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Episode Notes

America’s bar examination authorities have turned to threatening Character & Fitness repercussions for their critics marking a new, darker phase of the bar exam drama. How in the world did it come to this? Also, we talk about Kanye’s double agent attorney and PACER gets a slap from the federal courts.

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Transcript

Thinking like a Lawyer

That Took A Threatening Turn

08/12/2020

[Music]

Intro: Welcome to Thinking Like A Layer 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.

[Music]

Joe Patrice: Hello, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above The Law. I am joined by a popsocket enthusiast, Kathryn Rubino.

Kathryn Rubino: Hey, how are you Joe?

Joe Patrice: Good. Good.

Kathryn Rubino: I mean you don’t use the popsocket on your phone and I feel like you’re missing a trick. Like there’s a clear benefit. I mean maybe my hands are hands just smaller than yours, well they are, but maybe that’s part of it. But its’ so convenient.

Joe Patrice: Yeah.

Kathryn Rubino: And you can add different colors or designs or patterns. I personally prefer a Mini Mouse popsocket.

Joe Patrice: Yeah, all right.

Kathryn Rubino: Listen, just turn point in quarantine. These are the things that we care about to keep ourselves sustained.

Joe Patrice: Fair enough.

Kathryn Rubino: You’re so dis ducibus, it’s hilarious.

Joe Patrice: Yeah. Yeah. I have a case for my phone. So it’s similar, but then I just bought the case for my phone and then that became the case for my phone and then I was done.

Kathryn Rubino: I have a lot of issues. I have a lot of issues with that statement. And I also have numerous cases because not every case that I like turns out to be as effective as I thought I was going to be and so I have different options.

Joe Patrice: Well that’s definitely good.

Kathryn Rubino: I mean also, you might want a different color palette for your phone depending on what you’re doing, what you’re wearing.

Joe Patrice: No. No I do not.

Kathryn Rubino: Okay. You know, just because you think a certain way doesn’t mean that you’re right.

Joe Patrice: So anyway, this is the internet’s most serious and professional legal podcast as we’ve been told. You don’t need to fact-check that. But we have been told that, although I didn’t believe it when I heard it. But we’re here to do a quick recap of the week in legal news as we’ve been seen it. We’ve had some changes around the legal world. Most importantly we’ve gotten through one cycle of bar exams. We’re looking into September exams coming up and we’re already starting to see some states realize that based on what happened in July that that’s a dumb idea.

Kathryn Rubino: It’s almost like somebody should have said that to them the entire time.

Joe Patrice: Yes, and we also are seeing —

Kathryn Rubino: I think that we keep on coming back to the subject of bar exams on this podcast, but it’s for a bunch of really good reasons. First of all, the various bar examiners don’t appear by and large from backing away from that requirement. There might be the sort of like moving the chairs around on the Titanic sorts of changes that you ware diligently covering. My hats off to you for actually trying to keep every state’s various requirements in line and upon to date on our websites that folks actually what’s going on. That was a compliment. So that’s your allotment for probably a solid 10 days now.

Joe Patrice: Fair enough.

Kathryn Rubino: Okay.

Joe Patrice: Okay good. I will duly note that.

Kathryn Rubino: All right. But you know there are a lot of things going on in the world of bar exams. It’s an incredibly important test if you’ve gone to law school and would now like to actually practice and have some ability at some point in your life to pay back the $100,000 plus worth of loans that you’ve likely taken out. So it’s a big deal and it is changing rapidly. And from my perspective, it seems like a lot of folks who are in charge just keep on putting their foot in their mouth, don’t they?

Joe Patrice: Yes.

Kathryn Rubino: I mean you got real, real annoyed this morning about some stuff that was going on?

Joe Patrice: Yeah. I think that’s a fair way of putting it.

Kathryn Rubino: I mean you don’t usually have emotions. So even anger is an emotion.

Joe Patrice: Okay, fair enough.

Kathryn Rubino: See, I had a counter balance complimenting you earlier. It’s a give and take.

Joe Patrice: Yeah. So the things you need to do in order to be a licensed attorney is you need to take the bar exam.

Kathryn Rubino: You do pass it, not just take it.

Joe Patrice: You need to take it. You also have to have taken the MPRE ethics test.

