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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Kathryn Rubino

Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree in journalism...

Episode Notes

Joe and Kathryn discuss the top stories of the week at Above the Law including the rise and fall of Judge Posner’s pro se organization, Weil Gotshal’s cafeteria cold shoulder, and the California Bar’s good news. Plus we talk a bit about Emory’s struggles with racial slurs. Just another week in the annals of the legal industry.


Above the Law – Thinking Like a Lawyer

Revenge Is A Dish Best Not Served To Guests In Weil’s Cafeteria





Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while Thinking Like a Lawyer, here on Legal Talk Network.




Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me is Kathryn Rubino also of Above the Law joining us because Elie Mystal is out again this week. How are you today?


Kathryn Rubino I am doing pretty good. I am getting used to being a part of the Thinking Like a Lawyer cast here.


Joe Patrice: Yeah, you are kind of officially the villain.


Kathryn Rubino: Oh, you are whispering now.


Joe Patrice: We should do this whole episode as in ASM or whatever, is that AS — is that — what is that, I don’t even know what is it.


Kathryn Rubino: I think it’s something like that.


Joe Patrice: Yeah, yeah, do that — yeah, no, let’s not do any of that.


Kathryn Rubino: I have the nails for it.


Joe Patrice: Yeah, no, let’s do none of that.


Kathryn Rubino: It’s a little creepy, you remember that like Super Bowl commercial they had about that, it was like —


Joe Patrice: With the beer.


Kathryn Rubino: Zoe Kravitz and she was all like, kind of creepy.


Joe Patrice: Yeah.


Kathryn Rubino: It’s not something I really want to watch like with my like mom during a football game either.


Joe Patrice: Right, yeah.


Kathryn Rubino: So weird.


Joe Patrice: Yeah, but we could become the first ever legal podcast that goes all the way through whispering and clinking bottles.


Kathryn Rubino: That will be something, let me tell you.


Joe Patrice: Yeah, no, let’s do none of that.


Kathryn Rubino: No, you don’t like it?


Joe Patrice: Yeah, put an end to it.


Kathryn Rubino: Okay.


Joe Patrice: Okay. So we have accomplished what we are not going to do today. What are we going to talk about today?


Kathryn Rubino: So we go through some hot topics.


Joe Patrice: Okay, this is becoming our go-to. For those of you who think that this is just kind of a lazy device that Kathryn and I have for whatever Elie emergency disappears and she is called in to be the guest host.


Kathryn Rubino: It is.


Joe Patrice: Then you are totally right, that is absolutely what this is and it’s — and so you get to be regaled by our discussing the hot legal topics that we have been covering over the last few days.


Kathryn Rubino: Well, one of the biggest hot legal topics of the last couple of days, weeks is Greg Craig, former Skadden counsel, was found not guilty. He had been prosecuted as part of the Mueller probe for lying to investigators about whether or not he was a lobbyist. So he is all good, everything is fine and dandy. What’s going on there?


Joe Patrice: So the issue with Greg Craig for those who weren’t following this throughout is much like a lot of Washington lawyers. Greg Craig made his career by being in government and then immediately turning around and being in the private sector and doing a thing that you would consider lobbying and commonsense would consider lobbying, but the law would not consider lobbying because then they wouldn’t be allowed to do it.


We have series of regulations that prevent people from lobbying and particularly when they are lobbying on behalf of foreign governments. In this instance, Skadden was hired to produce a report that told the then pro-Russia Government of Ukraine that it was okay that they were jailing innocent people.


Kathryn Rubino: Yeah, political prisoners.


Joe Patrice: Yeah, political prisoners. So he puts together this, which is designed for the purpose of convincing people that Ukraine is not run terribly, so that would be one would say lobbying on behalf of the Ukraine.


However, if you don’t do certain things, then you don’t count as a lobbyist and you don’t have to register as a foreign lobbyist, and Craig’s actions, once everything came out, the jury determined that Craig may well have lied to investigators about being a foreign agent, but those lies, to the extent they happened, happened before the statute of limitations period here, so therefore after the October 3, whatever year, date that they had to work with, he did nothing to mislead anyone as far as what he was doing and so he is not guilty.


