It may be too early to declare the legal profession back to normal, but we’ve now seen some major law firms reverse course on cost cutting and even announce some bonuses. Meanwhile, it took all of a couple hours for the in-person bar exam experiment to net its first positive COVID test.
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Thinking Like A Lawyer
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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.
Joe Patrice: Hello, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above The Law. I am joined as usual by my fellow editor, Kathryn Rubino, who is not — you’re coming to me from where are you?
Kathryn Rubino: I’m in the rugged hills of Shaolin, otherwise known as Staten Island.
Joe Patrice: Ah, well, there we go.
Kathryn Rubino: Little Wu-Tang for you on this summer day.
Joe Patrice: Kathryn’s coming to us from several decades past.
Kathryn Rubino: Oh, come on. The Wu-Tang are still a very vital important cultural touchstone.
Joe Patrice: I think that’s true. That was not the reference I was making there. But fair enough, so, what’s new with you this week?
Kathryn Rubino: I’ve mostly been listening to my co-worker Joe Patrice complain about various bar exam administrations.
Joe Patrice: It is kind of unbelievable.
Kathryn Rubino: I know we’ve obviously covered the issue of bar exams during the time of COVID on this podcast before, but I really want to emphasize to our listeners that this is a really big problem. This is still — you know the July administrations are largely, I guess, some are Wednesday, Thursday. There might be some administration still going on but even after the July administrations are over, this is going to continue until COVID is over because frankly, most state bars do not have a very good or clear plan and it’s really troubling. I mean, I think the worst problems were the July administrations because those were the jurisdictions that were like, “What? Super spreader events, never heard of her.”
Joe Patrice: Yeah. That’s the real issue. The July exam — doing an in-person exam in any way is probably a bad move at this point but the issue with the July exams is that doing so right now, delays may not be enough to fix the problem but it at least acknowledges that you see a problem.
Kathryn Rubino: Sure.
Joe Patrice: The people who went forward this week were just willing to tell the people taking the test, “We don’t care right what happens to you.” And we have since learned that Colorado has a positive test result.
Kathryn Rubino: Somebody who took the bar exam yesterday in Colorado has already turned up with a positive COVID result.
Joe Patrice: Had it while they were taking it, yeah. The reason is they did not know that they had tested positive but they had to take a test for unrelated surgery that’s upcoming and they got their results immediately after the exam telling them guess what, you have COVID, which is awful and we’re hoping that they’re okay, obviously.
Kathryn Rubino: To be clear, it’s not the test taker’s fault, right?
Joe Patrice: No, no, no.
Kathryn Rubino: They’re in an unenviable situation.
Joe Patrice: Yeah and I don’t necessarily know as though I — and you know I mean, it would be bad but I wouldn’t even say it was primarily their fault even if they did know that they had something and were asymptomatic or were getting over it or something. Even in that instance, I wouldn’t have necessarily blamed them. It’s the fault of the institution who decided to put people in this boat and create the incentives that force people to choose between their job or going in there. But putting that aside, in this instance, this person had no idea that’s kind of worse.
Kathryn Rubino: But we know that. We know that that happens a lot with this disease and bar examiners don’t care. I mean, some of them do. That’s why they’ve canceled or gone online or whatever. But the ones that went forward with an in-person July exam decided they don’t care. We know that asymptomatic transmission happens. That is a fact. We know about it. That is something you can —
Joe Patrice: And have for months.
Kathryn Rubino: You felt really, really — like not even just like, “Oh, the last call like –.” Since the beginning, we’ve been aware that asymptomatic, you can transmit the
Disease. That has been a hallmark of this pandemic, so I don’t know why all of a sudden, these bar — what has been the Colorado bar examiner’s response to this revelation?
Joe Patrice: The response was given to our colleague in the profession Karen Sloan, who got a statement from them and the statement was, “Well, we were informed that this happened but we had distancing and everything, so it’s all going to be okay,” basically. All issues that are fairly predictable but the problem is it gives lie to the whole idea that there are safe ways of administering the exam under these conditions, right?
Kathryn Rubino: Right.
Joe Patrice: These are the sorts of jurisdictions that patted themselves on the back for we’re going to take the temperature of everybody who comes in. Well, that’s the whole point that doesn’t help you.
