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Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe Patrice

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

Episode Notes

With election season prematurely upon us, lawyers across the country will gear up to run for office, and their opponents will gear up to bash them for the clientele they’ve served. Should lawyers ever be criticized for zealously defending clients? Is the justice system undermined if attorneys feel some clients are too toxic to represent?

Transcript

Above the Law – Thinking Like a Lawyer

When Are Lawyers To Blame For Their Clients?

09/03/2019

 

[Music]

 

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

 

[Music]

 

Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. I am joined by Elie Mystal who appears — well, he seems momentarily distracted, but in a minute I am sure he is going to be irritated by something.

 

Elie Mystal: I am just — I am generally in a very good mood tonight.

 

Joe Patrice: Ooh.

 

Elie Mystal: We are going to see — my wife and I are going to see The Matrix.

 

Joe Patrice: Ooh, I don’t want to spoil it, but that Keanu Reeves guy is pretty important.

 

Elie Mystal: Yeah, I hear. It’s being re-released for it’s 20th anniversary for one week only and so we have tickets to see in the theater, which is important, because unlike a lot of these fair weather Matrix fans, we saw The Matrix in the theater, even though it was not particularly well-hyped at the time or whatever, but we saw it in the theater, but we got there late, so the whole opening sequence with Trinity running away from the agent, we didn’t see that. We came into the movie when Neo wakes up for the first time, which was a bit confusing.

 

Joe Patrice: Yeah, I could see. Yeah, no, but you have obviously seen it since.

 

Elie Mystal: I have seen it, yeah, many times.

 

Joe Patrice: Okay.

 

Elie Mystal: So yeah, so we are going to see that and I am in a pretty good mood because of that. I have something to look forward to tonight.

 

Joe Patrice: Well, that’s very exciting.

 

Elie Mystal: It doesn’t mean I am not angry about something though.

 

Joe Patrice: Okay, well, that’s super.

 

Elie Mystal: I am angry this week Joe about the bugs.

 

Joe Patrice: Oh, it’s not — you are not mad about bedbugs, you are mad about one bedbug I think.

 

Elie Mystal: In particular, right?

 

Joe Patrice: Yeah.

 

Elie Mystal: For those who for some reason have been living in under a rock or haven’t followed along pp

 

Joe Patrice: It actually isn’t that big a thing outside.

 

Elie Mystal: Dude, he was trending — he was number two trending on Twitter during the VMAs, which is amazing.

 

Joe Patrice: Well, I don’t necessarily know as though that’s true. You saw this in your Twitter —

 

Elie Mystal: No, no, this was like — this was from Twitter Moments, Twitter Moments was telling people that Bret Stephens, who that’s who we were talking about, New York Times calling Bret Stephens was the number two trending topic on Twitter during the goddamn VMAs, beating Lizzo and Taylor Swift.

 

In any event, so yes, unless you have been living under a rock you have probably heard that, Bret Stephens had a bit of a nutty. I guess he came across a tweet from a university professor at George Washington University, I believe. The professor was tweeting about how there was a story about there was a bedbug problem in the New York Times newsroom and the professor tweeted, the bedbugs are a metaphor; Bret Stephens is the bedbug.

 

It didn’t get a lot of likes. I mean it literally got nine likes and no retweets. It was kind of dull, 00:02:55, metaphor joke, right? Somehow Bret Stephens became aware of this tweet. I don’t know how you become aware of that unless you are the kind of guy who searches for yourself on Twitter.

 

Joe Patrice: Oh, those people exist.

 

Elie Mystal:  Which is a one thing. So he somehow found out that this tweet was about him, because it’s not like that professor tagged Bret Stephens. Like I talk shit about Bret Stephens and I tag him, because I am hoping that at least his assistant hears, right, but this guy didn’t even tag Stephens. Stephens found out anyway, sent a nastygram to not just the professor, but CCing the provost of the university complaining about the tweet and challenging the professor to come to his house and call him a bedbug to his face.

 

Stephens got slammed on Twitter, but of course he is Bret Stephens, he doesn’t give a fuck. So then he goes on to MSNBC.

 

Joe Patrice: He absolutely does, right, if he didn’t, his feelings wouldn’t have been so fragile. He absolutely cares, that’s why he has a column searching for just his name.

