internship.
An underlying issue is that many law school students are not getting these agreements until they’ve already accepted offers, said Stephen Schultze, a student at Georgetown who led his law school’s call for the elimination of mandatory arbitration provisions.
“It almost feels like an ad hoc contractual obligation that’s being imposed on [summer associates],” Schultze added.
Survey results will then be compiled by Yale and will be made available on June 8 to students at the participating law schools. If law firms choose not to disclose such information on the survey, their noncompliance will be noted, Schultze said.
Both Schultze and Coleman said the ultimate goal of the survey is the elimination of mandatory arbitration and nondisclosure agreements for summer associates. Right now, survey results can serve to give law school students some agency in determining the best choice for their career.
“When you’re talking about a summer associate who sees this as do-or-die for their career, they’re at the lowest point of their potential ability to negotiate,” Schultze said.
And while there are questions about how appropriate arbitration and nondisclosure agreements are within Big Law, at the moment the Yale-led initiative is seeking to tackle the controversial issue in a manner that most immediately affects its constituents, Schultze said.
“For now, we are focused on summer associates and people who are just trying to get a foot in the door in the profession,” he said.