We're not saying, we're just saying.
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
Obviously, we’re not advocating for spoliation of evidence or obstruction of justice, but… shouldn’t Rudy Giuliani of all people known not to keep evidence of crimes around? He used to run the DOJ office that’s investigating his buddies! Meanwhile, the California bar exam gets caught breaking its own rules and the Pennsylvania bar president gets caught trying to protect himself from extortion.
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Intro: Hello and welcome to another edition of Thinking Like a Lawyer, you’d missed your mark at best.
Kathryn Rubino: I mean I thought I’d try to keep you off center, a little — keep you guessing maybe think that I wasn’t going to do it but I don’t know, I think it’s funnier this way. Your withering stare does not work on me, I’ve known you for a very long time.
Joe Patrice: The problem is the withering stare is not something that comes across in the podcast medium.
Kathryn Rubino: That’s why I felt like I needed to explain if that’s what you were doing because I don’t want people to get the misunderstanding that I am —
Joe Patrice: I’m Joe Patrice from Above The Law that is Kathryn Rubino, also Above The Law. You’re listening to Thinking Like a Lawyer.
Kathryn Rubino: How utterly contemptuous of us.
Joe Patrice: You’re listening to thinking like a lawyer where we talk about the week’s legal news or at least the fun stuff from it. So how are you doing?
Kathryn Rubino: I’m doing all right, how about yourself?
Joe Patrice: Excellent. Yeah, you know, I mean plugging along as one does; we’ve got a reasonably action-packed show. I don’t know about action-packed, maybe that’s — maybe I’m overselling.
Kathryn Rubino: I think you’re overselling it, yeah.
Joe Patrice: Maybe that’s an oversell. We have we have some interesting things to talk about really quick. We also have some sponsors. So why don’t we start by just getting into them.
Kathryn Rubino: Okay.
Joe Patrice: And move into the topic. So, let’s kick it off this week by hearing from our friends from Lexicon.
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Joe Patrice: Okay, what do you want to talk about today?
Kathryn Rubino: I mean something that has definitely been in the news a ton is — our former mayor, Rudy Giuliani.
Joe Patrice: Right. Yeah, so Giuliani has been in the news so okay.
Kathryn Rubino: Yeah, the FBI raided his offices.
Joe Patrice: That happens, it was like a dawn raid which is FBI’s usual MO when they go after folks. If you didn’t know that, I have a story about somebody getting raided from the archives of Above the Law that I always like about —
Kathryn Rubino: Do you?
Joe Patrice: Yeah, no — God, I’m trying to remember what the title of it was.
Kathryn Rubino: Criminal That I Am?
Joe Patrice: Well, that’s the name of the book that I was reviewing but the story itself is what I was looking up but you know, you could also make banter if you — when a lawyer becomes a criminal. Yeah, which is about the book Criminal That I Am which obviously people can go out and buy too. But it talks a little bit about —
Kathryn Rubino: Something in that Rudy Giuliani may know a lot about soon.
Joe Patrice: Yeah. Well — so that that’s actually the point that you were going to make so I won’t step on it.
Kathryn Rubino: No, I think it’s very interesting. So obviously Rudy Giuliani was — his stuff was rated. There’s a lot of stuff that people are talking about whether or not this will implicate the attorney-client privilege, what kind of documents they might have collected but fundamentally, it struck me — I mean we knew this was going to happen since January? Before that, because it was the Trump Administration, right? We knew during the Trump Administration that the Federal Government was considering a subpoena of Rudy Giuliani. And so, this was a sort of a known thing and it seems very surprising if there’s anything that they found that’s worthwhile.
Joe Patrice: Yeah, I think the way to phrase that — so, like in a radio context, how you could phrase that to be a little bit punchier would be if you had just like jumped in and said “What I think is the exact phrasing you used pre-show.” So, we talked about some of these things pre-show so to let you in on a little of the background.
Kathryn Rubino: I don’t even know what phrase you’re talking about.
Joe Patrice: Almost always she says it more punchy and direct in the pre-show and I’m always so like “Uh” when she doesn’t do it —
Kathryn Rubino: You’re the worst because you give me these like, eyes like this like –\
Joe Patrice: Direction? Yeah.