 

Elie Mystal: He goes on MSNBC and defends his attack of the professor, defends emailing the provost and declares that he is quitting Twitter. He does this whole kind of like insects are what they used to call the Jews, he was trying to — he is trying to hook himself into a Holocaust narrative, which is clearly not what was happening in the context of this particular bedbug tweet, but he tried to hook himself into it anyway and then of course declared he was quitting Twitter and has deleted his account.

 

I have problems with this on many levels, but the one that’s getting overlooked to me, I mean like people are doing it on the whole, like Bret Stephens is such a goddamn white fragile snowflake, he could not last being a week as an African-American or a woman on Twitter, which is absolutely true. I have written posts about the hate mail that I get, like it’s not even comparable, right, bedbugs would be such a step up in terms of the kind of insults that I get, right, and I am not even a woman. So many people have kind of explored the safe space on that.

 

(00:05:02)

 

What I feel is getting someone overlooked in this story is the rank freaking hypocrisy of Bret Stephens. Bret Stephens is one of these fucking Republicans who stomps around, who has basically made his career decrying PC culture and safe spaces on campuses and being angry whenever somebody — a student gets offended or annoyed by a professor who does like critically damaging work on racial social justice or just says incredibly stupid things about race or women’s issues, right?

 

Bret Stephens —

 

Joe Patrice: Well, not stupid, incredibly insightful things about them he gets mad.

 

Elie Mystal: He will — if you are Amy Wax, for instance, Bret Stephens, the guy you call to come and write a New York Times column defending you, right, like Bret Stephens is the guy who will defend the Amy Waxs of the world from getting held accountable or facing retribution for their comments and for their thoughts.

 

So for him to turn around and then try to get this professor fired or at least in trouble by CCing the provost over a freaking tweet that got nine likes, like the level of hypocrisy that you have to have in order to even fix your mouth to do that is just beyond me.

 

Joe Patrice: Right. So here is how it’s not hypocritical, but it focuses actually on a more important question. So it’s not hypocritical to the David Brooks, Bret Stephens people of the world because they believe and talk about their weird anti-political correctness, yadi, yada and anti-safe spaces thing from a perspective that everyone needs to be more civil about what everyone else says.

 

They have this weird — this conception that is not based in any kind of reality other than their own of an idea of civility, and they believe that safe spaces and trigger warnings, those are all bad because those people should just be able to listen to Amy Wax say that Black people can’t pass tests and just respect that argument and fight against it in like a — in really sterile or hermetic way, that’s what they think. And so when someone calls them a bedbug, they don’t see it as hypocritical because they say that violates those standards of civility.

 

The problem of course is that the sense of civility that is in their heads is purely in their heads and fully subjective to them. It is a form of civility that only matters to affluent middle-aged White dudes and that’s the center of civility and anything that deviates from that is uncivil and anything that is that is civil. That’s their world view. And so that’s why it’s not hypocritical, because it opens from a premise that makes little to no sense outside of their own brain.

 

Elie Mystal: I think it’s hypocritical, and I think it’s hypocritical because when we are talking about Bret Stephens, we are talking about a man with one of the biggest megaphones in the country. He writes a weekly op-ed in the goddamn New York Times. He can say whatever he wants. His free speech is among the most protected form of speech that we have in this country.

 

Versus Randall, political science professor at George Washington, like when you are trying to use your immense speech backed up by the New York Times to get the provost of this guy’s university to silence him on Twitter, it’s just — again, it strikes me as rank hypocrisy on his part.

 

Joe Patrice: The problem is hypocrisy implies some level of disingenuousness. I don’t think that these people — these people don’t see that, because they begin from this idea that it — all of these things from your perspective seem like they are the acts of a pure hypocrite; the issue is they have a superstructure to the way in which they act, which is flawed, and I would argue somewhat evil, but it is nonetheless the superstructure they operate under and through that superstructure there is nothing inconsistent about these two positions.

 

That is problematic and incorrect, but that’s the world they live in, and that’s a world that is buttressed by the way in which they get to go to the New York Times and write things that people like me don’t read, because I haven’t bothered to read any of these assholes in years.

 

But there’s — so that’s the — that’s the long and short of bugs, so good job on that.

 

Elie Mystal: Yeah.

 

Joe Patrice: So cool. So before the show started we were having a quick conversation, apparently there is an Indiana Jones 5 coming, so I thought —

 

Elie Mystal: What is it going to be, Indiana Jones and the quest for the plastic diaper? Like why would you do that? Leave Indie alone.

