As Law Firms Self-Reflect, State Bar Exams Double Down

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Transcript

Above The Law – Thinking like A Lawyer

As Law Firms Self-Reflect, State Bar Exams Double Down

06/09/2020

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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.

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Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above The Law. I am joined by Kathryn Rubino. How are you?

Kathryn Rubino: I am good. How about yourself?

Joe Patrice: You know, fir, fair.

Kathryn Rubino: Yeah. I mean I guess the way our society appears to be breaking down is not awesome.

Joe Patrice: Things aren’t good, but you know, we are plugging along here at Above the Law. We are still talking about the legal industry so long as we have laws and that’s just all we can do about it.

Kathryn Rubino: That seems basically like all we could do.

Joe Patrice: Yeah, no. So we are actually entering the reopening phase of our pandemic response; it seems as though a lot of other jurisdictions around the country have already gone through this stage so I am eager to chat with people about how that’s going, I have been doing that over the last few days, like what to expect.

Kathryn Rubino: I mean I think it’s interesting particularly as it applies to like the legal industry, because so many lawyers really are able to do their job remotely, what’s the difference if you are up all night writing a brief at home or in the office. So I think that there is definitely some of the well, we don’t want to rush it, work seems to be going just fine from the outside kind of mentality. But I do think that as more courts open up or get more comfortable doing remote trials or hearings or whatever, obviously then that has that kind of spiraling or snowballing effect in the industry.

Joe Patrice: Speaking of courts opening up, not to throw a plug to our special report, but we do record a supplemental podcast that’s just on COVID issues called the ATL COVID Cast and this week we actually had a really interesting show about courts opening up and how jury pools are going to be completely different because —

Kathryn Rubino: Yeah, it’s crazy and yeah, definitely listen to it, people have done actual real research about this, but by and large it looks like jury pools are going to be a lot more friendly towards corporate interests at least in the short-term as we start to get back.

Joe Patrice: Yeah. It’s just one of those crazy unexpected —

Kathryn Rubino: I never would have thought it. And as we were kind of going through the data and the rationale why and all that, I mean it makes sense, it does, it makes so much sense, but if you are representing someone who is a corporate defendant in a case, you want to push for that trial to be as soon as you can really, it seems pretty overwhelming the evidence.

Joe Patrice: Yeah, a very interesting show.

Anyway, so we have plugged for that one right there. If you want to go out and try and find it, it’s on the usual whatever.

Well, with all of that said we should get into what we are here to talk about today which we have a couple of topics because there are a couple of topics that still dominate the news. What have you been working on the most these days?

Kathryn Rubino: Okay. Basically 85% of my time and the other 15% has been coming up with trivia questions of the day has been tracking what Biglaw’s response to the George Floyd, Breonna Taylor, Ahmaud Arbery murders, deaths have been as well as the protests in general. Lots of Biglaw firms and corporations in general, right, Ben & Jerry’s put out an amazing statement basically calling for the end of white supremacy and specific policies that needed to be changed and that was awesome. Yeah, I will definitely buy their ice cream; I mean I was going to do that anyway, but makes me feel really good when I buy their ice cream.

And a big thing for companies to deal with is like how are they responding and I think that there are two main reasons why. I mean the first is how are your employees doing, because law firms employ thousands of people, right, many of them are being directly impacted by the unrest that we are seeing and reaching out to make sure that they are — to see how your employees are doing, what resources they may need, etc., I think is a very important necessary thing for any company in order to sort of deal — that’s like the soft side, the HR kind of side of running a major business is making sure — especially in law firms, where — I mean what does a law firm have, it only has the lawyers that it has, it’s people, that is their asset. So it’s really important I think for law firms to reach out and to make sure folks are doing okay.

And the other part is to, both as a signaling measure for its clients, but also to see what law firms can do to make it better. Obviously there is a lot of systemic racism and injustice in the world and lawyers are uniquely situated in the fact that they have the ability to navigate these systems and whether it be by pro bono or whether it’s financially supporting grassroots or other nonprofits that work toward social justice, there is a lot of room for firms to do stuff that on balance make the world a better place.

