Lawyers are pulling guns over facemasks? That… seems excessive. But here we are staring into the COVID abyss again. Austerity measures continue throughout the industry, lawyers are getting edgy, and a new assault on “the law that built the internet” issues from the White House.
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Above the Law – Thinking Like a Lawyer
Guns, Germs, And Section 230 Internet Regulation
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: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. I am joined by my cohort here; no, that’s not the right word, a member of my cohort.
Kathryn Rubino: Colleague.
Joe Patrice: Colleague is probably the right word.
Kathryn Rubino: Yeah, that’s a pretty easy word really. It’s a good thing you don’t write for a living.
Joe Patrice: That’s fair, that’s fair. You know the best part about that is that I know that’s the joke I use on you and now —
Kathryn Rubino: You do all the time.
Joe Patrice: As far as the public knows it’s your joke to use against me.
But nonetheless, I am joined by Kathryn Rubino. How are you?
Kathryn Rubino: I am good. Well, I mean you know everything is awful and we are in the middle of quarantine, but besides that it’s fine.
Joe Patrice: Well, I mean not too much longer. It looks like small phased reopening are beginning.
Kathryn Rubino: True, we are getting there, slowly but surely. But that just means that we are going to get the COVID later, not that anything is really going to be fixed.
Joe Patrice: Well, right, that is an unfortunate side effect of the way in which we have been talking about the disease, the curve flattening phenomenon was never meant to bunker down until it’s over, but rather will just drag this out longer and I feel like people are going to start getting upset.
Kathryn Rubino: Until the hospitals can deal with it.
Joe Patrice: Yeah, a lot of people are upset with the idea that everything is not perfect yet and unfortunately that was never really the plan.
Kathryn Rubino: You are not wrong, you are not wrong here, but it is also true that — I think that we all want it — it’s been a really long time that we have been dealing with this, I think that a sense of normalcy and a feeling like it will be okay is not — it’s not weird that people are yearning for that, but I think that perhaps the way people are expressing that is not the most productive.
Joe Patrice: Well, we learned from a recent survey that just came out that half of Americans would not get the vaccine when it gets developed.
Kathryn Rubino: I mean I don’t know what to say. If there were — I mean I wish there was a vaccine, I would get it tomorrow. I would wait on line in order to get it. Whatever you need me to do, whatever, give me a vaccine, that would be amazing, I would love it.
But I mean people who don’t want the vaccine, like I don’t know what else to do for you. I feel bad for any children of people who are making decisions on behalf of folks who don’t want it, but other than that, like I don’t know what to tell you, I don’t know what to tell you. There is literally — there is a solution that you have chosen to ignore based on nothing, no facts.
Joe Patrice: Yeah.
Kathryn Rubino: Well, I was going to say though that when people are not dealing with this in the most productive of ways, I was going to talk about a story that we have covered here at Above the Law recently that a Vermont attorney was mad about social distancing rule, there is apparently some — it’s a quaint little Vermont town or something.
Joe Patrice: Are there non-quaint Vermont towns?
Kathryn Rubino: I guess that’s fair, I guess that’s fair. I think that like by law or state constitution, everything has to be fairly quaint. I mean listen, there is like an apostrophe in the middle of the store name, to be like a shortened version, it’s really cute.
Anyway, it’s an ice cream shop. They sell like maple ice cream. There was a sign on that shop like everyone needs to socially — be socially distant and safe and blah, blah, blah, and this attorney allegedly went up to the sign and started shaking it and then according to the police went into the store and brandished a gun at this clerk before getting angry about the whole thing and storming off. And police have arrested her for reckless endangerment and the State Supreme Court is like you can’t do that. You need to — they have — at least on an interim basis suspended her until she is able to respond to the allegations.
But it’s — I mean obviously it’s there. She denies that she brandished a gun,. but that story — if true, that story is not — does not put you in a great light.
Joe Patrice: No, it’s not an encouraging story and it’s —
Kathryn Rubino: It is not.
Joe Patrice: But it’s a testament to how frustrating it can be to be a lawyer and deal with all the stress of being a lawyer and just add this on top of it.