 

Joe Patrice: Keeping intellectual property fresh.

 

Elie Mystal: Let him rest in goddamn peace.

 

Joe Patrice: I mean —

 

Elie Mystal: Like it’s just — the dearth of ideas in this country is a whole — we could do — it’s a whole different show, it’s not a legal show, but it’s a whole different show on how we have completely obviously run out of ideas in this country, but that’s not what I wanted to talk about.

 

(00:10:02)

 

So my question and I have been asking this question kind of offline to lots of different people, I haven’t asked you yet and I am kind of thinking about this in terms of a potential article. So listeners, if you have thoughts, please email me as well, email us at [email protected] as well, because I really am trying to think about how to talk about this.

 

When, if ever, is it okay to criticize a lawyer who is now running for office based on his or her representation of clients while they were a lawyer?

 

Joe Patrice: Okay.

 

Elie Mystal: We see this so often I think in our society right now and it makes me as both a person with legal training and a person who hates Republicans, it makes me feel always a little bit uncomfortable to figure out exactly where the line is where you take a David Boies, like you take a representation of Harvey Weinstein, that seems bad.

 

By the same token, it seems critically important that the worst people in the country, including the Harvey Weinsteins of the world, have some of the best representation in the country, because that’s how we know — when those people end up in jail, that’s how we know it was fair, like that’s a key part of our process that we have, we don’t just want average lawyers, we want great lawyers defending the worst people in the world, so that when we throw them away and take away their freedom and put them in, quite frankly, horrible conditions that really nobody should have to live in, when we do that to them we at least know they got the best process, right?

 

But if I now have — and that’s fine, and I can kind of live in that world if we are talking about lawyers, right, like I don’t have to — I don’t have to vote for David Boies for anything. But when I do, when a person with a history of representation then runs for office and then I have to decide whether or not I am going to vote for them, then at what point am I allowed to look at their client roster and be like I don’t agree with the people that you represented.

 

Joe Patrice: Yeah. Well, I think there are a few — the rubric that you have to use, there is a few stages here. On one level, the question becomes what kind of lawyer generally are you, because I think there is something to be said for regardless of individual representations, you can make broad generalizations about people who are prosecutors versus people who are public defenders versus people who went into nonprofit versus people who went transactional. Those may not be determinative, but you can look at those broad decisions because they say something about that candidate. So it’s not necessarily bad that you represented X kind of person, but you can make some broad generalizations based on you made these choices.

 

Now, those shouldn’t be entirely determinative, partially because some people don’t get to be public defenders, because they don’t have the resources that unfortunately in this country we kind of require people to have.

 

Elie Mystal: Significant family money.

 

Joe Patrice: Yeah, in order to take —

 

Elie Mystal: Or other income in order to take the low paying job.

 

Joe Patrice: Right, exactly, so it can’t be necessarily determinative, but I do think there is some broad decisions you can make over the kinds of people who choose to be prosecutors versus defenders versus transactional versus working just in civil litigation at large firms. So that’s one thing you can consider.

 

I think you have to consider where people are in their career. The fact that I represented one of the banks that’s involved in a lot of the Mueller Russia investigation things when I was a second year associate probably doesn’t say much about my world view. It might say a lot about my world view if I did so as a tenth year partner. So where you are in your career matters, I think, especially — not so much in the criminal case, because there you are just kind of getting the people that you get, but certainly in a civil situation you are making decisions on who your clients are and so that probably shouldn’t matter.

 

As far as the arguments you make, I think there is a level to which that can matter, but it’s also not determinative. If you are a defense lawyer making wild claims to save your client, is part of what you said the business of making sure that every idea was exhausted, to make sure that if that person does go to jail, it was deserved.

 

That said, if you are taking bold, change the law, challenge the precedent sorts of stances in civil litigation, sometimes you are doing that — a lot of times people are doing that as a way of changing the law, not just for your client, but in ways that can have broader social effects, those sorts of moves probably should be discussed.

 

Elie Mystal: See, where I find myself getting further afield from most of my legal brethren is that I actually care a lot about what kinds of arguments you are making.

 

Joe Patrice: Right.