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Joe Patrice: All right, so you have been getting a lot of statements and compiling them, are there trends that you are seeing in these statements, like good ones, bad ones, what makes good ones, what makes bad ones?

Kathryn Rubino: Yes. It absolutely has run the gamut. There are some great statements from firms that are well positioned in terms of, they already had really good pro bono programs in place and they are either supplementing those.

Orrick created a program where they are going to have five attorneys, they are going to pay five attorneys to work on social justice matters for a year, sort of a fellowship kind of a program, which I think is really great, and it’s at least five people I guess I should say, as well as expanding opportunities for not just their attorneys, but their staff as well to participate in organizing movements. So that’s kind of like on the good side, firms that are giving money, that’s another big one.

Cooley gave $450,000 to related causes to work towards equal justice, which is great.

Then on kind of the bad side, I got an email from a reader who was very upset and disappointed that their firm hasn’t said anything, quite a poignant email and it just said, I assumed that must mean that big law is not saying anything at all because it’s a business and whatever and then I went to your website and I saw that dozens of firms have come out with statements. And people are feeling that and to the extent that big law firms care about recruitment and care about getting the best and the brightest in their doors every year, that’s something that’s super important.

And kind of the third category, they have been quite a few statements that folks at the firm have characterized as the All Lives Matter of firm statements, whether it be that several statements have been called out for their seeming inability to use the word black; maybe relying on the phrase persons of color or just diversity generally. So that’s been a part of it.

Other firms have kind of said, well, really we are all diverse and we support everyone’s diversity, whether you are left-handed or black, that doesn’t feel right, right now.

So yeah, we are cataloguing them all right now and that’s kind of the stage that I am in before I kind of organize my thoughts and rank and grade everyone’s responses. And we really have seen a variety of responses.

Brad Karp at Paul, Weiss has if anything been over-communicating with folks at Paul, Weiss. I think he sent four or five emails to everyone and he even in his most recent one I think apologized for kind of flooding folks’ inbox, but it’s important things that he is pointing out. In the most recent one, they are supporting pro bono efforts and doing all the right stuff on that front, but they also called attention to the story of actual activists that are — what they are doing and how that relates to Paul, Weiss’ mission generally.

They talked about Pauli Murray, who was a civil rights activist and a former Paul, Weiss Associate. So there is a wide variety I guess of responses that are out there and I think that we are getting a very clear look at firms’ cultures when you break down and look at these statements.

Joe Patrice: Well right, and that transitions to the real crux of it from a legal industry perspective; obviously it’s important for a lot of perspectives, but this podcast — to tie it to what this podcast is about, I will say that it turns to that culture question and whether or not this is a firm that you feel comfortable working at or sending, if you are not a lawyer but on the business side, sending business to or if you are in law school or a law professor, sending your students to, these statements as important as they are to the outside world just generally, they send a message about what one’s firm believes and that has impacts for the way in which it’s perceived in the industry, not to — again this seems like I am kind of turning down the importance of what’s going on, but it’s true that it’s an important question and when you say something that’s incredibly —

Kathryn Rubino: Shallow.

Joe Patrice: Shallow, that’s a good word for it, then that’s the message that you are sending the world, and even if you don’t necessarily believe it, it’s important to communicate these ideals in a positive way or in a way that you want I guess maybe —

Kathryn Rubino: That you are willing to defend.

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Joe Patrice: In a way that you are willing to defend, in a way that you think builds the firm that you want. Paul, Weiss has historically been very aggressive about saying that what they want is a more socially-oriented firm, generally speaking and hence that’s a really important statement for them.

We saw this a few years ago, there was an unfortunate incident where they promoted no people of color basically to partner one year and within — like out of the gate they were as a firm effusive about how that was an outlier, it doesn’t represent anything intentional about what was going on with the firm, it was just kind of like where that class happened to be. They made strides to change that.