Kathryn Rubino: So that’s factually what happens, but I know you have taken a pretty bold stance that it says something bad about the way this system is set up.


Joe Patrice: Yeah, I mean the way in which we have people who are lobbyists in all but name as an effort to circumvent any regulation of the activities they do is a bad thing. I understand the need to some extent for a revolving door because —


Kathryn Rubino: That’s how people are willing to work in the government, right, for a certain extent, you know?


Joe Patrice: Yeah. Obviously there are abuses to it. There is some value obviously. There is expertise that can be brought up and so on, but on the other hand it, leads to some industry capture, which is problematic.


Kathryn Rubino: Sure.




Joe Patrice: Point is there is some degree of evolving door no matter what you do and there are some perks to it. That said, the way in which people can avoid the regulation is really troubling.


I wrote an article about a relatively famous political figure that if I named you would know. I put in this article that he was working with a lobbying shop because he was on the letterhead of a lobbying shop that they send around when they try to say to clients, hey look, we have this lobbyist. And I used the small l word lobbyist, and I got an immediate email from his people saying that it’s imperative that we not call him a lobbyist. And I was like right, because you are not legally able to be a lobbyist, but what you do is lobby people.


Kathryn Rubino: So you are a person who lobbies people, who is not a lobbyist.


Joe Patrice: Yeah, and that’s a real problem. I think transparency is a good antiseptic. If people were required to call themselves lobbyists, even if it’s a little sketchy, we at least could see that that’s what they were doing. But right now we have created a world in which we have real penalties for people improperly lobbying and not registering, but we have written them in such a way to allow people to actually do it in the dark and that’s bad.


Kathryn Rubino: Yeah, that’s worse.


Joe Patrice: Yeah. And so that was the Greg Craig story. Obviously one of Craig’s associates did plead guilty in this case, but Craig himself has managed to avoid anything, which he should have all along, because what people don’t necessarily remember about the procedural posture of all this, is that this grew out of the Mueller report because Manafort was the go-between to hire, between the Ukrainian government and Craig and this was much like a lot of Mueller spinoff investigations that weren’t directly tied to what he was working on.


It went to the SDNY and the SDNY’s US Attorney’s Office looked at it and went yeah, there is nothing here, and it was then picked up by main justice in — I mean we are not going to say that it was a deliberately political attempt to try and make sure that there was a Democrat who got caught up in Mueller stuff, but it was a deliberately political attempt to make sure a Democrat got caught up in Mueller stuff and it backfired on them.


Kathryn Rubino: So next topic we are post Labor Day, that means everyone is now back to school, law schools are all in session.


Joe Patrice: I am not wearing white, so.


Kathryn Rubino: Congratulations, nor should you be. So we are back to school, everyone is back to law school, and I know you got a lot of play skewering advice columnists who have some advice for law school students, remember that, but what is your actual advice for — well, let’s talk about the situation first, then we can actually get into our real life advice for law school students.


Joe Patrice: Sure. Advice columnist answered a very, as one might expect —


Kathryn Rubino: I am totally freaking out about law school.


Joe Patrice: I am freaking out about law school, it’s so much work, everyone told me it was so much work, but I am really freaking out in week one, and I have got to say like if you are freaking out in week one, one of two things is a problem and if both of them are problems, maybe, maybe you should consider making a career change over.


One is that you are so tightly wound and neurotic that this job is going to cause you some real problems if you don’t start to get some perspective on it; or two, you went to some college that didn’t prepare you for the concept of a workload, at which point this profession may be a problem for you unless you get caught up.


Kathryn Rubino: Well, I mean I don’t think that’s entirely fair. I mean I think that the beginning of law school is often — this was a 1L, oftentimes law professors feel the need to deliberately scare new law school students, right? It’s the whole paper chase, look to your left, look to your right. They are trying to make it seem like being a lawyer is much harder than it is.


I think there is a vested interest for a lot of the people who have achieved a certain level of acclaim in the profession to make it harder, make it seem like what they have done is worthy of the accolades they have received, and so they want to seem — make it seem like it’s hard. And it’s not to say that it isn’t hard or that it — learning to read a case is different, it’s certainly something that — I can remember first week of law school being shocked at how long it took me to read a case.