Kathryn Rubino: Correct.

Joe Patrice: And now there’s a new requirement which is you need to have not crossed the people who run the NCBE.

Kathryn Rubino: Well that seems a little strange?

Joe Patrice: Yeah, that one seemed like it doesn’t really belong.

Kathryn Rubino: Seemed like somebody tried to slip that past the goalie there. I don’t really know what’s going on?

Joe Patrice: Yes. So the new requirement was unveiled during a virtual law conference that happened yesterday as we’re recording this where the head of the NCBE outlined that she feels that she and her colleagues at the NCBE are being treated unfairly, uncivilly and unprofessionally and she says that it borders on harassment. No, she’s not saying that it’s harassment, but she’s saying it borders on.

Kathryn Rubino: Listen, I’m a woman who writes on the internet for a living. I’m quite versed on online harassment and it didn’t seem like that was what was going on. I think that she actually had some example of what she called harassing or borderline harassing behavior. But my recollection was that it wasn’t that. What was it?

Joe Patrice: She cited a Yale law practitioner’s tweet which is a fun little parody account out there, if people are looking for somebody that just makes some jokes about the internet. What this particular tweet said was that she was going to appear at this event and that people should definitely show up, register for it and do their part to ask her tough questions on the back end of it which seems entirely reasonable. This is what she identified as a tweet that was problematic.

Kathryn Rubino: So having people ask her questions about the NCBE’s policy is problematic?

Joe Patrice: After looking at this tweet, she said this is what’s representative at least to her of online harassment which it is (a) not, and (b) it’s indicative of what was really going on. This is not a statement that she feels there’s genuine harassment out there. It is a designed targeted statement put there to chill speech on the part of people who would criticize what the NCBE is doing. And among the things the NCBE is doing from by all accounts, they are in opposition to a motion being proposed at the ABA to just call upon states to take into account public health concerns when it comes to in-person bar exams. They’re opposed to that.

Kathryn Rubino: Well, I mean it’s not like there’s a pandemic going on?

Joe Patrice: Yeah. It’s there’s a level of targeted cruelty on their part, just a refusal to understand what’s going on in the world and they are just pushing forward, and they want anybody who’s willing to suggest that they should be questioned about this to go away. Earlier in the week, another NCBE leader had written a document which it said that, “Questioning the relevance of the exam is not the examinee’s job. That the examinee’s job is to pass it.” It’s just a refusal to care about any of these criticism.

So this was a threat. It was a threat. As I put it, it’s only not a threat if you’re the sort of person who believes a mobster saying, “Nice store you got here, shame if something happened to it.” It’s just encouraging your various business endeavors. That is not what’s happening. In the reality-based world, this was a threat and it was targeted at these critics and it is unfortunate that it’s come to this and if there’s anything that’s unprofessional going on in this, it is not the applicants who are criticizing the exam, it is the fact that the leadership of this organization feels the need to make veiled threats of people’s licenses.

Kathryn Rubino: To me, another point I think always has to be mentioned — I think we might have said it in the past, but always seems to mention when you’re talking about the NCBE leadership, is that they’re obviously pushing very hard for a bar exam despite the folk’s public health concerns and are staunchly against the move in various jurisdictions for

diploma privilege. And yet they themselves are the benefit of diploma privilege, right?

Joe Patrice: Right. It is at this point I think so oft said that everyone knows this.

Kathryn Rubino: It needs to be said every time.

Joe Patrice: But yes.

Kathryn Rubino: It needs to be said every single time.

Joe Patrice: The people who are making this push are themselves folks who never took a bar exam and were granted their law licenses based purely on their diploma.

Kathryn Rubino: Because Wisconsin had diploma privilege for a real long time.

Joe Patrice: Yeah.

Kathryn Rubino: And that’s who these folks are. I mean it needs to be said because the stark hypocritical nature of what they’re saying, it doesn’t get old. It doesn’t stop being astonishing and particularly in the middle of the pandemic.

Joe Patrice: It’s very bad. Yeah and so that is the kind of strong arm tactics that we had this week which is not ideal, but it’s becoming par for course. We’re seeing some folks rethink the September exams. We’re seeing some questions being asked about the efficacy of online exams after what happened at Michigan and the Indiana and Nevada situation. We’ll see where this goes, certainly looking at COVID statistics, it does not look like we’re going in a direction that’s going to make September look much better.