But they were out front to explain what happened, because sometimes even if things aren’t — even if the picture is not great, the answer is not to sweep it under the rug, but to get ahead and say we are cognizant of the issue here, we understand what to do about it, we have a plan to fix it. That said a lot about the culture there and it also was indicative of how that culture had developed that when this event happened the associates kind of flooded our inbox, meaning that they really had succeeded in recruiting associates who cared about these issues because they were quick to point out the problems.

Kathryn Rubino: I mean it’s a weird thing to have to say to law firms because you presume that they know a lot about language and words and there is a lot of writing obviously in the profession, but words matter, and the words that firms are choosing to describe what’s going on right now in their response to it really, really matter, and perhaps it’s more highlighted when I am looking at 50 of them at a clip, but it’s true and it’s real and it’s out there and people really need to sort of think about what they mean to say and what they are actually saying.

I think that when you actually start looking at them and comparing them and contrasting them, particularly for folks that are maybe thinking about going into big law or lateraling or law students who are going to law firms or people who are hiring, law firms, you should pay attention to these things and you can see a difference. It’s not like oh well, we put out a statement; well, did they put out a statement, what does the statement look like, what kind of concrete — is it words, are they putting money behind it, these are all questions that I think are really important.

Joe Patrice: Yeah. And so completely switching gears, you were saying about putting money behind things, the economy is still not exactly back to where one would like it and we are still seeing unemployment and law firm layoffs and furloughs and it’s not just the firms, it’s also companies, but the important thing to remember is that you have got to keep your firm going, because there will be another side of this and if you want to get through it all, you might need to make some cuts.

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So changing gears completely to talk about the not yet lawyers in this world, Bar exams have been not canceled across the board, which is what I think a lot of people assumed would happen when there was a pandemic that advised people not to crowd into small rooms. But while there are many that have delayed until the fall and there are many that are — several now who are talking about online exams against the wishes of the NCBE who coordinates the Bar exam nationwide —

Kathryn Rubino: Do you want to like talk about that for a minute?

Joe Patrice: Sure.

Kathryn Rubino: You have kind of been handling more of the Bar side stuff, I have been kind of handling more of the big law stuff, you kind of have to divide and conquer when everything is going to hell, right?

Joe Patrice: Right.

Kathryn Rubino: So forgive me if this is sort of rudimentary, but why are we not doing an online exam? It seems to me like the big concern would be oh, cheating, whatever, but fundamentally being a lawyer is an open book exam, right, so I don’t really see there being a problem if they have access to resources as they are taking the Bar exam. Frankly, the way that it’s based just on memory that you promptly forget is kind of weird and anachronistic if anything.

Joe Patrice: Well, actually I haven’t even touched on that point, but that’s an excellent point, the actual practice of law is almost never and by design something that you make snap decisions.

Kathryn Rubino: Or should you? That’s the opposite of what you are supposed to do.

Joe Patrice: And so yes, no, there is a very good argument to be had that the whole concept of a Bar exam is stupid on that front and I had not even touched that in my coverage. I have been dealing with other arguments against it, but that is one to add to the arsenal.

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The NCBE has done some good work over the last several years of nationalizing Bar exams in a lot of ways, creating a Uniform Bar exam which is valuable to the extent that for good or ill the laboratories of democracy that our states are not really laboratories of democracy as much as people who just passed the same laws drafted by lobbyists and handed to them.

So as law is increasingly becoming smoother across jurisdictions, there’s not as much need for some weird individualized State Bar exam, and so what the UB does is offer something that tests subject matter competency across jurisdictions and another good benefit of it is it provides career portability. If you pass with a certain score in one State theoretically you could walk to another and have that afford you access to that jurisdiction, if you are moving or something like that. So that’s a good thing. The uniform — the kind of nationalizing this has been a good thing.

Kathryn Rubino: Okay, that seems good, that seems good.

Joe Patrice: That’s it. As with most monopolies in the world there is little to no impetus to change. If they control everything as it is, there’s no reason to change. They don’t want to go through the process of figuring out how to work an online Bar exam. Even though the law schools all did it with some failures obviously, but with varying levels of success law firms — not law firms, law schools figured out how to do this over this pandemic.