Kathryn Rubino: When you’re asymptomatic, you can still spread the disease and you don’t have a temperature.
Joe Patrice: Right. It just isn’t safe and we’re doing this for no good reason other than to maintain a hazing ritual, which has zero evidence backing up that it does anything to ensure the public safety from bad practitioners of law.
Kathryn Rubino: Right, because that was a study, I think, came out this week that you covered that there was a comparison between —
Joe Patrice: It’s not even a study from this week, it’s a study from several years ago but somebody dug it up because it applies.
Kathryn Rubino: It made the rounds on social media this week.
Joe Patrice: Yeah, because it became increasingly clear that it relevant.
Kathryn Rubino: The study was because it compared — what did it compare?
Joe Patrice: What it did was it looked at disciplinary complaints by the population of licensed attorneys and said certain states have these many attorneys in trouble and this many don’t and as it turns out, jurisdictions that are diploma privilege-based like Wisconsin in this instance don’t have an inordinate number of disciplinary complaints. They are right in line with everybody else. So, there’s no real reason to assume like sure there are places that are lower and there are many places that are higher. The issue is they are well within the —
Kathryn Rubino: Standard deviation, yeah.
Joe Patrice: The mean basically of a regular jurisdiction, meaning there was no benefit to having a bar exam as far as protecting the public from people who shouldn’t be practicing law and I think that’s relevant when you weigh it against the idea that you have no way of knowing if somebody who has tested positive is going to be in the test completely unaware. This is one that we know about. I’m sure we will learn about more over the next several days.
Kathryn Rubino: This was shocking just because it was literally the day after the exam finished.
Joe Patrice: Yeah, I pretty much had this story pre-written and I thought it would be early next week. I did not expect it to be hours after the exam ended.
Kathryn Rubino: Hours later. That is really — and do you know, did the bar exam let people who were in the direct vicinity know that they should absolutely get a test or just everyone was given the same information or?
Joe Patrice: As it turns out, they weren’t necessarily given the information by the bar, the bar examiners and we don’t know they might have gotten that information from the bar examiners, but a person speaking on behalf of the graduate in question shared it on social media and spread the word saying, “Look, we’ve informed the bar examiners we are not positive, they’re going to let you all know, so we are telling you, you should be aware that this is happening.
Kathryn Rubino: So once again, it was on the test takers in order to keep their fellow test takers informed basically is what happened? Awesome, that makes me feel real great.
Joe Patrice: That’s been what’s happened. This is where we sit now. We are seeing increased pressure in light of all of this on the part of some different corners to put a stop to this madness, the ABA is floating a proposal that would say the ABA’s official position is that in-person exams need to be stopped.
Kathryn Rubino: Why is the ABA — we are months into this. Why all of a sudden now, there is pressure on the ABA to make this statement? It seems like that should have been a pretty early decision.
Joe Patrice: Early on, the ABA was trying to kind of have play it all ways. They are a cautious institution. They were fans of supervised practice exemptions and stuff like that, which are —
Kathryn Rubino: But wouldn’t come out and say that an actual in-person exam is a dangerous thing that we should no longer.
Joe Patrice: This draft says that in-person exams should be stopped for the time being and that online exams are also problematic unless they can be tested out. Unfortunately, both of these provisos have carve-outs to say like, “Oh, but if you’re able to do this and that, then you can go ahead.” I think it’s very much an — there’s an argument going on on Twitter between a couple of people involved with this process. The argument, I don’t think either side recognizes that what’s going on with the other side which is that the people defending this agreement are very, very optimistic about the ways in which it will be taken in good faith. They have these carve-outs that say, “No in-person exams unless the following public health checks can happen.” And the opponents say this isn’t enough and there’s a breakdown there, a cognitive breakdown because the proponents are saying, “How can you say this isn’t enough, look at how all these high burdens?” And I think from the outsider perspective, I’m looking at it and saying, “I see all that and I also remember that Missouri–.”
Kathryn Rubino: I’ll race you Missouri.
Joe Patrice: Missouri just with this situation, knowing this situation and with public health officials saying, “Don’t do it, there’s an occupancy limit. You can’t do this.” They said, “Oh, can you give us a waiver, it’s the bar exam.” And the public health officials said, “Sure, I guess.” I mean I think they’re putting way too much faith in these officials not bowing to —
Kathryn Rubino: –to pressure.