Kathryn Rubino: It’s not direction, it’s just a freaking stare and it’s completely not helpful.
Joe Patrice: Why can’t I — I can’t talk —
Kathryn Rubino: No, I’m telling you facts, true facts, not helpful. And then I wind up just kind of spinning my wheels and rambling on because I have no idea what you’re trying to communicate with like — you don’t even have a particularly piercing stare, BT DUBS.
Joe Patrice: Woah.
Kathryn Rubino: Yeah, I went there and you just kind of like looking at me like — like, I don’t even know what you want and so I just keep on rambling, hoping that I’m stumbling upon the thing that you wanted as opposed to just say it.
Joe Patrice: Well, I mean, it comes across really terrible for me to say it because obviously, then I’m captured saying it on the radio too.
Like, I don’t have an earpiece.
Kathryn Rubino: I don’t know what the thing you’re trying to — I don’t even know what it was. I think her point was put aside whether or not Giuliani needed to be — so Giuliani’s being raided large and a number of electronics were seized. This seems to be in connection with his dealings with Ukraine which is as Kathryn alluded, something that we kind of knew was being looked at by the Department of Justice because known collaborators of Giuliani have already been picked up by the Feds in this whole discussion.
Kathryn Rubino: And there was a story a while ago about whether or not it was going to happen under the Trump.
Joe Patrice: Right, yeah. Even the Trump Administration seemed to be looking into this. But this brings us to what Kathryn’s like tag for this was which is “If they find anything in it.”
Kathryn Rubino: I didn’t know what you were getting at Joe if they find —
Joe Patrice: See, this is the — I mean, like I worked so hard to try and like give these —
Kathryn Rubino: One, you absolutely do not. You absolutely do not. Number two, it was my idea in the first place and just —
Joe Patrice: Yes, I know and I was trying to —
Kathryn Rubino: But if you have like in your head some vision of like what you want the podcast to be or how it’s supposed to go down and you don’t let me in on this fact at all. I’m supposed to just like figure it out on the fly.
Joe Patrice: Well, think of it our pre-meeting when you said this is what you were going to say. I was ready for you to then say it.
Kathryn Rubino: No, but no, no, no, you have in your head this very specific vision like you have to phrase it the same way. I phrased it before as opposed to being like there’s any one of a bunch of ways, I could phrase it.
Joe Patrice: I feel like we’ve gone completely off the rails here. Yeah, you were going to say something though.
Kathryn Rubino: I was.
Joe Patrice: Yeah, do you remember what it was?
Kathryn Rubino: If they find anything during this raid then Rudy Giuliani is just a terrible criminal.
Joe Patrice: I think — well, I mean when I put that aside, I think he becomes the single stupidest lawyer in the world.
Kathryn Rubino: Yeah, I mean before this stuff is evidence, he doesn’t have to keep it.
Joe Patrice: Well, all right, so let’s break down some of the places where this makes him the stupidest lawyer in the world. It is not as though he is a trust and estates lawyer who has been thrust against his will into this world. He basically made his career inside the Southern District of New York’s U.S. attorney’s office.
Kathryn Rubino: Right, he certainly knows the inner workings of how these dawn raids go, I mean —
Joe Patrice: Dawn raids, he knows that when his accomplices — we’ll start using that term. People that he’s worked with — we can move to accomplice at this point. When his accomplices were already been picked up for this stuff, he has to know that this is coming. So, if there I still any evidence on any of these devices, then he’s clearly the dumbest person in the world. Let’s be clear, we are not advocating for spoliation here, yeah.
Kathryn Rubino: No, no, no, no and that’s what I’m saying but before that, there was a subpoena, there wasn’t evidence, they were just his documents.
Joe Patrice: Yeah.
Kathryn Rubino: Right? So why is there anything left to find? This is literally a news story during the Trump Administration. It is now may or that this has happened in April but like, it is several months later. What are you waiting for?
Joe Patrice: Yeah, exactly and again not advocating people committing crimes but you know? But I mean, come on.
