This is why we can't have nice things.
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...
Big firms are experimenting with hybrid and flexible office models in the hopefully waning days of COVID. And there’s a lot of momentum behind transitioning this into a permanent 3- or 4-day work week long term. Except there are some of you out there screwing this up for the rest of us and intentionally not getting the vaccine in an effort to stay home thereby confirming why some firms think everyone needs to be forced back to the office. We also discuss the sentencing — if you can even call it that — of the South Dakota AG who killed a man several months ago. And Joe talks about legal technology and Las Vegas for a bit.
Kathryn Rubino: Hello.
Joe Patrice: Hello, welcome. Again, welcome.
Kathryn Rubino: Welcome back to the show, Joe.
Joe Patrice: Thank you. Yes. This is Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. That’s Kathryn Rubino. Yeah, I’m back. For the first time ever, I was not on an episode in any form. There was a previous one where I only participated by recording the Disclaimer after the fact, but this was the first time I had no involvement at all.
Kathryn Rubino: It’s over 200 episodes.
Joe Patrice: Yeah.
Kathryn Rubino: It’s pretty impressive run that was broken.
Joe Patrice: Yeah, no, I mean, I am impressive.
Kathryn Rubino: You used to be anyway.
Joe Patrice: You know what? Sometimes, you’ve got to let people try things out for themselves. I assume now you have a much greater respect for the stuff I do for the show because you had —
Kathryn Rubino: Nope.
Joe Patrice: Okay, no cool.
Kathryn Rubino: More to the point, I think that you make it seem like your job is way more important than it is.
Joe Patrice: Okay.
Kathryn Rubino: It did not turn out the way you had hoped.
Joe Patrice: Fantastic.
Kathryn Rubino: Yeah.
Joe Patrice: It’s so great.
Kathryn Rubino: So remind our listeners you were gone for tech conference?
Joe Patrice: I was although, I don’t know. Hold on. I need a ruling here. Yes. Asking me about the tech conference that constitute small talk now.
Kathryn Rubino: Wow. Wow. Yeah, that was pretty forced.
Joe Patrice: Yeah. Well, I mean, it wasn’t necessarily one of our topics. So this becomes the section where we talk about small talk. Yeah. Yes, I was at a tech show. I was in Las Vegas at the International Legal Tech Association Annual Conference (ILTACON).
Kathryn Rubino: Yeah, that work out for you.
Joe Patrice: Well, actually, let me rephrase. I was at the ILTACON, which was the hastily thrown together alternative show that I was running out of the Above the Law Global Tech Affair Suite that I had. Yes, it’s a huge show.
Kathryn Rubino: Tell me why was there an alternative?
Joe Patrice: Well, they didn’t invite press people. Well, they invited a couple, and then those people didn’t come. So the press people who were there, with the exception of our friends from Legal Tech News, who were the only press people that I could tell who actually were invited and came. All the other folks that they invited, they didn’t let in, up to and including they invited somebody who sent someone in her instead and they said that that person couldn’t even go and even though she was there on behalf of that outlet.
Kathryn Rubino: So was there strict COVID regulations?
Joe Patrice: Well, that was originally the logic was occupancy issues, but then the occupancy stuff all fell by the wayside when they started selling tickets, and then –
Kathryn Rubino: So you could have bought your way in, but they weren’t going to give it to a press?
Joe Patrice: Basically, yeah. That seems like what it was like, yeah. But everyone had to be vaccinated and all so there was that, but we all would have been. Anyway, it was something of an unforced error, but it happened. Whatever. The point of the show is, even if the administration of the show goes off the rails, the show itself is made up of the people who go and they are every year I find it’s like a palpable excitement and enthusiasm among people who do this work.
It’s kind of mid-year so you always get to hear how the first half a year went and what they’re working on for the second half. Any exciting stuff some of these people are innovating. It seems kind of nerdy, but the business of law has a lot of — it takes up a lot of people’s time. You do a lot, and there are ways to make it so that you don’t have to use so much time. And that’s what these people do –-
Kathryn Rubino: But isn’t it fundamentally a problem for the billable hour?
Joe Patrice: Well, not really. You could also, I mean, like any kind of labor saving device. The world didn’t come to a stop just because we made other labor saving devices. You can do these things that make it better. It certainly helps the clients. You so ultimately do matter.
Kathryn Rubino: And then really, I find in those sorts of things is where the clients that push lawyers to adapt a lot of this stuff because it’s in their best interest that lawyers not spend too much time doing work that computers can do.