Kathryn Rubino: I guess.
Joe Patrice: But I mean — because like lawyers have to — they are worried about their clients and everything, but they have bills to pay too. And if you are out there and you are trying to cut costs, you are not alone. In today’s climate a five-figure e-discovery bill per month is steep. Don’t pay that. Use Logikcull to reduce expense and control your discovery process. Get started today for only $250 per matter and they will waive migration costs from competing platforms. For more information, visit logikcull.com/ltn. That logikcull.com/ltn.
Kathryn Rubino: That’s pretty smooth. I am pretty impressed with the way you kind of worked that into the conversation.
Joe Patrice: I try, but back to the Larry, Darryl and Darryl up there.
Kathryn Rubino: I do like that your pop culture references are from the 70s or early 80s at best, I mean that —
Joe Patrice: That is very solidly mid to late 80s.
Kathryn Rubino: You are very comfortable being an old man.
Joe Patrice: I am comfortable being cultured. I don’t know as though that says anything about age.
Kathryn Rubino: I mean you watched it when it was on, right? We are referring to the Newhart show.
Joe Patrice: Yes, I did.
Kathryn Rubino: Which I only know because you are obsessed with it, to be fair. I am not myself old.
Joe Patrice: Sure, sure, sure.
Kathryn Rubino: I am younger than you are, which is very important to remember.
Joe Patrice: As a writer for a legal blog, you should know to put the word allegedly in there.
Nonetheless, yeah, no, it’s a show that takes place in Vermont. There is not a lot of Vermont pop cultural references to draw on, I had to go there. So this woman pulled a gun, allegedly.
Kathryn Rubino: Allegedly.
Joe Patrice: See how — you are getting it.
Kathryn Rubino: Yeah, there is some difference. I know that I am — I have seen your driver’s license, I know I am younger than you are.
Joe Patrice: See again, why are you still fixating on this, we have moved past it?
Kathryn Rubino: Have we? It’s interesting to use the word we.
Joe Patrice: Yeah. Anyway, so gun-toting lawyers, obviously not the best look for an attorney in this era.
Kathryn Rubino: Not a good time.
Joe Patrice: Have you come across other stories of lawyers behaving badly in the era of the pandemic?
Kathryn Rubino: I don’t know, have I? Are you thinking of a particular one? I feel like that’s kind of the weird part about right now. Everyone is kind of — everyone has their own crosses to bear during quarantine and I am not trying to make a comparative statement at all obviously. But I will tell you, the COVID-19 has been a very busy time here in Above the Law land, writing way more stories than I would normally do because there is just so much news and information out there in terms of layoffs, in terms of salary cuts and just in terms of like all sorts of craziness happening in the world that I must confess I don’t always remember everything that I wrote, even as recently as today.
Joe Patrice: Yeah, I guess the other stories that I was thinking of were stories of attorneys acting out their most petulant attorney lifestyles of demanding responses and so on, even though obviously no one is working at 100% at all and turning on a dime and we have had judges who have had to step in and say knock it off.
But it’s a concern about what the practice is like in this era and not to pitch our other show as we are doing this, but this is a show that you and I also host; obviously normally you are not on this show, but it’s great whenever you do choose to join us, but we also host —
Kathryn Rubino: Nice little backtrack there, I appreciate it, I appreciate it.
Joe Patrice: Yeah. But we also host a special report that just is dealing with the kind of —
Kathryn Rubino: Impact of COVID.
Joe Patrice: Impact of COVID on the legal profession and in our most recent episode we talked to a divorce and family law attorney about just the ways in which that practice is changing. And it’s very interesting and not to focus on that specifically, but the different ways in which people are adjusting to this and the new thinking that’s going into it.
One of the conversations on the ATL COVID cast that we had with the family law attorney was about how a lot of divorce lawyers in his experience now are working together almost, rather than being adversarial, working together to come up with creative solutions to allow family — the wheels of family law to move forward even though —
Kathryn Rubino: We are in the middle of a pandemic.