Joe Patrice: Yeah.


Kathryn Rubino: I mean it’s like I am a relatively fast reader and it was like I can’t even imagine how I couldn’t get through these words quicker than this. And I mean obviously that changed over the three years and certainly in my legal career, but that’s a real thing that’s not like oh, you went to a shitty college and/or you majored in ceramics; therefore, you are not truly prepared to be a lawyer.




Joe Patrice: Yeah. Maybe it was — obviously they were writing a letter for the audience of getting into an advice column, so maybe it was a little drenched in hyperbole, but the breathless freaking out struck me as though that was probably not where they wanted to be if they are going to law school, but alas.


Kathryn Rubino: So speaking of law schools, A, notorious law school recently cut their tuition by something like over 20%. I think it was Cooley is that, right?


Joe Patrice: Yeah, so that one — one of these days I am going to — we are going to have to talk about one of your articles, but for now I guess I am still on the hot seat.


So the Thomas M. Cooley Law School, which is run now — is affiliated now with Western Michigan University, though it remains a private school despite the fact that Western Michigan is a public school so whatever. Cooley has a reputation; it’s where Michael Cohen went to law school. Ironically back when he went it wasn’t as dismally considered as it is today. Series of moves happened in the intervening years where they got very desperate about, like a lot of law schools did, about churning some money and their standards lowered and they made some questionable decisions and so they are not considered one of the best law schools out there.


Kathryn Rubino: They are not.


Joe Patrice: They have however, despite being not a very good law school, they stuck true to their commitment of charging students as though they were a very good law school, and what they have done recently is reduced their tuition by some 21% and angry Cooley grads wrote us complaining that we weren’t appropriately covering this heroic act and we don’t think it’s all that right.


When you overcharge the way that you do, you don’t really get brownie points for lowering tuition down by 21%. Indeed doing so brought them back to where they were I believe something like six years ago or something like that. So it’s not really a huge deal. It’s still very expensive, especially considering the dismal bar passage rate that they have. They have a really bad employment score for people who — one of the ways in which we measure employment in law — coming out of law school is whether or not the individual who graduates after a certain number of months is employed in a full-time, long-term job, which requires a JD degree, and if we looked at that, they have a pretty bad run.


A lot of law schools then juice this by something called JD Advantage, which is where they say, well, this person doesn’t have a legal job, but the fact that they have a law degree helped them. They were hired over other qualified candidates because people were impressed by the law degree, which is probably not true, but it’s a way in which they can juice their numbers and even juicing those numbers, they don’t come out very well.


Kathryn Rubino: I am not sure that’s juicing. There are people who attend law schools who are doing it for the “flexibility of a legal degree”, right?


Joe Patrice: Sure. But that’s not what 30% of people at this school are doing or whatever the number is. I believe the biggest on record employer of Cooley Law School grads out of the last couple of years has been Cooley Law School, giving them small jobs part-time to make it look like they have got jobs.


Kathryn Rubino: Not the best.


Joe Patrice: I think for a while that was certainly true; I guess I shouldn’t say for sure that’s what’s still going on, but that is always something to consider when you are looking at employment numbers is who is doing the employing because many law schools get that.


Kathryn Rubino: Sure. I think now they actually count those separately as part of the NALP statistics. They keep those kind of cordoned off so you can see what it is, and sometimes there are good jobs that just happen to be funded, a lot of pro bono or not pro bono, but public interest jobs are funded that way, because it’s hard to get funding for public interest work sometimes. But again, not necessarily what was going on at all the law schools.


So Neil Gorsuch has written a book, a third book actually; he has written a bunch of them, the latest one is actually styled as a memoir and it’s called ‘A Republic, If You Can Keep It’.


Joe Patrice: Oh.


Kathryn Rubino: Yeah. I actually wrote about this a little bit, and the thing that I thought was interesting is he, Neil Gorsuch, clerked for Byron White, Justice Byron White, which —


Joe Patrice: Which is the name of my fantasy football team in the Legal Talk Network Fantasy Football League.