Joe Patrice: And the hours don’t necessarily need to change either. If the four hours you are going to spend on a matter are two hours of digging through your inbox and then two hours of thinking about the law, if you can change that to being ten minutes of inbox management, three and more time thinking about the law, the bill is the same. But at the end of the day, you’ve provided better service so whatever. The point is, it’s a group of people who are excited about what they do and I get to hear about it, and it’s a lot of fun. And we did it in a I think the word, the correct terminology is baller sweet.
Kathryn Rubino: Oh, okay.
Joe Patrice: Yeah. I had the penthouse of the Mandalay Bay. It was very nice. Legal Tech News came in, and basically with every interview we conducted said, “I think everyone needs to take a second to realize what Above the Law did. They did this right.” And I was like, “yeah,” but it was a great time meeting folks.
Kathryn Rubino: What was sort of the motivation, and obviously I’m feeding you some questions here, but I was aware that you were going without a formal invite before this conversation. What was sort of your rationale for kind of leading the drive to, “I need to go to the show, even though they don’t seem to want me.”
Joe Patrice: Well, there are two things. On the one hand, I mean look, and this was a theme that I heard from exhibitors who are there too, and some major exhibitors pulled out too. So it wasn’t like everybody kind of uniformly came. But part of it was I felt like, as I do think that this is valuable gathering of people every year, I felt like I owed it to everybody to go.
Kathryn Rubino: You know like get back to normal sense?
Joe Patrice: Somebody had to go first as a show, and if we want to continue having these sorts of conferences, then thought leadership summits basically. Once there’s an opportunity, especially after a year where they probably took a bath on a lot of contracts, you need to help. And part of that helping is going and so I was going to go. There were a lot of vendors who are interested in talking to me, so I was like, “Well, I will definitely do that,” even though obviously we could all Zoom.
Kathryn Rubino: It’s better.
Joe Patrice: You accomplish more when you’re in person in this way, not to save it. I don’t want to be turned into an anti-work from home person.
Kathryn Rubino: Sure. I think we need a balance going forward, right?
Joe Patrice: Yeah.
Kathryn Rubino: And it’s not a situation where you necessarily have to go in every day. But there are times when seeing folks face to face make difference.
Joe Patrice: Frankly, I’ve already been contacted by vendors about, “Are you going before the discussion?” There was a discussion about whether or not I was going to be invited, and I assumed I would be as I’d covered the show for five years, but no, ultimately they didn’t. But I still was like, “Well, I’m still going to go.” The people want to meet with me.
Kathryn Rubino: The people demanded?
Joe Patrice: Yeah, they will still meet with me if I’m not on the floor of the conference. It’s an inconvenience for them to walk from there and go up an elevator to the penthouse. But everyone was very gracious about being able to give me that time.
Kathryn Rubino: It’s also I’m sure their best interest as well.
Joe Patrice: Yeah.
Kathryn Rubino: I’ve not covered nearly as many tech conferences as you have, but one of the more annoying parts about covering it and trying to talk with folks is trying to figure out where they are, where you’re meeting. Oh, gosh I’m in the wrong aisle. That kind of stuff. And also just the volume of the floor when you do meet up with folks, it really can be a very loud, not very conducive environment. And it seems like having a “baller” sweet probably help with some of that.
Joe Patrice: It did definitely help with that. That said, at this particular show, being lost and having loudness and crowd were not issues that you were going to have.
Kathryn Rubino: This seems like the intro to a story.
Joe Patrice: So the in person side of it was not particularly well attended. A few hundred people, obviously, representatives of a lot of the big vendors in space, obviously. But a pale shadow of what a fully attended version of this conference looks like. You know that’s the thing.
Kathryn Rubino: So what are you were talking about, like half as many folks, less?
Joe Patrice: Well, this is an interesting question. ILTA, their official numbering system of how many people are there changed a lot throughout the weekend. There was a number, then it was a smaller number, then it was yet another smaller number. And those of us who were there were saying, “I think it’s even smaller than that.” Yeah, I think we’re all at this point used to entities in power, not delivering the correct numbers, but yes, it was a small group of people. The exhibit floor, I was told, was more or less vacant at most times, but you still got people there. You still got good conversations. It was still incredibly busy from my perspective up in the suite.
Kathryn Rubino: That’s good and you survived travel to a pretty busy place assumably without catching COVID.
Joe Patrice: That is correct.
Kathryn Rubino: Points for that.
Joe Patrice: Yup. Yup. I’m vaccinated and I was able to be in Las Vegas. I will say Las Vegas they are much better than I thought they would be about masks.
Kathryn Rubino: Okay.
Joe Patrice: Even if you were vaccinated, you needed to wear masks for the purposes of being in the casino.
Kathryn Rubino: That makes sense.