Joe Patrice: We are in the middle of all this. Like how do you evaluate the worth of an asset that has now tanked because of the economy? Well, maybe we do some kind of dynamic scoring of what it should have been worth, dot, dot, dot. And it’s that creative decision — creative solutions that they are coming up with in conjunction with each other just to help both their clients thrive is interesting. There is a nice thing to say about the cooperative model having its moment.
Kathryn Rubino: So it probably will not last.
Joe Patrice: Oh no, of course not.
Kathryn Rubino: I mean the other thing too that we are seeing is certain — especially in bigger law firms, so kind of the opposite end of the spectrum of the family law issues that firms that have lots of different practice areas under one roof and one umbrella are having different ways that they are coping with different levels of capacity for different groups.
Some groups are very — bankruptcy folks are very, very busy right now. Some firms are even looking to expand into their bankruptcy practices, but other specialties are not very busy.
I know that there was an email that went around from a Kirkland partner who was like you have to be ready to volunteer to everything. You should be at full capacity. If you are not, this is not a gravy train and you will not be happy at the end of the year, kind of this veiled threat about either bonuses or reviews or whatever, and a lot of that came across pretty tone-deaf because not — and not everyone has the ability necessarily right now in the middle of a pandemic to contribute in the same ways that might be typical in big law.
You don’t know whether someone is ill themselves, if they have had a family member be ill or if they have five children at home or they are alone with one child, you don’t necessarily know everyone’s immediate pandemic reality and trying to make these decisions and trying to say that this is the model that everyone simply must follow otherwise you are in big trouble is really problematic.
Joe Patrice: You know, that’s an interesting transition to some survey results that we have gotten that are very interesting, which I don’t know, are you tracking that —
Kathryn Rubino: I have not seen this. I have not looked at it yet.
Joe Patrice: That women associates appear to be more satisfied with their jobs now under the pandemic than they had been beforehand.
Kathryn Rubino: That seems just nuts to me.
Joe Patrice: Yeah, it does seem counterintuitive, although I mean maybe that’s a lot of the lessons that we are learning from this is that counterintuitive results keep coming up, but you would assume that being forced to work from home, probably without help to the extent that women associates have families without the help of childcare would make things much worse, but as it turns out overall satisfaction among women associates are up almost a whole point in the scale.
Kathryn Rubino: That’s crazy. I don’t know, all the stuff that kind of has come out and there was I think a Washington Post article about how women are having to pick up more and more of the at-home responsibilities, they are the ones that are juggling kind of their home life and their professional life, and even to the point where lots of women are feeling the need to step back from their jobs entirely during the pandemic. But I also wonder if perhaps it’s just that people are finally being a little bit more understanding about when things go crazy and they actually are somewhat empowered to say like, I can’t do this by 3 because my child is in the middle of whatever, but I will get it to you by 6, and people are like oh, okay, that’s fine, but they are finally empowered to have those conversations because of the pandemic.
Joe Patrice: And that’s actually what the survey found largely.
Kathryn Rubino: Well, look at that, look at that, it is intuitive.
Joe Patrice: When they inquired why on a 1-10 scale, women satisfaction was up almost a whole point, the reasons that tended to come back were they felt as though for the first time in a long time their employers were much more —
Kathryn Rubino: Understanding.
Joe Patrice: –understanding of what was going on and they felt very much empowered to make these claims, that in a lot of instances when you have got to take off early to pick up somebody from school or whatever, women tried to downplay, do it quietly, not rock the boat, whereas now with everybody saying stuff like that, they feel empowered to do so, and they are finding out, at least under the current climate, though potentially it would be true normally and it’s an internalized problem from years of socialization, but firms are more or less saying, oh yeah, no, that’s no problem. Go for it.
Kathryn Rubino: Sure. Sure. Okay, you are going to get this to me before, whatever, yeah, that’s fine, that works. I will just do it at that time.
Joe Patrice: See and that’s one of those issues that’s similar to the things that you discuss on The Jabot, your podcast.
Kathryn Rubino: Oh, look at that.