Kathryn Rubino: But you know, that’s why — if you’re going to be a criminal, be a decent one.
Joe Patrice: Be the best one you can be.
Kathryn Rubino: Be the best kind of criminal you can be.
Joe Patrice: Yeah, well and on top of this, he also has been going on the media and who knows if this is — look, I’m of the mind that a lot of these folks go on tv and say things they know not to be true because it’s part of the —
Kathryn Rubino: Shtick, yeah.
Joe Patrice: Part of the shtick but it almost seemed like he believed it which is extra scary because he started talking about how they seized everything except the Hunter Biden Disc that that I kept saying they should grab. And it’s like well, one; that’s not how warrants work, you don’t get to just say to the feds “You know what? I know you have a warrant for the following six devices but while you’re here, might I interest you in a few other things?” That’s not how that works.
Kathryn Rubino: Just like the whole notion of like, “Might I interest you.”
Joe Patrice: Yeah, look you know, I know you came here for these six and it’s going to kill me but you know? I can help you out —
Kathryn Rubino: Help me help you.
Joe Patrice: One-time only, yeah. And to believe that would show a complete failure to understand how the law works, especially criminal law, especially the Federal Government’s law enforcement division, which is the thing he used to run.
Kathryn Rubino: Yeah, I mean that is the really –shocking part is and I don’t know, there’s probably lots of speculation people have as to why this has happened the way it has.
But look, this was his job, right?
Joe Patrice: Yeah, for a while.
Kathryn Rubino: That’s how he became whatever version of famous he was before he became mayor, right?
Joe Patrice: If it sounded weird just there, right? When I was talking, it was because I was rubbing my face with my hands in a sense like —
Kathryn Rubino: Sheer frustration.
Joe Patrice: Sheer frustration with the stupidity of this entire — yeah.
Kathryn Rubino: I mean it’s a — listen, you were in your past life as a lawyer, you were a criminal — white collar-criminal defense attorney.
Joe Patrice: Yeah, you paused after the word “criminal” for a little too long for my life. But yes, I did white-collar defense, yes.
Kathryn Rubino: Plenty of room to make choices in your life.
Joe Patrice: Go on.
Kathryn Rubino: No, so you have a better sense than some standard kind of corporate lawyers would have about how this all goes down? And it’s shocking to me that anyone who — not even — listen, I never practiced any version of criminal law and yet I watch enough Law and Order or have in the past to know that everything that Giuliani did was not very clever.
Joe Patrice: No. I mean, look, I guess it’s clever not to delete evidence because people will find it, that you did it and that makes you look worse. But I mean also, keeping evidence not a smart criminal move, just a general matter. Like yeah, it’s — yeah.
Kathryn Rubino: It is quite a thing and now he’s going on all the talk shows talking about it.
Joe Patrice: He now says Alan Dershowitz is going to help him out. So, you know, adding more high-quality firepower to this game.
Kathryn Rubino: If you could like go back to — I don’t know, 2001 or 2002 and kind of whisper in your own ear this little tidbit about America’s mayor and the then incredibly respected Law Professor, Alan Dershowitz, I don’t think I’d believe me.
Joe Patrice: Yeah, you know that is true. It wouldn’t take — actually, that should be the gambling line. It should be how many years back would I have to go to say “Rudy Giuliani’s going to be raided by the FBI and Alan Dershowitz is going to be completely batty and trying to defend him.” Yeah, no —
Kathryn Rubino: Yeah, like before, it becomes believable, right?
Joe Patrice: I mean in 2001 obviously, that wouldn’t seem logical. Well, by 2005 would I have bought it? No, probably still needed some more time. No, this is a good little game.
Kathryn Rubino: Yeah, it’s at least the 2010 — probably the teens.
Joe Patrice: Yeah. I mean look, I don’t want to gamble on this specifically. Mostly, because gambling is just not a thing, I’m particularly good at. I don’t know if you know why and that’s because I went to law school to be a lawyer, not an accountant.
Kathryn Rubino: Oh wow, okay.
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Kathryn Rubino: I bet you’re pretty proud of yourself huh?