Joe Patrice: –fairly arbitrary decision making. Anyway, it’s something to worry about as we go forward. There are people fighting the fight to fix it, but it’s a thing to worry about. You know what else you can worry about? If you’re worried about a contract deadline, Contract Tools by Paper Software is the most powerful, versatile and, full-featured Microsoft word add-in for contracts. For less than a dollar a day, contract tools can help you navigate complex legalese, fix common contract drafting problems, and much more. See for yourself with a seven-day free trial. Go to papersoftware.com/trial and get started today.
What else is going on? Obviously, the bar exam shenanigans are dominating a lot of the news this week.
Kathryn Rubino: Well, I mean, not to belabor the point, but you know, and we kind of started this conversation with some references to the 90s. But speaking of the 90s, I hear that now a bar exam is going to be over email?
Joe Patrice: Yeah, well there is an option for that. That is the online exams which you would think would be the solution to a lot of these in-person exam problems are not working as it turns out. Michigan had an exam that was administered by ExamSoft and that was hacked as they put it.
Kathryn Rubino: Yeah, that was one of my favorite little tidbits is we’re getting these reports that the servers crashed, people can’t get in, can’t take the bar exam, all these issues are going on and they came out they’re like, “Oh, there’s nothing wrong with the system. We were just hacked.” And I was like, “That seems worse you guys. What’s wrong?”
Joe Patrice: I mean I don’t believe for a minute they were hacked. I don’t know, I mean maybe they were. I just don’t —
Kathryn Rubino: It doesn’t seem better though. I don’t care.
Joe Patrice: I just don’t know what anybody’s motivation to hack them would be. It just doesn’t make a lot of sense. What I think is more likely is that they were not prepared for hundreds of people to log on simultaneously and it crashed. And they’re saying it was a denial of service attack but I’m not sure it was. I mean, obviously, I don’t know they have access to that but I think a lot of us out there are highly suspicious of the idea that this was an outside attack as opposed to just the platform not being prepared for primetime, which in either event, as you put it when you said that’s worse, in either event, it doesn’t bode well for the October exams where there’s currently planned a bunch of online exams using this exact platform that are much, much bigger jurisdictions than Michigan.
Kathryn Rubino: So, good news.
Joe Patrice: Indiana was using a different vendor. They were using ILG. They were trying to get the exam off on Tuesday. As of last Friday, the system crashed while trying to run a test. They delayed the exam until August 4th. Then earlier last week, at the point that you’re going to hear this I guess, they were unable to make it work, so they cancelled the exam for the time being as an online thing and then put out a new plan to hold the exam as email. They will just email people questions and people will reply with answers.
Kathryn Rubino: Makes my little 1994 heart very happy I suppose, but it does seem a little bizarre.
Joe Patrice: Yeah, no. They will have no proctors or anything and no ability to do that and they’re therefore going to make it an open book exam.
Kathryn Rubino: Which I mean frankly, we’ve said on this podcast before but it’s far more analogous to the actual practice of law than trying to memorize all the exceptions to hearsay, right? Like that’s just an —
Joe Patrice: Absolutely. My hope is that this is going to be kind of an absolute grading situation as opposed to some kind of scaled or curved test, which would make it really unfortunate if everybody now has open book and it’s curved. Hopefully it’s not and a lot of people can pass. I don’t know why you don’t just give diploma privilege at that point but whatever. Meanwhile, Nevada was planning to use ILG as well and they had been kind of cagely moving their exam around so that Indiana would go first and they would get the benefit of those guinea pigs. Now, they’re out of an exam platform. ILG is intended to be the online provider for Florida and I believe New Jersey. So, we’re looking down the road at two very big jurisdictions that are planning at this point to use a platform that has not worked so far.