 

(00:14:52)

 

 

Elie Mystal: I think especially in the context of looking at potential judicial nominees. Like if you are the guy who is standing up saying like no, absolutely, children belong in cages because it’s not a violation of the Geneva Convention and it’s not a violation — if you are trying to — and the Florida Amendment shouldn’t — if you are trying to make all of these — basically, let’s be plain.

 

If you are fucking Noel Francisco, the current Solicitor General of the United States, whose job it is to defend Trump’s crimes against humanity, if that’s your actual job and you make the kind of arguments that Francisco was willing to make, then I think that I should be allowed to look at you down the line and be like no, no, no, you can’t be a judge; no, no, no, you can’t be a candidate, like not — because it’s not just that you represented your client, which is the government of the United States, is that you represented them along these batshit crazy legal arguments that no ethical lawyer should be making, because you know they are wrong.

 

Joe Patrice: Right and the question —

 

Elie Mystal: And that’s what I am saying, that’s where I go a little bit further, a lot of people will basically give Francisco a pass. If they are not going to give Francisco a pass, their issue is that he is choosing to still work there. If they are willing to give him a pass on still working there, then they are willing to give him a pass for all the crap he says while working there, and that’s where I differ.

 

Joe Patrice: See, I mean this is not somebody who has a job because they can’t make ends meet; this is a big law partner, would be able to go back to being a big law partner tomorrow if he wanted to.

 

Elie Mystal: At Jones Day.

 

Joe Patrice: But this is the situation for people like — in that situation, there is yes, he is not really locked in, and there is also the level to which the Solicitor General’s Office is part of the leadership group of the DoJ, meaning that this is a person who actually has a hand somewhat in the policy itself, which means that it is more than just someone making an argument.

 

I would be more interested in the question of the line attorney at DoJ who has to make these arguments, who is just a random, few years out of law school person.

 

Elie Mystal: Is that the woman who said they didn’t have toothbrushes?

 

Joe Patrice: Right. So that person, for instance, is in a different situation in my mind, and while I do enjoy trolling the level to which he was fully unprepared for how hostile that bench was going to be, the idea that she had to make those arguments as part of her job wasn’t necessarily the sort of thing that I would blame her for on the ground, assuming she had some way of not working there, because that’s not a situation where she is part of the leadership group making these decisions. She is just doing what she did and arguably doing it so badly that she guaranteed that it wouldn’t work, so hey, maybe she is a quiet hero here.

 

Elie Mystal: Come on.

 

Joe Patrice: But I mean she has been making these arguments — like a lot of people tie this to the Trump administration, these particular arguments are about the Obama administration who also was doing all these horrible things too; it’s just that the separation of families and stuff like that that the Trump folks have done had pushed this to a new level, but the detention centers and the bad conditions predates that.

 

So yeah, she is actually a career attorney who has been there since long before this administration and could well be for long after, who knows? But those are the people that I would be a little bit more questioning where they fall and I think it would depend on how much I felt like they could say no to the arguments that they have to make as part of the advocacy.

 

Elie Mystal: Can’t all of them say no? Everybody working in the Justice Department right now could get a job somewhere else, every single freaking one of them.

 

Joe Patrice: I don’t know — that’s not true.

 

Elie Mystal: Well, not now, because like they are — because they have been I think rightly marked with the stink of Trump on them, but certainly before.

 

Joe Patrice: No, I mean not the career people.

 

Elie Mystal: The career — well, if the career people wanted to get another job, they could.

 

Joe Patrice: Not really, not necessarily, it is a difficult market.

 

Elie Mystal: Work for the Justice Department or live under a bridge, that’s what you are saying their choice is.

 

Joe Patrice: No, I am not necessarily saying that’s a choice; I am saying though that the fluidity of the labor market for attorneys directly out of the DoJ is not as good as you would think, it is better, I mean it’s certainly better to come from there than it is from a lot of places, but that’s not to say that everybody can just pull up stakes and end up at a big law job tomorrow. There’s — I mean the market —

 

Elie Mystal: I am not saying a big law job; I am saying they could all get another job. None of them are working at Costco after they quit.

 

Joe Patrice: Right, but you also — you of all people recognize and have written about before the kind of golden handcuff situation that people are put in. These are folks, a lot of times they might be on public interest loan repayment situations where they have to work for government agencies, which makes it also harder, especially in this situation. They might be on a — because of benefits situations, not able to leave the government job at this point, because they could be without health care that does what they need it to do, there are factors. And I am not saying that this lets everybody off, but I think that you are glibly putting all of them in the same place as a Noel Francisco, which I think is problematic.