Joe Patrice: And people were pretty good about it. You saw occasional one person not having it here or there, but more or less people were good.
Kathryn Rubino: Well, that’s good.
Joe Patrice: Hopefully, next year will be back to normal.
Kathryn Rubino: And you’ll get the invite hopefully.
Joe Patrice: Hopefully. On the other hand, though, obviously, it would be way better.
Kathryn Rubino: You still might get the sweet anyway.
Joe Patrice: Honestly, a lot of the vendors said that this was a better way of meeting. So even if I am invited, I think we would also want to get something like this for some meetings anyway, whatever.
Kathryn Rubino: So something positive came. You found a slightly superior way to do your business. Good job.
Joe Patrice: Yeah. I also felt like the other positive thing came out of it was just the conversations which were always going to happen, but I don’t want to make it sound like, yeah.
Kathryn Rubino: No, no, but there was an improvement even over a non-COVID world of the conference.
Joe Patrice: Okay, yeah. Anyway, speaking of technology and making things better, and it’s all about streamlining in this world.
Kathryn Rubino: Is it? Streamlining?
Joe Patrice: Yeah, and so that’s why I thought maybe now we could hear from the folks at Lexicon.
Kathryn Rubino: Fair enough.
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Joe Patrice: All right, we’re back. Well, what happened in the world this last week while I was gone?
Kathryn Rubino: Well, I got pretty salty about one story.
Joe Patrice: Oh, did you now?
Kathryn Rubino: Listen, yeah, I did. There was some coverage on law.com about vaccine mandates. It’s the thing that’s increasingly big law firms are requiring all of their staff and visitors and clients who want to visit them in their actual office to be fully vaccinated before they come in, which sounds great.
Joe Patrice: Indeed.
Kathryn Rubino: But there were some reports that some legal recruiters talked about. First of all, that associates didn’t like the concept of a mandate, and I’m like, “Well, tough shit.” We live in a literal pandemic. Get the hell over yourself. This isn’t like mandating what computer you all have to use, which you admittedly should get a voice in. This is a public health matter, and the more mandates, the better, frankly. But there was also some commentary that some people were avoiding the vaccine so that they can maintain “flexibility” so they wouldn’t have to work in the office anymore
Joe Patrice: Oh, see. This is why you can’t have nice things.
Kathryn Rubino: Yeah, I think I refer to it as holding public health hostage, which it is. It made me incredibly irritated. This is not to say that folks shouldn’t have flexibility or that I’m trying to minimize the import of the occasional working from home set up or even a more regular one. I understand why this is important. I do. And I understand that they make a real difference in terms of continuing your job and your job satisfaction and the quality, even perhaps, of your work. I understand all this is incredibly important. It’s not a good reason to not get vaccinated, though friends, this is a terrible fucking reason. It also makes me fundamentally question your judgment as an attorney, right? If somebody’s working for me, an associate and they’re not vaccinated, and it’s because they don’t want to come into the office, my respect level, you can’t get that back.
Joe Patrice: Yeah, that does seem problematic. I mean, part of this also is and why a good reason why firms should get ahead of the problem and start talking about the realities of how we’re going to transition back. It’s when they start saying, “You’re going to be back like normal five days a week and then also on Saturday for all hours of the night. That’s the kind of world view in which after a year of people making arrangements and sometimes it’s arrangements that they can’t change on a dime as far as how they live their lives, requiring them to be at home some days. When you do that, then it incentivizes people to do make these kind of mistakes.
Kathryn Rubino: I mean I think that the plurality of big law firms certainly seemed to be coalescing around a flexible schedule.
Joe Patrice: Yeah, which makes sense. I think that is what’s important.
Kathryn Rubino: I think that firms will expect associates to be in the office a number of days of the week.
Joe Patrice: Yeah.
Kathryn Rubino: Two, three, four. I don’t think people are going to expect you to be in the office five. I think you’ll be working six.
Joe Patrice: Right.
Kathryn Rubino: But I don’t think that there’s going to be a long term expectation. I think obviously, if you’re in the middle of trial prep or ideas about the close, of course, things are going to be different, but I think that there’s sort of an expectation and a consensus building that five days in the office is not really something that anyone’s going to require.
And I think that big law firms who are interested in maintaining their recruiting levels at pre-pandemic levels are going to continue that. And frankly, given the volatility of the mid-level lateral market, it seems that people are hiring tons of associates, right? So they want these bodies, they want these folks doing this work and I don’t think that saying, “Of course, you can work remotely one to two days a week.” Is that much of a sacrifice for a firm?
Joe Patrice: Well, it also tracks developments that really were already underway before this.
Kathryn Rubino: Right.