Kathryn Rubino: Yikes town. Well, I mean, the other kind of big story is also about COVID hubris. There was a very large Australian law firm, HWL Ebsworth, which you may not have heard of but it employs over 850 attorneys in Australia, over 1,200 employees total and in the midst of all of the working from home orders and closures beginning in early March, their managing partner said, “No, no, no, we’re not going to close.” They came out and said, “Well, we think it’s bad for people’s mental health to work from home and not the office.” So, they mandated that everyone had to come into the office every day. Our friends at RollOnFriday had some insiders at the firm and they said that from the insider’s perspective, it seemed like it was more of a technology issue and that their tech wasn’t really ready for prime time or for working from home as the case may be. So, they continued to have everybody come into the office for months and now there, I think it’s their Melbourne office is the site of an outbreak. There’s an outbreak and I think — what are they calling it? A key outbreak site, that’s what local health officials are calling the office. So that’s a really great idea.
Joe Patrice: Not great. And this is going to be an issue and remember, that’s a country that is more on top of things than this one.
Kathryn Rubino: Sure, yes. I think it just goes to show you that as good or poor as whatever leadership and countrywide leadership may be, you still have to make smart decisions based on actual facts and not just what you want them to be, the same way the bar examiners, you should be forced to deal with the fact that they are suborning super spread or potential super spreader events. It’s the same sort of situation where people just think that they’re, “Well, it’s not going to happen here, why would it happen here?” And then a couple months later, health officials are calling you a key outbreak site. It’s not good news.
Joe Patrice: Speaking of “it can’t happen here,” have you checked, I assume you have because I assume, you’re an avid follower, have you checked Donald Trump’s Twitter page right now because he has a new pinned tweet at the top.
Kathryn Rubino: I don’t know if it’s the pinned tweet but I believe it was today when he said that we need to postpone the election?
Joe Patrice: Yes, that is now pinned at the top of his profile. It’s not like while there are some who tried to play it off as, “Oh, he’s just making a joke.” Pinning tweets to the top is probably not how you make jokes. So yeah, he has asked to delay the election. Can he do that?
Kathryn Rubino: I mean, he can say whatever he wants, I suppose. Can he postpone the election? I don’t think he can.
Joe Patrice: The correct answer is no. That is right.
Kathryn Rubino: I can’t see where that power would come from. I’m sure Bill Barr will come up with some argument as to why he can and will, but I can’t. Not that I can see.
Joe Patrice: It’s actually fairly outside of his power. It is a congressional statute that says that the exam — ha, I’m already down that road, no — that the election will be held on the day that it is held and it can only be changed by a new statute. I am assuming that the House of Representatives under its current leadership would not do that. I will also say that Mitch McConnell has straight up said that they will not be delaying election already. It seems as though there is not much appetite for that but unfortunately, that’s where we are now. Everyone’s getting a little crash course in how the powers operate.
That said, there is a guest to the program on a few occasions, Professor Rick Hasen has a book out, which everyone should read. We talked to him about it when he first came out with it back seems like forever ago, but I think it was only February.
Kathryn Rubino: It was one million years ago.
Joe Patrice: But he has a great book out about the ways in which people can undermine the course of the elections.
Kathryn Rubino: This seems like it’s right at the top of the list of ways to undermine the election.
Joe Patrice: Yeah, I mean this is kind of a silly one that can’t come to pass but there are other options. There are ways in which one could say that with 50% of the vote in and none of the mail-in ballots counted, have governors of certain states just go ahead and certify the results based on not having all those results in, things like that, which would be really troubling for democracy. They are technically legal options though and so that’s why Rick’s book is worth a revisit.
Kathryn Rubino: It’s a pretty scary time to be alive right now. Yeah, I mean I don’t mean to bring on some existential dread right now, it’s just supposed to be a podcast, it wasn’t supposed to be this deep but here we are.
Joe Patrice: As I have a t-shirt that says embrace the existential dread, I support that with a kitten on it.
Kathryn Rubino: Why wouldn’t it and have a cat, that seems accurate.
Joe Patrice: I mean I feel like that’s what defines existential dread and I say that as a cat person.
Kathryn Rubino: Fair enough. But I like that we managed to talk about existential dread without talking about sort of — and I know one of our regular columnist, Liz Dye, has written a lot about this but the sort of situation in Portland, you’re from there, it must be horrifying to watch from a distance.
Joe Patrice: Yeah, sure.
Kathryn Rubino: Okay, you’re talkative are we, or were you not aware that this was a podcast and we talk? That’s sort of a —
Joe Patrice: I am aware.