 

(00:19:57)

 

And I understand the analogy too like, I was just following orders is not a good excuse for war crimes, but this again is legal advocacy and not an actual button-pusher. This is part of what you were saying earlier, people have to make these arguments so that we know that they are right and that’s where they sit.

 

Elie Mystal: Again, that’s where I go a little bit further. I do think they are a lot closer to button pushers than mere functionaries.

 

Joe Patrice: But they don’t order things.

 

Elie Mystal: I do think they can all get other jobs and I do think that supporting an administration that commits these kinds of crimes and has this kind of —

 

Joe Patrice: They make arguments, they don’t dictate things. They are not Gods, despite what some people like to say about the unitary executive. They don’t get to do things; they just get to make arguments that then panels of judges can say don’t make any sense, that’s all they are doing, and in that case I am not particularly willing to say that the lowest of the low level are per se not able to problematic on that grounds.

 

I think Noel Francisco is a very different situation, a guy who is in the leadership group developing policy.

 

Elie Mystal: What about people who are working on, what’s the word I am looking for, what about people who are defending in the criminal justice system clear sexual predators or sexual harassers, those kind of people?

 

Joe Patrice: I mean again that goes to what you were saying earlier about part of the criminal defense side is taking on unpleasant clients. I have always thought that the —

 

Elie Mystal: Right, I am saying would you vote for them?

 

Joe Patrice: It depends on how and what those situations were. I feel like there is a difference. And one of the things I have written before about the Weinstein case actually and the difference between, there was a point where like Lisa Bloom was attached to the case very, very briefly before pulling out, and I wrote an article kind of exploring why that’s different to me than some other lawyers who have been involved with Weinstein representation and it was more about the lawyer as a businessperson than it is the lawyer as some ethical agent.

 

I don’t think there is any reason why as an attorney Lisa Bloom couldn’t have done that representation. I feel though as a woman who has built her career on representing victims, that representation now undermines her credibility to do her job and to be the advocate she wants to be, that’s why she couldn’t do it, in my mind.

 

So that said, I feel like it depends, if you are representing sexual predators because you represent lots of bad clients and that’s just one you get is very different than somebody who builds their practice around, I try to represent men who have been accused of whatever. These little nuanced differences actually matter, because when you are staking your business around the idea of I represent these kinds of people is different than just in the normal course representing those people.

 

Elie Mystal: I wrote a post I think almost six or eight months ago about the man’s law firm. There is a law firm, divorce law firm that is very — their entire advertising is very much based on defending the man in divorce settlements. And so like their advertising features a gold digger who is clearly trying to get their money or one of the ads has their successful client getting a girlfriend who is half his age. It’s very like sis, hetero, bro man representation, and I thought — and I found it offensive, but also like a legitimate business strategy. Like I got the business strategy behind the law firm, there are men who feel like this in divorce situations.

 

Joe Patrice: Sure, it’s a business strategy, but to your point, those are people that I probably wouldn’t vote for.

 

Elie Mystal: Thank you.

 

Joe Patrice: Yeah, because they have made now a business decision that betrays something about their beliefs that I think is different than they just are dyed-in-the-wool criminal defense attorneys who take clients as they come. That’s a difference and I understand that it is probably a difficult one for somebody who is not a lawyer to grasp that distinction, but it’s one that at least I have and I think seems like you and I both share on that level.

 

Elie Mystal: Now, if a Republican was here, and I will note they are not, but if a Republican is here they would say the same thing that we are saying about the man’s law firm or whatever for a lawyer who built their career defending terrorists.

 

Joe Patrice: Sure, although I mean that’s a weird one since a lot of the people defending terrorists are military lawyers at this point, because we pushed all that to military commissions. However, putting that aside, it’s their literal job, they are ordered to do that, but put that aside, I think that you could say that sort of thing, I mean certainly they will.

 

(00:24:46)

 

I think that more likely what they would do is try to make the same comparisons with people who happen to work for the ACLU or some organization like that, that says something and in fairness to them it does, if you choose to work for the ACLU you are saying something about what you believe that you don’t necessarily if you happen to take on a free speech case while you’re working at Clifford chance or something like that. Right? There’s a difference there and I get that, and it does say something about who that lawyer is.