Kathryn Rubino: That’s really good, and that’s actually kind of part of it, right, because his nickname was Whizzer White, he was a football star back in the day, back in his day, who went on to law school and to have a very formidable legal career; became a justice on the Supreme Court and Neil Gorsuch clerked for him.




And one of the stories kind of in there is about how Justice White would tell him, history will forget us all and that’s “exactly as it should be”, and how Gorsuch was like yeah, I guess that’s cool and now how he — when he goes through the Supreme Court and he sees visitors stopping at Justice White’s portrait and they don’t know who he is, it’s just part of the whole history forgets, which is kind of remarkable.


Can you even imagine right now a pro athlete, who is good at what they do, turning around to being a Supreme Court Justice?


Joe Patrice: Sure.


Kathryn Rubino: It would be notable, right, like everyone would still know who that person was.


Joe Patrice: Oh, I see what you are saying, yeah.


Kathryn Rubino: In terms of he is not remembered anymore.


Joe Patrice: Yeah, I mean White played in an era where the NFL wasn’t what the NFL is today I think.


Kathryn Rubino: Sure, that’s fair, that’s a fair point.


Joe Patrice: I mean probably a better corollary is the career of Alan Page, who was on the Minnesota Supreme Court, who people absolutely remembered as a football player too.


Kathryn Rubino: Sure.


Joe Patrice: Though I have heard from people I know who knew him well that he was very annoyed when people wanted to talk about the football rather than his legal career, but still.


Kathryn Rubino: Sure. And reportedly Justice White did not appreciate being called Whizzer towards the end of his legal career. But one of the things I kind of point out too is that Merrick Garland said like it’s fine to be forgotten.


Joe Patrice: Not Garland.


Kathryn Rubino: Oh, I am sorry, yes.


Joe Patrice: Yes, you said Merrick Garland, because that’s the person who would sit in that seat.


Kathryn Rubino: And that’s the exact point that I was trying to make, my head got a little ahead of myself there, but it’s going to be impossible to forget Neil Gorsuch, he will always be at the very least the answer to a trivia question, because never before were the sort of machinations for a seat so on display as they were when they refused to even give Garland a hearing.


Joe Patrice: Yeah, it’s gotten like maybe an Abe Fortas for chief kind of thing, but that’s about the only historical corollary I can really think of.


Kathryn Rubino: Right. And it’s not quite the corollary, right, because he still was on the court.


Joe Patrice: Right, though he left after that, but yeah, understood.


So did you write anything, you have your computer in front of you, mine is not available because it’s recording the podcast, so why don’t you talk about something?


Kathryn Rubino: Well, I mean, I was.


Joe Patrice: Okay, good.


Kathryn Rubino: So apparently there is news to celebrate in the legal academia, because MBE scores are up.


Joe Patrice: Okay.


Kathryn Rubino: That’s the Multistate Bar Exam. I think 44 jurisdictions use some form of the MBE as part of the overall exam score. So this doesn’t tell us that overall passage rates are up, right, because it takes forever for people to — for the various state bar organizations to grade the bar exam. So we don’t know — no state has as of yet released their passage rates for the July 2019 sitting of the bar exam, but the MBE scores we know are up. It’s actually 1.6 I think points up over last year’s mark, so we expect better passage rates as a result.


I think the majority of the jurisdictions that use the MBE use it for at least 50% of their overall grades, so that seems like it’s good.


Joe Patrice: Yeah.


Kathryn Rubino: And listen, it’s good news and if you took the bar exam and you are worried, oh my gosh, I am freaking out, did I pass, this is a good sign.


Joe Patrice: Yeah.


Kathryn Rubino: But, but this kind of a 1.6 point increase is a lot, but it still doesn’t get us back to where we were in 2017. The problem is really that. In 2018, there was a giant decrease, it was like a 34 year low, and we haven’t quite gotten back up to where we were before that dip.


So it’s hard to say whether or not these are sort of lasting trends that will change the legal industry, but I guess it’s good news, and for those that don’t remember, the MBA is the multiple choice part of the exam, which —


Joe Patrice: Which as you said takes — is usually around half of the whole exam’s score.


Kathryn Rubino: Right. So Joe.


Joe Patrice: Yes.