Joe Patrice: Yeah. No, yeah, your podcast about —
Kathryn Rubino: It’s almost like you listen to my podcast.
Joe Patrice: I do listen to your podcast; I feel as though you don’t listen to mine a lot.
Kathryn Rubino: Really? I mean why do you think that?
Joe Patrice: Because I ask you did you listen to it and you say no. I feel like that’s the reason that I come to that conclusion.
Kathryn Rubino: I like how you are giving me no wiggle room there.
Joe Patrice: Fair enough. I mean that’s what happens when you fact check, which is the same as editorializing, which is the same as censorship, at least that’s what I hear, yeah.
Kathryn Rubino: That is what I have heard.
Joe Patrice: Yes, we are right now — by the time this episode comes out, this will probably have played itself out a million times through the rapidly moving news cycle, but we are right now at the very beginning of the era of the Executive Order banning Twitter, not exactly what it did, but more or less. So we are living in a world where you may or may not receive a tweet that this show has come out. We don’t know where it will be.
Kathryn Rubino: Well, I know you covered the latest Executive Order, which is supposed to get rid of Section 230 Immunity, is that right?
Joe Patrice: Not quite, but in large part, yeah. The argument the — because obviously Executive Orders can’t take down acts of Congress generally.
Kathryn Rubino: Sure, because of the whole checks and balances.
Joe Patrice: Right. Though, I mean, there are Republicans in the Legislature trying to pass a law that would do that, but the crux of the Executive Order to the extent it has any legal like to stand on is an idea that the administration futz with what constitutes good faith. Right now Section 230 says, online platforms say Facebook, say ‘The New York Times’ Comments section, whatever it is, if somebody rolls into those pages and says something that is illegal or creates liability of on a civil kind, that’s not Facebook’s fault, that’s the person who said its fault. Just because they provide that forum doesn’t mean it goes to them.
Obviously with the kind of and not really in the Statute, but it has grown out of it a quasi negligence standard sort of, not really, but an argument that the platform should be making good faith efforts to avoid these sorts of problems.
It’s not okay to just say, I run a website where you can defame whoever you want, it’s more you run a website, somebody comes on and defames, but you’re making whatever efforts you can by having rules and terms of service that say don’t do that.
Kathryn Rubino: Right.
Joe Patrice: Doing whatever moderation you can, understanding moderation of everything is probably impossible.
So, there’s good faith standards in there and what the Executive Order seeks to do among other things, but primarily is to futz with what good faith means in order to avoid what it calls anti-conservative bias or what the administration calls that.
Kathryn Rubino: Which is all obviously caused because Twitter put a fact check out for one of Trump’s tweets.
Joe Patrice: Right. But the problem is, and my article says this, and as does our friends from 00:17:11 they have a — make the point in a similar way. The thing to remember about this is that it actually has nothing to do with Section 230. There’s an attempt being made to tie the two together that to suggest that what Twitter did is somehow a violation of what Section 230 should look like, so therefore we need to change Section 230.
The problem is what actually happened has nothing to do with it despite that —
Kathryn Rubino: The conservative talking point?
Joe Patrice: Despite what Above the Law alum Kayleigh McEnany is saying on TV –
Kathryn Rubino: Ah, oh.
Joe Patrice: Yeah.
Kathryn Rubino: We should make a formal apology to all of our listeners for —
Joe Patrice: Oh, I have —
Kathryn Rubino: On behalf of Above the Law.
Joe Patrice: Yeah. I have for years.
Kathryn Rubino: Uff, sorry we started that.
Joe Patrice: Yeah. Despite that those aren’t really tied, because the fact-checking move was something that Twitter did, which means it was something that they were speaking, which never was the point. It has nothing to do with 230. 230 is —
Kathryn Rubino: When someone else is speaking using their platform, right?
Joe Patrice: — they are not liable for someone else. Yes, so there is no real connection. There’s just a manufactured attempt to add a connection because they want to punish Twitter by taking away this liability shield which is the undergirding of the entire Internet.