Kathryn Rubino: And I actually think that one of the better skills that a pandemic can teach you is flexibility and learning that just because you’ve made a decision doesn’t mean you need to stay with that decision in the light of new information. And I bring this up because that’s something that we’re seeing now in terms of law schools and classes.

Georgetown University Law Center recently said that they originally in June had said that

they were going to go in for classes. Everyone would have at least some in-person exams,

but now they’ve kind of done in about-face and said, “Oh, oh. No. No. No. No. No. No. We’re definitely going to go online.” And they’re even giving a 5% tuition cut for those who’ve been financially hurt by the pandemic. So it’s kind of a one-time thing, so don’t expect it next year.

Joe Patrice: So you’re thinking that they looked out and they just kind of understood where things were and they were worried about going forward with school?

Kathryn Rubino: Yes.

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Kathryn Rubino: So yeah, that’s been what’s going on I guess in the way that COVID has been messing everything up.

Joe Patrice: It’s interesting that they’re cutting tuition. Now we’ve had a conversation.

Kathryn Rubino: I mean it was a COVID Cast.

Joe Patrice: I don’t think this podcast, but a different podcast where we explored whether or not law school should be giving tuition cuts and we ultimately concluded they probably shouldn’t.

Kathryn Rubino: Right.

Joe Patrice: A 5% drawback though, I think is probably fair.

Kathryn Rubino: Appropriate, yeah.

Joe Patrice: A lot of people are claiming that if it’s going to be online, it needs to be a more extreme cut like 50% and stuff like that.

Kathryn Rubino: And like how are they going to pay their professors.

Joe Patrice: Right. There are some costs here that need to be recouped and you are getting a law degree at the end.

Kathryn Rubino: Which is worth the exact same. No one is going to look at your Georgetown degree at the end and say, “Oh but you went in 2020.”

Joe Patrice: Right exactly.

Kathryn Rubino: If they’re going to say, “Wow, you went in 2020, good job.”

Joe Patrice: Exactly. So that’s why we’ve more or less taken the stance that if there’s any cuts, they would be very, very modest.

Kathryn Rubino: Sure.

Joe Patrice: You also theoretically wouldn’t be paying for room and board. So you’re already getting a bit of a deal.

Kathryn Rubino: Got to live somewhere, but yes.

Joe Patrice: Well true, true, but you don’t have to pay down.

Kathryn Rubino: Some cost and all, yes.

Joe Patrice: Yeah. So with all that said, so that’s catching us up on law schools today. Before we got sidetracked in that, I was going to say that a new development when it comes to costs is that — did you know that PACER still costs 10 cents a page.

Kathryn Rubino: That’s hilarious, right? Like that is, somebody made a rule in 1991 when the internet was crazy, in a lawless place and everything seemed very, very challenging and that’s 10 cents. I don’t know, that’s about how much it would cost to do a photocopy in the office, right?

Joe Patrice: In fact, it was, I believe six when it started. It has gone up over time.

Kathryn Rubino: Sure okay, but you know, again it seems like something that is not really.

Joe Patrice: Well the Federal Circuit agrees with you. In a new decision, the Federal Circuit affirmed the lower court that said that, “PACER is charging people too much and it’s a rip-off. It is taking this money and spending it on programs that are not related to its mandate.” Basically the mandate is that this money is supposed to be used to ensure public

access to the courts and the folks behind PACER were taking this money and creating a bunch of other programs that theoretically would need separate authorizations. They were just using it out of this like a giant slush fund based on your interest in a complaint in some random district. So that was exciting. We don’t know how this will play out necessarily. I mean they are filing cert petitions and stuff over this.

Kathryn Rubino: Sure.

Joe Patrice: But one hope would be that we would see some sort of a reduction in the cost of PACER so you wouldn’t find yourself constantly paying $3 bills every time you need some

loquacious judge’s opinion.

Kathryn Rubino: That’s fair, nonsense fair point.

Joe Patrice: We’ve got bar exams. We’ve got law schools. We’re talking about PACER. What else is happening?