Joe Patrice: I’m super proud of myself, yeah. You know who should not be proud of themselves? The California Bar. The California Bar Exam, there were several bar exams over the last cycle that have embarrassed themselves. The most being the ones that ran in-person like say, Colorado, that ran in-person trying to claim that we’ve got this all figured out, everyone’s going to be safe. And then immediately afterwards — COVID.
Kathryn Rubino: Right, it was for posterity’s sake, right? Maybe in a few years people would also still be listening to this podcast but you know? It was in the middle of COVID.
Joe Patrice: Yes, it was in the middle of COVID.
Kathryn Rubino: We’re talking about the 2020 Bar Exam.
Joe Patrice: In Colorado, yes that’s a good point in Colorado. They thought they could get away with it and went into the newspapers right before it started and shots fired over “anybody who doesn’t think we know how to do this is just a whiner and blah blah blah.” And don’t worry they had a COVID outbreak because that’s what happens when you do stupid things. Anyway —
Kathryn Rubino: Listen, do stupid things get COVID prizes.
Joe Patrice: Yeah, so that was the worst. That was the worst, then the slightly better tier were the people who tried to do things online. Unfortunately, the online exam — the way in which they chose to run an online bar exam. Some states — out of necessity, it’s not like Indiana had a better plan but their plan fell apart so they created kind of an open book “Hey do you actually understand what’s going on in this question? E-mail us back.”
Kathryn Rubino: I’ll tell you; I think that was probably the best.
Joe Patrice: It was absolutely the best option and because it actually made the bar exam — the thing the bar exam is supposed to be. A test of minimum competency.
Kathryn Rubino: Right.
Joe Patrice: As opposed to this weird, scaled nonsense that is sent to them by the NCBE which is a nonprofit organization that turns $5 to $7 million dollars in profit every year.
Anyway, that organization though pushed a lot of its membership into — membership, I guess? Who knows how they try to spin this but a lot of states into a platform that required them giving more millions of dollars or at least hundreds of thousands of dollars each; totaling up to millions to online software providers who could make all this happen for them?
Kathryn Rubino: Right, so I think that they’re trying to do — turn on a dime. It was an emerging situation which is why Indiana came upon this like via e-mail system which actually was fine.
Joe Patrice: Which actually was fine.
Kathryn Rubino: Right and it didn’t have the sort of the nanny state issue which a lot of the other issue that happened I know with the software is that there was cheating issues with it.
Joe Patrice: Well, they said there were, there were not.
Kathryn Rubino: There are issues with the software.
Joe Patrice: As it turns out the software felt that — well first of all that black and brown people shouldn’t even take the test because they refused to let them. It would immediately flag them as cheaters just because its facial recognition couldn’t figure it out.
Kathryn Rubino: Incredibly problematic and offensive.
Joe Patrice: Which is a thing that we all knew was going to happen and talked about ad nauseam but don’t worry, the bar exams pulled forward with it anyway. And then on top of that, they had the issue where California received back a series, let’s just call them “false-positives” because that’s what they ultimately were. That said, a full one-third of people who took the exam were cheaters.
Kathryn Rubino: Right, which is not accurate. It cannot possibly do.
Joe Patrice: Obviously cannot possibly be could true. Their response to this was to assume it was true and ask all those people to prove the negative that they were not cheating which is probably not the way in which this should have operated. As it turns out, a fewer than 50 cases throughout the entire of the California Bar Exam Administration were shown to even reach the point that they might have been cheating. But don’t worry, they said hundreds and hundreds but it was a whole mess. As turns out, this is a long story short, we get now to the California State Auditor has now looked into the decision-making of the California Bar Exam and worked out that the California Bar Exam shocking absolutely no one breached tons of protocols in order to set up this system. The system that its buddies at the NCBE were pushing that like its vendor that it works with other times — and then they breached a bunch of procurement rules in order to force this decision rather than look at any other option that might have been more sound. Because you know, death drive(ph) to keep doing this test.
Kathryn Rubino: And if you don’t have a bar exam how are you even a lawyer?