And so it isn’t a really a fair tie, I’m not sure how the weekend media cycle is going to work. Obviously, you will all be hearing this on the back end at the weekend and we don’t have the ability to see the future, but I have a fear that a lot of that nuance is going to be skipped over and everyone is just going to —
Kathryn Rubino: Of course, I mean I think that, I mean this has been particularly true, I think during the pandemic, but I think that in general the inability to deal with nuance has been incredibly problematic.
Joe Patrice: And one of the other points that I make in my article about it, if you want to go back and read that, listeners is, the unfortunate thing that we face as a country is if you do care about the Internet and the ability of platforms to be interactive without being killed by a death of a thousand cuts of people filing frivolous lawsuits because of what third parties do on your site, there’s not really anyone you can turn to because Joe Biden has already made the statement that he views it as a priority of his hypothetical presidency to revoke Section 230 immediately.
So you have two sides who both are trying to undermine this law, and the really unfortunate thing is, no matter how problematic Facebook and Twitter might be in some of the policies that they have and how they kind of institutionalize blind eyes that they can turn to things, raise problems.
The revocation of 230 would require them to pay some more legal bills but they can probably survive, the people who die are the small Internet players. Many years ago we at Above the Law had a Comments section and we famously got rid of it and there were very good reasons that we got rid of it that you and I were both there for, but one of the reasons that is unheralded why we got rid of it was we foresaw a growing group of cutting across party lines who wanted to attack the concept of Section 230 and we realized that we would occupy the sort of world where if we started getting hundreds and hundreds of lawsuits based on people being jerks in our comments, that would be far — that could be debilitating to our ability to function whereas it wouldn’t be to Facebook, and that’s why years ago we got rid of it and we are well past Statutes of Limitations for all that sort of stuff even if it mattered, but you can’t really get to that stuff anymore because it’s all gone.
Kathryn Rubino: Yeah.
Joe Patrice: And we occupy that space of a big publication but a big niche publication were read by lawyers and law students and legally interested people around the country, but that’s not Facebook who is read by everybody.
Kathryn Rubino: Exactly.
Joe Patrice: And so getting rid of Section 230 would be a death knell for those sorts of mid-range to smaller players on the Internet and I think a lot of people rightly believe that those are the folks who keep the Internet vibrant and keep the Internet from becoming kind of totally a closed box run by four or five media companies.
Kathryn Rubino: It’s fair.
Joe Patrice: Anyhow with all that said we didn’t necessarily need to go down that tangent, but I feel like it’s an important legal story that’s out there and one that we assume will keep going for the next few days.
Kathryn Rubino: I imagine.
Joe Patrice: Any new layoffs this week?
Kathryn Rubino: No, we haven’t. I think that the firms that felt an immediate need to do it were kind of quicker on it, those that are trying to kind of not make any austerity moves are in their position and we are just kind of waiting and seeing.
Joe Patrice: There are some stealth layoff issues going on that we have heard of though, right?
Kathryn Rubino: Yeah, we have heard a few folks suggesting that firms are using their review process in order to lay off large amounts of attorneys, it’s a tactic that became very popular in 2009, 2010 when the — during the recession and we are seeing it raise its head again. These are folks that maybe haven’t received a formal complaint about their performance previously or may have had issues but it’s a sort of thing that would have — it was easy at a firm to just kind of let it go on and let it slide in good economic times, but now they are using any excuse in order to thin their ranks and thin the number of people that they are paying.
Joe Patrice: It’s a pernicious way of thinning the ranks in order and it’s done to maintain good public relations. We couldn’t lay people off, we just happened to determine that we needed to fire 5% of our workforce, just totally spontaneously just decided right now that —
Kathryn Rubino: As part of our normal review process we have had separation from a number of associates, I think that’s how some firms like to say.
Joe Patrice: Well, it seems like a normal part of their process. For instance, we did the same thing in 2009, we just do this every 10 years and so. It’s really problematic, and the really awful thing about it is it’s hard to track because it’s deliberately meant to be obfuscatory, and it’s also meant to be isolating to the associate who never can feel as though they lost their job —
Kathryn Rubino: Because of the bad economic condition.