Kathryn Rubino: Well another kind of big story for us this week was the Kanye West presidential campaign which it’s hard to say without laughing. But it was revealed that a number of GOP operatives who either have worked for President Trump’s re-election campaign or otherwise very involved in mainstream GOP causes are the ones who have been going around and trying to get Kanye on the ballot in various jurisdictions. That would have been an interesting politics story, one we might probably would not have covered. But one of the folks involved Lane Ruland is actually a big law attorney who like, I think was 10 days before filing paperwork in the State of Wisconsin to get Kanye on the ballot there, also filed some court filings on behalf of President Trump’s re-election campaign.

So as I said at the time, like you’re a smart person, you can put these all together. You can you can follow the breadcrumbs here and it’s pretty clear that the higher-ups in the Trump campaign and the GOP in general have decided that the best way for them to win is to make sure that there are more candidates that will hopefully in their mind siphon voters away from Joe Biden.

Joe Patrice: It’s interesting and indicative of exactly where the party is on its outreach to black voters that its logic is, “Kanye is black. I’ll assume they’ll vote for him” which is not how these things work.

Kathryn Rubino: Yeah sure. Especially now, I mean there’s a lot going on with Kanye, right? It’s not just his political aspirations which may or may not be a good thing, but there’s obviously a lot going on there as well.

Joe Patrice: So is your point that there’s some sort of conflict ethically in some of the stuff that these lawyers are doing? I mean technically I suppose it’s not representing an adverse party just because they’re advert, petitioning to be adverse on a ballot I suppose?

Kathryn Rubino: I mean that’s the sort of conflict that potentially could be waved though, right?

Joe Patrice: Yeah.

Kathryn Rubino: So if the re-election campaign was like, we do not consider that to be a conflict of interests.

Joe Patrice: That’s fair.

Kathryn Rubino: That’s something that could be waived, right? So I don’t think that there’s an ethical problem necessarily. I do think that it’s something everyone should be aware of and I think that they think it absolutely is a political trick that the folks who are trying to put these big law lawyers or lawyers trying to pull off and I think people need to be aware of that. I think that’s true.

Joe Patrice: I mean that’s a good point that that conflict could be waived. It could be a situation where a malpractice sort of situation if Kanye is not aware of the conflict that exists I suppose.

Kathryn Rubino: Potentially.

Joe Patrice: We’re spitballing. This is a section of the show that we’re calling Issue Spotter where we are just trying to figure out any kind of problems. But no, I think that’s a fun thought experiment to go through because it’s not like an adversarial court proceeding, but it is definitely a situation where the advice being received by one party is problematic.

Kathryn Rubino: I mean I guess we don’t know exactly the nature of the advice that

the Kanye West campaign is receiving. We know that they are being assisted in getting with signatures and filing that paperwork with state officials, right? So I’m not sure that even if — hypothetically speaking, the West campaign was unaware of the joint representation or

the representation for the president’s re-election campaign, I’m not sure that it would have materially changed the actions that were taken. So I’m not sure that there’s really much of a conflict even in construing everything in the worst possible light, I’m not sure there’s a conflict even then, but again something we should absolutely be talking about.

Joe Patrice: Yeah, interesting. What else has been happening?

Kathryn Rubino: I don’t know, man. Feels like we just talked about a lot of stuff these days and weeks are still being really weird. Like I feel like, “Are we in August already?”

Joe Patrice: We are.

Kathryn Rubino: That seems very strange.

Joe Patrice: So we are definitely in August. We are trying to figure things out as best we can. We really did not come into this with much of a plan today.

Kathryn Rubino: Well you came in this.

Joe Patrice: I blame you, it’s okay.

Kathryn Rubino: Of course you do.

Joe Patrice: Yeah.

Kathryn Rubino: You came in this morning so hot about the NCBE issue that I was like, “Oh, well that’s easy. We’ll just rift on that half hour” because you came in real hot.

Joe Patrice: I mean yeah. Well I mean it’s frustrating. It feels like an attack on the whole profession when you start saying that, “We’re going to retaliate against people offering criticism by messing with their licenses.” I mean that feels like a core attack on the profession as a whole.

Kathryn Rubino: Okay, break that down a little. I’m not whatever, but it seems to me like petty defenses of folk’s position and authorities is very much in line with what a lot of folks

think about lawyers.