Kathryn Rubino: It’s what we do here.
Joe Patrice: I mean, it’s just kind of at this point barely over. The governor has negotiated withdrawal of the DHS forces from the occupying forces from the city. Looks like things are going to start getting back to normal hopefully. Obviously, that’s —
Kathryn Rubino: Also, assuming that those forces don’t just get deployed to other American cities.
Joe Patrice: I mean, I guess there’s that too. That’s where that sits. Another lesson in separation of powers, much like we discussed when we were talking about mask laws a few weeks back.
Kathryn Rubino: Oh right, that happened.
Joe Patrice: I guess that wasn’t on this show, that was on our special reports show but that’s that. I just was fully — based on the things you said, I was prepared to engage in a deeper discussion of Nietzsche and existential dread.
Kathryn Rubino: What are your thoughts about Nietzsche?
Joe Patrice: No, go ahead, you were going to say something.
Kathryn Rubino: Well, I was going to kind of switch it just a little bit of COVID-related slightly good news, at least. There were reports this week that a number of big law firms have either reversed in whole or in part their salary cuts that were instituted sort of at the height of the pandemic, March-April timeframe. Some firms have started either reversing those in their entirety. Ogletree is another law firm that they have decided to give out bonuses for particularly high billers. Also Baker Botts, is also doing bonuses and they also push back on some of their cuts. Those bonuses in both instances are sort of hours-based or productivity-based, which kind of sucks because one of the big problems, of course, is that there’s no work to do. It’s not sort of the fault of the associate if there’s no work in their department at the moment. But it is at least a sign that the financial health of the firm is much more stable and has much more positive outlook than we had a couple months ago. It’s a sign at least things are starting to turn around even if they’re not as good as they could be.
Joe Patrice: Yes, it’s exciting news and usually we have a round of follow the leader whenever people start announcing bonuses, so it’s going to be interesting to see if anyone feels compelled to follow the leader on this one.
Kathryn Rubino: Sure, my kind of take on that is that we’re not going to see the sort of typical follow the leader bonuses because the very top of the big law he did not cut salaries. The biggest of the big law firms for the most part stayed away from salary cuts and I think that these bonuses are not going to really get anybody over the top of where they would have been absent a salary cut. I don’t think there’s really any pressure on those who haven’t cut salaries to do it and I think those that have cut salaries and may not be in a position to make those additional bonuses. I don’t think anyone’s going to kind of get the — they’re not going to harm their sort of planning to make a bonus. I don’t think unless they actually do have the money to do it, so it’ll be interesting but it’s a little bit different as much as we like to say bonuses, who’s going to have bonuses next. I don’t expect Cravath to make bonuses because they never cut their salaries.
Joe Patrice: Although there is a tier of firms that did and so just follow the leader around them.
Kathryn Rubino: Sure, and I certainly hope for the sake of the folks who had to deal with the salary cuts that it does come to that and I do think it portends good things for the overall health of the industry and those firms, which I think is important. So hopefully, we get there but it’s not going to be as feverish as past year bonus announcements have been.
Joe Patrice: With that said, another week of legal news in the can I guess.
Kathryn Rubino: Yeah, it’s halfway through the summer. It’s only going to get better from here, right? Please tell me right.
Joe Patrice: That seems like something you can’t really promise.
Kathryn Rubino: In like a month from now, you play that clip and you’re like, “Ah, she had no idea.”
Joe Patrice: Well, thanks everybody for listening to the show and also thanks to Contract Tools by Paper Software for sponsoring the show. You can check them out at papersoftware.com. You should be subscribed to the show so you get new episodes whenever they come out.
You should be reading Above The Law. You should give reviews to the show, stars, write something up, just having text there like helps the algorithm know that we’re a legal podcast that people want to hear. You should be following us. I’m @josephpatrice on Twitter. She’s @kathryn1. You should be listening to our other shows. We have a special reports show about COVID and the law called the ATL COVID Cast. We also have, The Jabot which Kathryn hosts talking about diversity issues in the law and there are many, many shows more than I can name off the top of my head on the Legal Talk Network that you should be checking out as well. And with all that said, we will talk to you later.
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