Kathryn Rubino: Well, I mean, you can still do it on the computer, right? Like people take the Bar exam on a computer like that was the whole exam soft thing, I mean, I know it’s not online as opposed to, but still you don’t think that that’s in there accountable.

Joe Patrice: It’s online proctoring systems and stuff like that, yes. No, there are plenty of ways in which this could be handled online. But they don’t want to do that, so they are saying that that’s bad and they argued against the people pushing for a diploma privilege plus option where people would not even have a subject matter test, their diploma would be sufficient to say that they understood the subject matter and then beef up the backend stuff, the ethics requirements, the continuing legal education so on and so forth, perhaps even including a mandatory supervised period where a lawyer would have to watch you work.

So those sorts of programs they released a whole fairly offensive statement claiming those were bad and Utah responded to it by saying, no, we are going to go ahead and good for them.

There are few states, Massachusetts first said they were considering it, they haven’t pulled the trigger yet but they are considering it. Indiana and Michigan have both said they are going online and the NCBE’s response to this is, you can do whatever you want but it’s not going to be portable and we will just make sure that no other State will let you transfer your scores, which — I mean, it’s one of those things where, yeah, these states have made an agreement that the UBE is something that’s transferable between them, but there’s nothing stopping these states other than the attempt to stamp out dissent that an NCBE press release is, there’s nothing to stop these states from saying, you know what, 2020, we had something of a pandemic and we wrote our own exam and Indiana and Michigan I feel safe saying that if you are — they passed your exam then they are fine with me and vice versa. And other states who aren’t even doing — who are still sticking with the regular Bar exam could do the same.

Ohio, I mean, I can’t imagine Ohio and Michigan getting along on anything, but Ohio could say we saw what happened and we trust Michigan wrote a sufficient Bar exam that if somebody passed their online exam then we will count that as subject mastery for the purposes of waiving into or not waiving in, but applying for Ohio Bar membership. That could easily happen and should be what states do.

The NCBE however is trying to stamp that out by saying, well, these are — they don’t waiver from our plan because this is what we do.

Anyway given the situation a lot of people have delayed, some people are talking about online exams but most haven’t and that that’s why we have delays. There are some states who predominantly in the South who have decided as a matter of whatever that they are going to go forward with the Bar exam in July, despite the fact that students can’t go to their Bar prep classes and there’s uncertainty and the whole thing may not even be able to be pulled off, but they are going forward with it in July despite what’s going on and you would think that that would be a dangerous thing that they wouldn’t want to do.

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Kathryn Rubino: Yeah, it seems it, it seems it. I mean, I remember taking the Bar exam and I mean, I presume it’s mostly lawyers listening to this or folks in law school but there’s like a bajillion people jammed into the Javits Center in New York all trying to take the test, like it’s not — I can’t imagine a socially distant version of that.

Joe Patrice: Yeah, so they’re moving forward, but the new thing that cropped up over the last week is states deciding that on the one hand they are assuring everybody that they believe that conditions will be sufficient that they can have the test in July and nobody will get hurt and simultaneously they are drawing up paperwork and making people taking the Bar exam sign away that they will hold the Bar exam, and they will not hold the Bar exam liable, if they turn out too much.

Kathryn Rubino: That’s not great.

Joe Patrice: Yeah, I mean what it really speaks to is the hypocrisy of the moment, like sure, that I mean, we don’t sign waivers about what if the building the Bar exams and burns down, which is always a possibility. It is a remote possibility but it is a possibility. But we don’t have waivers for it, because it’s a remote possibility. The fact that they feel the need to have liability waivers is indicative of the fact that they really don’t think that this is safe for them to be doing in July, that’s why you do it, that’s why a demolition derby has a liability waiver, things crash and then go up into the stands, they know that and that’s why they have these things.

The fact that these states are doing this should give lie to the whole process and should be a reason to call off the whole process, but they aren’t doing it and the more we can cast attention on the fact that these states are trying to pull a fast one like this, it’s worth it.