Joe Patrice: Because of bad times they also don’t understand necessarily that others have lost their job too, these conversations usually told like you are the problem, get out, they may not know that seven other people in the office who they — in different practice areas that they don’t really know also got laid off, and so they feel alone and blame themselves.
Kathryn Rubino: Isolated and blamed — yeah and the truth is, oh, look it, you mean we went from 50 associates in this office to 5, and it —
Joe Patrice: Right.
Kathryn Rubino: That’s odd.
Joe Patrice: No, and that’s the story that at Above the Law we are trying to stay on top of though it’s very hard because you — it’s designed to be hard.
Kathryn Rubino: By your very nature, yeah.
Joe Patrice: Yeah, but if there are listeners out there who see this sort of thing happening, please let us know at [email protected] because —
Kathryn Rubino: Absolutely, please.
Joe Patrice: — that’s the only way we can track it. I think sometimes people feel as though as a reporting outfit we just have eyes and ears everywhere.
The problem is, you are our eyes and ears, you people out there who are experiencing it and we need to hear from you and that doesn’t mean we can run with everything once we hear at once, we obviously need to get confirmation and more stuff, but more information is better than no information and we —
Kathryn Rubino: Exactly.
Joe Patrice: — operate, you are an anonymous tipster, we will we — I have gone so far as to take things that I am handed by somebody saying, here, you can print this, and I will edit what they sent me to make sure it’s — I am like —
Kathryn Rubino: You make sure all of the — yeah.
Joe Patrice: Yeah, I am like, you say this but I mean, this is something that’s probably going to give you a way.
Kathryn Rubino: Right you say X number of people in this office and I am like, well, maybe we will just give a range or make it obvious that —
Joe Patrice: Or people who use obvious colloquialisms that not too many people use the exact, I mean that was the lodestar thing in the Trump administration when they are trying to figure out who wrote that, who uses the word “lodestar” all the time? But that sort of stuff, we will do, but we are committed to getting the information out there without exposing our tipsters. So by all means send us that sort of information.
Kathryn Rubino: Well, this was fun.
Joe Patrice: Yeah.
Kathryn Rubino: Thanks for having me on.
Joe Patrice: I mean, you are ostensibly a host. You are on the website, you are like you just often blow me off and don’t do it?
Kathryn Rubino: I do I blow you off or is that how that works?
Joe Patrice: On the other hand, I mean, Ellie I think is still listed and he has pretty clearly left the podcast.
Kathryn Rubino: Very much not, no longer a part of this, yeah.
Joe Patrice: Yeah, someday maybe we should get him on as a special guest.
Kathryn Rubino: Maybe, maybe, maybe.
Joe Patrice: So with that said, thanks. We covered a lot of ground, glad for everybody to join us. If you are not already subscribed to podcast, you should do that, you should give it reviews, you should give it stars and write words about it and just help everybody else find it.
Go down to the — not now but when you are allowed to leave your house, go down to the street corner and yell out loud that everybody should listen to Thinking Like a Lawyer or whatever it is when that day comes.
You should be reading Above the Law always, you should be following us on Twitter if it still exists by the time you hear this I am @JosephPatrice and she is @Kathryn1. You should be what else, yeah, that’s —
Kathryn Rubino: I think this is it.
Joe Patrice: Oh no — no, what am I talking about? No, of course that’s not it. You should be listening to our other podcasts, the ATL COVID Cast which deals with the COVID-related stuff, The Jabot, which Kathryn hosts about women and diversity issues in law firms, you should be listening to all the offerings from the Legal Talk Network which are too numerous dimension by specifics.
You should check out the Legal Tech Roundtable Conversation, I don’t even know what it’s called per se, but it’s a webinar chat that is every Friday at 3:00 that a lot of legal-tech people have and I am frequently a panelist.
You should be liking all those things and you should check out Logikcull, who sponsored this episode, and then I think we covered everything.
Kathryn Rubino: Thanks everyone.
Joe Patrice: Yeah, so there we go. Thanks.
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