Joe Patrice: Yeah, which is dumb. Look, to some extent, I will say, I get California’s problem in that they allow non-ABA sanctioned schools to exist in their state. They’re just Cal-sanctioned.
Kathryn Rubino: — that you have that problem there.
Joe Patrice: They’re just Cal-sanctioned and those folks have to go through some sort of test. And you know, obviously since it’s not ABA-sanctioned. You’re nervous about those folks becoming lawyers, don’t worry, they’re not nervous enough to shutdown California-sanctioned schools. They’re just nervous enough to force those kids to go into massive amounts of debt and then not pass the test, which is worse. But anyway, it’s a whole mess, obviously they breached this. The penalty for this seems to be non-existent. It seems almost as though the penalty was — we’re going to publicly point out that you failed to follow the orders which — I mean, I guess we’re all pointing and laughing but that’s about all that we have on them right now.
Kathryn Rubino: Wow. Yeah, I mean the whole the whole bar exam situation was really one of the legal industry’s black eyes from the whole COVID experience. I mean listen, nothing was great about — nothing has been great, nothing continues to be — to doing particularly well right now and you know, as we’re hopefully coming towards the end of the of the COVID experience. But it does definitely seem like that was a particularly bad black eye for the legal industry.
Joe Patrice: Yeah. Hopefully, it wasn’t a black guy(ph) because if it was, the facial recognition software would probably assume that you didn’t —
Kathryn Rubino: You’re a cheater.
Joe Patrice: Managed to take the test properly. Yeah, and don’t worry, we’re going to have more of these before it’s all over. Yeah, experts in the field of exam technology publicly said “this won’t work, you will have the following problems” before they did it. And instead, they just rolled forward.
Kathryn Rubino: And then, what do you know, we had all those problems.
Joe Patrice: Yeah, but I mean you know, the NCB needs to make its money somewhere.
Kathryn Rubino: Wow.
Joe Patrice: It sits on something like $117 million worth of assets or something like that and turns $5 to $7 million every year. Pays its executives large six-figure salaries, yeah.
Kathryn Rubino: Handsomely, yeah. Jeepers.
Joe Patrice: Yeah, but don’t worry, it’s non-profit, so yeah.
Kathryn Rubino: Non-profit. I mean, so is the NCAA.
Joe Patrice: So is the NFL technically.
Kathryn Rubino: Yeah.
Kathryn Rubino: If I had to do all over again, I would have done the part of law where you learned how non-profits worked and then done that forever because that seems to be a lucrative way of making money.
Kathryn Rubino: Indeed.
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Kathryn Rubino: Good job there, that was seamless on that one.
Joe Patrice: We’re a little short today, do you have anything else to say?
Kathryn Rubino: But we’re talking about bars and I was going to talk a little bit about —
Joe Patrice: You’re drunk right now?
Kathryn Rubino: No.
Joe Patrice: Oh okay. Oh, like the —
Kathryn Rubino: Like the California Bar.
Joe Patrice: Oh okay — yeah, yeah.
Kathryn Rubino: Like Bar associations.
Joe Patrice: Okay. I mean AA? No, go on.
Kathryn Rubino: You know Joe, addiction issues are not funny but anyway the point is, I was going to talk about the Pennsylvania Bar and the fact that their president stepped down.
Joe Patrice: Oh really? I mean I assumed this was a regular transfer of power situation? No? Well, I mean certainly, it was that the burdens of his day-to-day job got so heavy that he couldn’t keep —
Kathryn Rubino: Nope.
Joe Patrice: Oh interesting, so what happened?
Kathryn Rubino: He was charged with soliciting a prostitute.
Joe Patrice: Okay.
Kathryn Rubino: So, this is an interesting little story. It’s kind of funny.
Joe Patrice: Not funny “ha-ha” more funny “boo hoo.”
Kathryn Rubino: Accurate. Bar Association President and I think County Solicitor in Pennsylvania — now he’s on leave without pay. But solicited a prostitute, he found that during the course of the incident, noticed that the woman he had hired from an escort service was videotaping him.
Joe Patrice: Not great.
Kathryn Rubino: Not great, not great.