 

Elie Mystal: I think terrorism defenders are or people do who really —

 

Joe Patrice: Not terrorism defenders, people who defend terrorism.

 

Elie Mystal: Defend terrorists.

 

Joe Patrice: Two different terrorists, yeah, that’s very different.

 

Elie Mystal: Thank you, that’s very different. That’s a very different line of work. I do think people who defend terrorists are doing some of the most important work in our narcissism. I think defending the lowest of low and the most depraved people. I think doing that work is just some of the most important work that we have and I would never kind of negatively — I would never assume and maybe that’s part of where my sliding definition is.

 

I would never assume that a lawyer who has a roster of clients who are accused of terrorism, supports terrorism. I would never assume that.

 

Joe Patrice: Right.

 

Elie Mystal: I would assume that they do not support terrorism but they have all these systemic reasons for it. I would assume that if you have a client roster full of men who have been accused of raping people, that your rape apologist. I would make that assumption and maybe that’s unfair of me to make that assumption of those lawyers, but that is — I think that’s where my mind goes. Like if you have all of these clients, you’re not doing it because you feel like these clients are being railroaded by the system, whatever you’re doing it because it’s some kind of core your rape apologist and f**k you.

 

Joe Patrice: Yeah, well, I mean those cases present a whole more granular question because you can defend people in cases like that in ways that are particularly apologists and other ways that are more hyper-technical. You could be saying, no, like — we’re staking our thing on he had an alibi and this happened and yadi, yadi, yada and there was some questions about it sent and they’re these things and whatever or you could make your case on what she was wearing like those sorts of things and the decision of how you approach the cases along that spectrum, actually can say something about what your worldview is too.

 

That’s a very granular analysis and a harder one I think to get into if you’re just trying to decide if someone can be a judge or not, but it is probably fair to say that that is a distinction that if somebody really wanted to drill down they could start making those claims on.

 

Elie Mystal: I think if you were looking at that why wouldn’t you look at that level of granular detail if you were thinking about a lifetime appointment for a judge, right?

 

Joe Patrice: Right, and I mean, I hate to be this guy, but there’s also something to be said for when they made these arguments to. Unfortunately, I’m not saying that people should get off if they did these things in the 80s when it was wildly acceptable but I am saying that if there was a point in like 1990 where they stopped doing that and never did it again, I’m willing to say that a change has occurred whereas I think sometimes was some of the re-op research I see on folks, whether it’s judges or politicians, there’s a, can you believe this stance was taken at this long ago date? And I say that’s awful but does that person continue to repeat that behavior now or not and I do take that into account because I think there is something to be said for bad things are always bad things but if you reform I’m willing to give you a little bit more benefit.

 

Elie Mystal: Look, I believe in the disavowment, right? Like, I’m even I guess more strong than you are on this, like, I proactively believe that if people who have done bad things or made bad arguments or said bad things to the extent that they are able to proactively say that what they did back then was wrong, they understand that it was wrong and they have never done that again. Either it was a one-off thing or was something kind of specific to the time. I’m at least willing to hear that argument. You know what I’m saying. Now what I’m not willing to do is the blackface thing, right? Like, when Ralph Northam, the Governor of Virginia is just like, I didn’t know the blackface was a thing. Yes, you did, it was 1982 you a**hole, right? Like, I am resistant to argument that are — it was just the times I was living in when even in the times you were living in you could have known better.

 

Joe Patrice: Right. I think that’s the key.

 

Elie Mystal: Right?

 

Joe Patrice: Yes.

 

Elie Mystal: But I am amenable to the argument that over time I have learned better and now do not do this thing that I shouldn’t have been doing back then either.

 

Joe Patrice: Agree.

 

Elie Mystal: But certainly now — and I haven’t done it from some obvious point where I learned that was before I was asking for your vote, right?

 

Joe Patrice: Yeah

 

(00:29:58)

 

Elie Mystal: So exactly in your analogy, if you’ve got a person who did these things or said these things or made these arguments in the 80s and then in 1991 was just like, you know what, I am not really going to do that anymore, and then in 2021 wants to ask for my vote. I’m like, okay, I have 20 years of you not doing this.

 

Joe Patrice: Right.

 

Elie Mystal: Right, I can work with that, right?