One State, Mississippi was kind of the first State that we caught trying to pull this off and some experts have pointed out that Mississippi courts are not particularly kind to liability waivers, which means that this may well turn out to be somewhat academic of an exercise which then raises the question whether or not it’s –

Kathryn Rubino: Why? Yeah.

Joe Patrice: Well, I mean, maybe it’s a performative issue spotter for the students to point out, but it may be the first quote, maybe it’s just like — it’s the exhibit and then the first question is, please look at your exhibit and point out all the problems, I don’t know.

Kathryn Rubino: That would actually be amazing by the way.

Joe Patrice: Yeah, I would support that, but North Carolina and Virginia have both also done their version of waivers. They aren’t making people sign things but they’re including in their material for the Bar exam that you merely showing up signifies that you agree not to hold us liable, so don’t know as though they can really pull off, there are some legal experts who’ve been asked about this who say that that probably isn’t sufficient in these situations, but we’ll see.

Kathryn Rubino: It’s going to be a fun time. I love — well, not love, I mean these times just keep on getting more-and-more interesting. You think you’re done and oh no, we’re going to also ask you to waive all liability for the Bar exams, like oh, okay, it’s not just shitty, it’s extra shitty, good news.

Joe Patrice: And we’re seeing, like back to the law firm side of things we’re seeing, the early austerity measures which were mercifully more in the furlough area than in the layoff area, although both happened.

Kathryn Rubino: Yeah, I mean I would say though that the majority of the austerity measures have been salary cuts.

Joe Patrice: Those mostly non-terminal decisions and we’re seeing now firms come back around and institute new austerity measures, which is a terrible sign that with a — they don’t foresee things getting much better in the short term, so.

Kathryn Rubino: Yeah, I mean, I think that if anybody who is at a big law firm that has had a pay cut, if you think it’s going to be over before the end of 2020, my guess is no. Some firms haven’t cut salaries at all, but I think the ones that have, it seems highly unlikely that they will be able to put them back online before the end of the year.

Joe Patrice: Interesting. I feel that’s right or at least there will not be a upping to bring everybody back to whole, like the cuts happening during these months are going to be cuts that just happened and even if this ends and you get bumped back to your regular salary, you’re not getting this money back in bonus for.

Kathryn Rubino: Yeah, I mean, I think that only a couple of firms even mentioned that as a possibility when they were making their initial austerity cuts, and yeah, I would not be holding my breath for the money you’ve lost during this time.

Joe Patrice: Yeah, well, it’s not great, but —

Kathryn Rubino: Things are terrible and awful?

Joe Patrice: Yeah — no, law is terrible. But we are here.

Kathryn Rubino: We are still here.

Joe Patrice: We are still here having fun, making fun of lawyers, so you should be listening to us, subscribing to us, reading Above the Law, following us on social media.

(00:25:59)

I’m @JosephPatrice, she is @Kathryn1. You should be listening to the aforementioned COVID Cast, you should listen to The Jabot, her show, you should listen to all the universe of shows on the Legal Talk Network that we aren’t hosts of because they’re all great too, even if they aren’t quite as funny as we are.

You should check out — if you have any interest in legal-tech, you should check out the Legal Tech web show that Bob Ambrogi does on Fridays, because I’m one of the panelists. It’s kind of like happy hour for legal-tech. It’s like the weeks over and —

Kathryn Rubino: And you all just sit there and get drunk, right? That’s been my assessment of the podcast.

Joe Patrice: I mean, I don’t know about that. I mean, I definitely drink during it, so yeah, actually that’s the — you should come for the legal-tech news and stay to try and guess what I’m drinking each week.

Kathryn Rubino: Do you do any drink recipes that I’d be very interested if everyone also —

Joe Patrice: No, but another panelist on the show does have a separate drink recipe thing, and Niki Black has been doing a cocktail recipe show, so that’s —

Kathryn Rubino: Very cool.

Joe Patrice: I mean, we’re all trying to keep entertaining. And I guess with all of that we’ve said all of our piece. Thanks to Logikcull for sponsoring as always, and yeah, we will check in next week.

Kathryn Rubino: Bye y’all.

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