Joe Patrice: Never let them videotape you.
Kathryn Rubino: Never let them tape.
Joe Patrice: And that’s not just for prostitution, that is actually just a general rule.
Kathryn Rubino: A good life advice.
Joe Patrice: A life advice for any encounter, yeah.
Kathryn Rubino: Life advice. He did not want her to take pictures. But she’s like “Oh, I’m not really taking pictures, I’m just audio recording,” and then she wouldn’t shut it off so he ended the encounter and then she tried to extort him for $1,000 and say “I will post these pictures of you engaged with a prostitute online” or wherever or “unless you give me a $1,000.”
He like talked her down I think to like 700 at one point. But actually, just told the police what happened and the police came —
Joe Patrice: At this point, you would think that given that there are multiple overlapping crimes involved that the one that the government would go after would be the one that was a victim-based crime in this case blackmail or extortion, as opposed to say a victimless based crime like —
Kathryn Rubino: Soliciting a prostitute.
Joe Patrice: Oh, but instead what they did was?
Kathryn Rubino: Well, she also got arrested.
Joe Patrice: So, it’s just like everything. Setting the incentives for not reporting is like —
Kathryn Rubino: He was charged with a crime. As a result, he’s —
Joe Patrice: Which ironically sets the incentives for not prosecuting blackmail or the solicitation as that would never have come to light.
Kathryn Rubino: That is correct, it would not have come to light. But for him telling the police —
Joe Patrice: The incentive structure is to have no crimes dealt with.
Kathryn Rubino: He’s just been charged at this sort of point in the process but he did step down as President of the Pennsylvania Bar Association and they’ve already elected — the person who was elected the next term just took over than intended and he is suspended without pay from his job as County Solicitor.
Joe Patrice: Yeah. Hey, I mean look, obviously, law enforcement officials like a county — a government officer breaking the law is bad and yadda, yadda. That said, I have a very economics-based view of how I look at the functioning of the law. And I think of it as a series of incentives and disincentives and you’re trying to get the best results for society out of these incentives and disincentives. And setting an incentive that says “crimes with victims are treated as importantly, if not more importantly in this situation as those that theoretically do not have victims.” Obviously, there can-be baggage surrounding the prostitution trade and sex trafficking, whatever. But sex work does not automatically mean those things and in this instance —
Kathryn Rubino: He does not appear — yeah.
Joe Patrice: And on top of that, setting an incentive structure that says “don’t report any of this” all parties involved would be better off if you’d never told the police that crimes were happening. Imagine, how many other crimes do you feel are better off if the police take the stance “we’d rather just not know”? I mean that seems to be Rudy’s Theory of how the law works.
Kathryn Rubino: This was kind of the synthesis of everything I’ve been talking about this episode, right? It’s about crimes, it’s about Bar Associations, here we go.
Joe Patrice: Yeah, absolutely, crazy. Anyway, so let’s wrap up then. So, thanks for listening, you should be listening to all the episodes. You should be subscribed to get them when they drop, you should be giving reviews, stars, writing something, lets people know that we’re out there. Remember to send us stuff for the mailbag going forward. We’ll start answering some of that stuff.
Kathryn Rubino: You send it to [email protected] subject line “Thinking Like A Lawyer.”
Joe Patrice: Yeah, that works too. And you should be reading Above The Law. As always, you should be listening to our other shows, she hosts The Jabot. I’m a panelist on the Legal Tech Week Journalists Roundtable. You should be following us on social media, I’m @josephpatrice, she’s @kathryn1. Check out the other shows from the Legal Talk Network and what else?
Kathryn Rubino: Peace.
Joe Patrice: Oh no — no. Why would you jump the gun like that?
Kathryn Rubino: Well, I was late in the intro, so I thought I thought I’d be early in the —
Joe Patrice: Oh okay. Thanks to our sponsors NODA powered by M&T Bank, LexisNexis Interaction and Lexicon and there was yet again another thing that I’ve no lost track of because of all this but you can sign off.
Kathryn Rubino: Bye.
Joe Patrice: Bye.
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|Published:||May 5, 2021|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.