Kathryn Rubino: Somewhat of a mini scandal in big law broke today and I think you wrote about that. A law firm has banned one of their clients from their firm cafeteria?


Joe Patrice: Yes. As it turns out while Gotshal had been allowing investment bankers from one of their clients, which also has an office in the same building to use their cafeteria —


Kathryn Rubino: Which is —


Joe Patrice: It’s a very nice gesture; it is a little weird in that, one person quoted in the New York Post’s coverage of this said, it’s weird to have people from outside the firm in an area of unescorted — in an area of the firm where they could get confidential information, but honestly, people go in and out of those cafeterias, clients who are there for the day, opposing counsel who are there for deposition. If people were talking about confidential stuff in that cafeteria, that’s a bigger problem.




So, I don’t think it was weird that they were allowing folks to be in there, but the bank and its longtime attorneys are in the middle of a bit of a legal tiff owing to apparently some former bankers at the place were not paid correctly potentially on advice from Weil, Gotshal and it is something that no one understood until four years later after those people had been fired and they sued to get their deferred comp back.


It came up in a meeting at Weil that they discovered according to what’s alleged that while attorneys discovered that they’d actually screwed everything up the first time four years ago and allegedly, they responded to this by saying let’s not tell anybody the fact that —


Kathryn Rubino: Pretty much every legal problem goes away if you ignore it long enough, right?


Joe Patrice: Right, so —


Kathryn Rubino: I think that was on the Bar exam, right?


Joe Patrice: That’s what’s being alleged and the bank is annoyed about this, as one might expect, because they very well could end up on the hook for this if this is true. And so, they’ve made some threats about firing Weil and Weil then did the commensurate thing which is, well, you can’t sit at our table anymore.


Kathryn Rubino: Well, that sounds all right. Other big legal stories this week; there was an attorney who’s a prostitute.


Joe Patrice: Yes. Well, all attorneys are technically prostitutes, but in this instance, I mean, quite literally.


Kathryn Rubino: So I read the story that you wrote about that, and initially I was like, oh yeah, I guess, that’s a thing that happens.


Joe Patrice: Was very sex worker positive story, this is a situation unlike that. Yeah, unlike some stories in the past where we’ve had people either in law school or lawyers turn into —


Kathryn Rubino: Sex workers, yeah.


Joe Patrice: — sex work — that often those stories are in a narrative of they were forced to because of bills or whatever.


Kathryn Rubino: Can make payments and loans.


Joe Patrice: In this instance the woman Katie Sears in Iowa had a very kind of sex positive attitude, she works in a legal brothel — worked in a legal brothel in Nevada, she’s been taking time off because she just had a kid and she just said, it’s fine, I can get paid for it, and why not, I find it empowering, and it’s like, all right.


Kathryn Rubino: Good for her, man.


Joe Patrice: Her husband was cited in the article, he said, he doesn’t really think about it much, and when he was asked why.


As it turns out part of the reason, I guess, he doesn’t think about it all that much is he was in the midst of unbeknownst to all of us when we reported this story, but hours after the fact, he’s been in the midst of a long-running disciplinary complaint that resulted in his license being suspended indefinitely.


Kathryn Rubino: So what he do?


Joe Patrice: So there was a DUI, there was a DUI, which is something that unfortunately happens a lot in the legal profession because there are problem drinkers as well as more actually diagnosed substance abuse problems in the profession. He didn’t fulfill his obligations under the sentence to go to some of the treatment he was supposed to do, just bad.


Kathryn Rubino: Sure.


Joe Patrice: In addition to being married to Katie, he apparently still hangs out with his ex-wife and there was a thing where he got a hold of his ex-wife’s gun, talked about killing himself, then she didn’t want to give it to him, so he beat her allegedly and —


Kathryn Rubino: It’s like a pretty dark turn there from being a feel good, sex positive story.


Joe Patrice: Yeah, then he according to the Iowa Supreme Court’s opinion, he ultimately got picked up by the police when she called, the ex-wife called, and he — or ex, I guess I shouldn’t say ex-wife I’m not positive if they were married or just ex, they’re referring to it as ex.


Kathryn Rubino: Fair.