 

Joe Patrice: Yeah, and I think the totality of the record does matter and for all the things you said and like an important point that you made that I hadn’t made earlier which is that change has to happen some considerable time before they decide to run. I think that otherwise it seems a little disingenuous. That’s fair.

 

Cool, but I mean I think to summarize this conversation. There’s — I feel when I talk about lawyers records, I feel there’s a cadre of attorneys out there who straight-up believe it’s absolutely off-limits to question somebody in the process of being an advocate for what they did.

 

As lawyers doing what their job is, you just don’t understand, and that’s not true. I don’t think that that’s the issue. I think that there are decisions that get made by lawyers that go beyond just being an advocate, and those are fair game even if the individual act of representing people along the course of a career should not necessarily be.

 

Elie Mystal: And I think client choice matters. I think when you have and I think it is important, I think what you said is important, it is important to distinguish the people who have choice than people who don’t.

 

Joe Patrice: Right.

 

Elie Mystal: Because not everybody who looks like they have choice actually had a whole lot of agency there. But when you are at the point where you have some agency over what clients you have, then I think the clients you choose to represent says something about you, maybe not a dispositive thing about you, but it certainly says enough about you that’s worth asking a question, it’s worth asking a follow-up.

 

Joe Patrice: Yeah, oh, definitely a question.

 

Elie Mystal: It’s worth asking why you chose to represent these clients? May be you have a good reason, maybe you don’t. I’m allowed to ask if you’re going to ask me for my vote.

 

Joe Patrice: Yeah, I just think they are like if you’re — if it’s somebody in the grand theme of we are criminal defense lawyers and we defend people who commit all sorts of crimes, it is very different than the man law firm for instance, and I think that kind of a distinction matters to me.

 

I also think one of the recent stories that where an issue similar to this came up and I got similar flak was the Harvard situation where professor who like was in a job that required him to be kind of a go-to for folks who felt like they might have been attacked or something, decided to take on a Weinstein representation and Harvard was like you, you can’t have this job anymore. And people flipped out about like, huh, that’s the whole legal enterprise is based on people being able to get good lawyers, it’s like, yes, it is, but this particular Harvard post he had required him to not be publicly making arguments that undermined his ability to do this job. That is not to say that he should be fired for being a professor because he takes on this case, he just cannot do this particular dorm job that he had.

 

Elie Mystal: Yeah.

 

Joe Patrice: And that’s fine. You have obligations to different people and sometimes that means you can’t take every case you want to, but yeah, a lot of people tried to come at me with — you just don’t understand like new lawyers have to go take on clients as they come. It’s like no.

 

Elie Mystal: There was also some racial ambiguity there.

 

Joe Patrice: Oh right.

 

Elie Mystal: Where he was — was he being pushed out because of his representation of Weinstein or was he being pushed out because he was the first Black person in that position at that particular dorm. So there was lots going on with him, but I fundamentally and I said online like I fundamentally agreed with your take that as you say like — the thing about Weinstein to you, it’s such a glaring hot nuclear button, like just don’t touch it, just don’t touch it, there are other people — there are more than enough people, Weinstein has more than enough money to pay more than enough people to like get his stink on them, like you don’t have to volunteer for that particular duty you know, you know?

 

Joe Patrice: Yeah. Fair enough. All right, I think we’ve pushed this. I think there will be an upcoming article probably from you on this subject that probably sums up a lot of what happened here.

 

Elie Mystal: We haven’t pushed this as far as the Indiana Jones franchise.

 

Joe Patrice: We haven’t, and that was an amazing callback.

 

So, anyway, I want to thank everybody for listening. I hope you’re all subscribed, so you get these when they come out. You should also give reviews, write something up, it helps us move up that algorithm. You can read Above the Law all the time, you can follow us. I am @JosephPatrice, he is @ElieNYC. We are also members of the Legal Talk Network and you should listen to other shows as part of that network.

 

You should check out The Jabot, which is another Above the Law podcast, and with all of that I think we are done, and we will talk to you soon.

 

Elie Mystal: We have a sponsorship opening.

 

Joe Patrice: Oh yes, true, yeah.

 

Elie Mystal: Peace.

 

Joe Patrice: Yeah, bye.

 

(00:34:59)

 

[Music]

 

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, 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.

 

[Music]

 

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Episode Details
Published: September 3, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
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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