Joe Patrice: No. I mean it’s arguing that you will prevent people from getting licenses for

expressing advocacy seems like a core attack on the concept of being a lawyer. You can disagree with them, but you can’t be trying to prevent them from performing their livelihood. It’s just really problematic and I think it’s indicative of maybe — as I say maybe

maybe the NCBE does have a point, maybe of these people who run the NCBE had taken a bar exam, they wouldn’t be so unprofessional.

Kathryn Rubino: Well, diploma privilege does not mean you avoid the character that is parsed of licensure.

Joe Patrice: Yeah, no. But that was my deep concern about it. It’s bad. People need to stand up to it.

Kathryn Rubino: It’s also just kind of galling in the sense that it flies in the face of a lot of public health information, a lot of their positions on this. Whether or not it’s fair to say that, “Criticizing the NCBE is problematic” put that to one side, when the NCBE is going against a lot of public health information when there’s a lot of good reason to suspect that bar exams are potential super spreader events, we know for a fact that several people who’ve already taken the July exam had the coronavirus were diagnosed shortly after taking the exam.

Joe Patrice: Well we know one, yes.

Kathryn Rubino: Yeah and so given that set of information, it seems even more problematic.

Joe Patrice: Yeah, it’s not good. I think it’s incumbent upon attorneys to keep the pressure up on this and I think incumbent now on State Bar Examiners and the State Bar Associations and City Bars. I think everybody in a position of authority at this point needs to start.

Kathryn Rubino: State legislatures are taking this up.

Joe Patrice: Yeah, we have gotten state legislatures in New York to pick this up, but it’s important.

Kathryn Rubino: State Supreme Courts.

Joe Patrice: Yeah and we’ve had a mixed bag of the response to it and it’s bad. I just hope — if there’s any good thing to come out of this threat, it’s that it hopefully unmasks for those people who are still kind of sitting on the fence and thinking, “Well, was this really important?” I mean we now have the entity that has a financial interest in keeping this going coming right out and intimating that they are willing to take action against their critics which that should be off-putting enough to make you — even if you’re a supporter of the bar exam, reconsider whether or not this makes any sense.

Kathryn Rubino: But also seems peak 2020? I mean not to be a downer here, but to be a bit of a downer here.

Joe Patrice: Yeah, so that works for us.

Kathryn Rubino: I got nothing.

Joe Patrice: So anyway, thanks for joining us. Next week, hopefully there will be many more exciting things coming so that we can —

Kathryn Rubino: Predict what the stories of the next week are going to be?

Joe Patrice: Oh we should play that game?

Kathryn Rubino: Let’s play that game.

Joe Patrice: How bad can it get?

Kathryn Rubino: How bad can it get, right? I mean murder hornets is already off the table. Hurricanes are already off the table. Mass blackouts have already happened this week.

Joe Patrice: Yeah, that’s actually one fair point, one of the reasons why we’re a little bit behind on story content here is that we had hurricanes knock our ability to keep up with the world. So we’re just now catching up.

Kathryn Rubino: I mean it’s not just us. I was looking at something online and folks were talking about how like it kind of has felt like a vacation the last couple of days because no one has power or internet, at least in the northeast, there’s large chunks of folks who are without sort of the basics that make working remotely possible.

Joe Patrice: Yeah, anyway so thank you everybody for joining us today. You should be subscribed to the show to get new episodes. You should be giving it reviews, stars, write something. It’s super important to have those words there, so that it picks up in the algorithm. You should be reading Above The Law. As always, follow us on social media. I’m

@josephpatrice. She’s @Kathryn1. Special thanks to Paper Software for their sponsorship today. Contract Tools is the tool that you want to be looking into. You should be listening to The Jabot, Kathryn’s other show. You should listen to our special COVID Cast reports. You should listen to the other offerings of the Legal Talk Network and with all of that said, we will talk to you later.

Kathryn Rubino: Bye.

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atl-redline.com, via iTunes, RSS, Twitter and Facebook.

[Music]

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

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Episode Details
Published: August 11, 2020
Podcast: Thinking Like a Lawyer - Above the Law
Category: Law School , Legal Entertainment , 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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