Joe Patrice: No, no, I think they were, anyway whatever, and the police noted that as part of his DUI sentencing, he wasn’t supposed to have access to firearms or anything like that, so all of that comes back. He’s convicted of the assault here and these issues all in addition to him getting supervised release for all of these crimes directly, there are disciplinary issues.


And so it went to a disciplinary committee who recommended this and the Iowa Supreme Court agreed. He has lost his license indefinitely. He can’t apply to get it back for another two years.


Kathryn Rubino: So, I’m going to try to lighten the mood here because that was fairly depressing.


Joe Patrice: It was.




Kathryn Rubino: So I want to ask your advice about something.


Joe Patrice: Okay.


Kathryn Rubino: It’s kind of professionalism question.


Joe Patrice: You should ask me more professionalism questions, yes.


Kathryn Rubino: Sure, sure.


Joe Patrice: So this is not a visual medium so they can’t see your eyes roll, go on.


Kathryn Rubino: Rolled so hard back into.


Joe Patrice: Like a great white about to bite down. Yeah?


Kathryn Rubino: Should you be using the phrase beautiful tits in an email?


Joe Patrice: No.


Kathryn Rubino: No, no work emails, don’t use beautiful tits.


Joe Patrice: Yes that is –


Kathryn Rubino: That’s a pretty bright line rule I think.


Joe Patrice: Yeah I think that’s pretty fair. But this is a story about the practice group of the Indiana State Bar sent out a — if you’re in a Bar Association you know the drill.


Kathryn Rubino: I mean people aren’t doing that anymore really, right but okay.


Joe Patrice: No, no people send out the little monthly, the monthly hey here’s a little whatever it’s part of the community building. And this guy sent out some jokes about grocery stores and among them was a joke about a woman with beautiful tits apparently and that’s problematic.


The guy hours after the fact said that it was wrong and that the joke actually would have worked without that language and so that’s what he should have said, which I feel kind of misses the point because the entire –


Kathryn Rubino: Yeah I mean the joke was like something about like the wife.


Joe Patrice: The guy walks up to a random woman in the store says can I talk to you for a second and she says why, he says because I’ve lost my wife somewhere in the store and every time I talk to a woman with beautiful tits like yours, she shows up.


Kathryn Rubino: Yeah so it doesn’t really matter, the beautiful tits is just kind of like the cherry on that racism, sexism Sunday.


Joe Patrice: Yeah right yeah. So he, yeah, so he said oh I shouldn’t have said that I should just said beautiful woman, which really underscores the — doesn’t really address, I shouldn’t say underscores, doesn’t really address the underlying problem which is the whole premise of the joke is sexist.


Kathryn Rubino: Sure, sure. Objectifies women.


Joe Patrice: Yeah there’s not really yeah.


Kathryn Rubino: No, I mean no one’s saying don’t be entertaining or funny and be lawyers.


Joe Patrice: Right, right the issue is that just wasn’t particularly entertaining on top of all of the other issues.


Kathryn Rubino: Sure, that’s also true. But I’m not saying like ban all humor from Bar Association Listservs.


Joe Patrice: Oh no. And I’m afraid that’s –


Kathryn Rubino: That’s going to be the takeaway.


Joe Patrice: That’s the dumb takeaway.


Kathryn Rubino: That’s the dumb takeaway. But it is in fact I think what a lot of people are going to take away from that.


Joe Patrice: Yeah one of the dumbest trends out there are these folks who think that oh that joke was offensive therefore all jokes I guess people are going to find offensive and that’s not true. Good jokes don’t have to be offensive. You can actually make non offensive jokes and in certain settings, offensive jokes do work right like you could be a professional stand-up comic who’s doing things with heavy doses of irony involved.


Kathryn Rubino: That’s not a professional Listserv.


Joe Patrice: Yeah that’s not a professional Listserv.


Kathryn Rubino: Right and if you are going to be funny or tried to be funny let’s be clear on a professional Listserv then you should probably be pretty careful about the jokes that you make. I don’t think that’s that hard of a standard to me.


Joe Patrice: No, not at all. All right well –


Kathryn Rubino: I was going to talk a little about Judge Posner.


Joe Patrice: Okay.


Kathryn Rubino: I know you write about him quite a bit. He retired quite suddenly actually from the Seventh Circuit and when he retired, he started a foundation to do work on behalf of pro se clients.


Joe Patrice: Helping out pro se clients, yeah.


Kathryn Rubino: Which is awesome but then he recently just closed that foundation because there’s too many pro se people, which seems like the opposite response that you might want to have. There’s such a problem with pro ses, we have to start an organization to help them then you get so many pro ses, that you’re like fuck it, we’re going to shut it all down, shut it down, going home, taking my ball going home.


Joe Patrice: So there are two issues potentially here and they’re both, one or the other is true probably but let’s just operate under the subject like either one of these being true says something. On the one hand, it underscores the issue of how access to attorneys has gotten out of hand because of cost overruns.


Obviously we know about the crisis of indigent clients but they may have access to some pro bono help. There’s now a situation given how expensive attorneys are, a whole category of middle-class folks who can’t afford lawyers and therefore are locked out of the system as well, and being pro se is having everything against you. You probably are confused by what everything that’s going on because the legal system tries to make it confusing, which is Judge Posner’s underlying point.




To that extent, it underscores how bad this problem has gotten that hundreds of people were reaching out to Judge Posner who, mind you, for pro se litigants are not generally lawyers. These are people reaching out to a federal judge who is a superstar in our little world, but not well-known outside of that.


So, you’ve got to imagine if there were hundreds reaching out to him, there are thousands more who are facing these issues who didn’t even know to try reaching him. And that’s a concern that we should all take seriously about how the judicial system should adjust to deal with these folks and how law should adjust its whole industry landscape to do that.


A flipside to this that was voiced by the executive director of the group was that in actuality there were opportunities to service a lot of these clients, but that instead many of the affiliations that the group set up with private practice lawyers to be on their list to help out, we’re really more interested in having their name right next to Judge Posner’s than actually doing the work, and that many times he was calling people and pulling teeth and telling them you need to — we really need you to help this out and they wouldn’t do it.


So that, if it’s true, is also indicative of a broad-based problem because perhaps many of these pro se folks wouldn’t need to be there if more attorneys felt that they could operate in a either pro bono or low bono setting where they can sliding-scale what they charge to help people out, anyway.


Kathryn Rubino: Maybe that’s been the week in legal news pretty much.


Joe Patrice: Yeah, I think that’s right. So when you’re here we kind of transform this. We’ve done different styles we had. We did kind of the ESP anything for a while, it’s like the economist does their weekly roundup of stories when you’re here, so I like that.


Kathryn Rubino: Well, if I had more than maybe six minutes to figure out what we were going to talk about, I could, but —


Joe Patrice: Yeah. No, but I like it, I like it. I think — I hope people appreciate that.


Another thing that people could do by the way is you can write us at [email protected] if you have questions that you’d like us to tackle here because — which we’ve done for the decision before when people are deciding whether to go to law school, but a mailbag episode is always something we would appreciate having because that would be a perfect instance when we are scrambling at the last minute, anyway.


Kathryn Rubino: So send us your legal questions.


Joe Patrice: Yeah.


Kathryn Rubino: But we’re not going to give legal advice.


Joe Patrice: Right. No, not legal advice, but this would be more like —


Kathryn Rubino: About the industry.


Joe Patrice: Yeah, right.


Kathryn Rubino: Or law schools.


Joe Patrice: Sure. Okay.


Kathryn Rubino: Cool.


Joe Patrice: Yeah.


Kathryn Rubinio: Yeah.


Joe Patrice: So read Above the Law. Subscribe to the podcast, review the podcast, that helps us all out on the algorithms that tell people how to find legal podcasts. I am @JosephPatrice on Twitter; she is at @Kathryn1 at Twitter. You should listen to the rest of the offerings of The Legal Talk Network, you should listen to the Jabot, which is Kathryn’s podcast that comes up periodically, and I think that’s everything I usually say.


Kathryn Rubino: Bye.


Joe Patrice: Cool. Bye.




Outro: If you would like more information about what you heard today, please visit You can also find us at,, iTunes, RSS, Twitter, and Facebook.


The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.



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Episode Details
Published: September 17, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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