Joe Patrice: I mean, obviously, not for the associates as much. But I know a department head for a top tier firm, who when I visited him in his office a couple of years ago, and he said, “Yeah, that’s the first time I’ve been in here in a while” because he operates on the once a week at best and this was pre-pandemic.
Kathryn Rubino: Pre-pandemic, yeah.
Joe Patrice: And that’s the thing that the technology existed the partners had the ability to do it and they did.
Kathryn Rubino: Once you’re already partner, you’re not really worried about that kind of face time.
Joe Patrice: Right. But the key to this is they have proof of concept.
Kathryn Rubino: Right.
Joe Patrice: Even before COVID, they had proof of concept that things can get done remotely and so we see it so that makes sense. And I talk about this all the time. Commercial real estate is expensive, and you can give everyone a smaller office. You can remove the couches and everything from the partner offices because they’re not going to be there every day.
Kathryn Rubino: They don’t need to sleep there.
Joe Patrice: Yeah. You can get that floor space down quite a bit.
Kathryn Rubino: Yeah, that’s a good point. But I still think that trying to not get vaccinated in order to be able to maintain your work from home schedule is awful. Just awful.
Joe Patrice: Yes, that is a horrible thing.
Kathryn Rubino: Yeah, I was really, really spicy about it.
Joe Patrice: Don’t do that.
Kathryn Rubino: Please, please just get vaccinated. I don’t know why this is so hard.
Joe Patrice: And the reason to do it is I think I already gave the proof case. I can stand next to unmask somebody who has COVID for an hour and a half, and me and everybody else who was there.
Kathryn Rubino: So this happened at ILTA?
Joe Patrice: At ILTA, yeah.
Kathryn Rubino: Oh, interesting.
Joe Patrice: Yeah, and that person was vaccinated too, but a lot of big numbers eventually.
Kathryn Rubino: Or not so big numbers.
Joe Patrice: Eventually, some percentage of breakthrough will happen when you have a sample size.
Kathryn Rubino: Especially, it’s also folks who had been traveling for the most part to get to the show where it obviously just increases your exposure to who knows who. But it’s good to hear that you didn’t contract COVID so congrats on that.
Joe Patrice: I don’t know you didn’t really leave me a lot to work with there.
Kathryn Rubino: Am I supposed to feed you your transition?
Joe Patrice: I mean, I don’t know.
Kathryn Rubino: Something, something law school go.
Joe Patrice: Wow.
Kathryn Rubino: I’ll tell you, I did last week in your absence have to do the ad reads, obviously. And Chris Williams is an editor in Above the Law and my co-host last week, was pretty impressed with my transition. He said it was very smooth.
Joe Patrice: That’s nice.
Kathryn Rubino: Yes, that’s right because Chris is new here. He just got out of law school.
Kathryn Rubino: Yeah, he did.
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Kathryn Rubino: So even though you were at this show last week, you still because remote work works were able to write some stories. Not quite as many as you normally do, but you were still on top of it.
Joe Patrice: Yeah. I mean, most of the stories were about the show.
Kathryn Rubino: Sure. A couple of follow-ups.
Joe Patrice: Yeah, but the one that I did not maybe one maybe I wrote another one too, but the one that I can remember that I did that was not about the show was we got a sentence in the case of the South Dakota Attorney General. For those who haven’t been following along, he killed a guy. That’s not hyperbole, no. He killed a man, and he did so and there have been calls by the governor of the state and many in the legislature for him to resign. He’s refusing to do.
Kathryn Rubino: It was a car accident in South Dakota?
Joe Patrice: Yeah. So he went to an event at a bar/restaurant during the middle of the pandemic.
Kathryn Rubino: More excellent judgment.
Joe Patrice: Yeah, excellent judgment. While they were raffling off a handgun that had Trump emblazoned on it, so he had to be there for that.
Kathryn Rubino: We live in the dumbest time.
Joe Patrice: But reports are that he was not drinking whether or not that’s true, who knows? By the time he was tested, there was nothing.
Kathryn Rubino: This was like the next day or so.
Joe Patrice: Yeah, we’ll just go ahead and say that. Well, why it was the next day, because when he drove home and killed this guy, he then didn’t report it for a day.
Kathryn Rubino: Not a great look.
Joe Patrice: Because he thought he hit a deer. The wrinkle to this is when the detectives got involved and started digging into this. Recordings were released of them interviewing where they pointed out, “The dead man’s glasses are in your car because it went through the windshield so it’s hard for you to sell us on you didn’t know what you had hit when it had literally gone through your car.”
Kathryn Rubino: Okay, so he sentenced for what crimes?
Joe Patrice: He was only charged with a few misdemeanors.
Kathryn Rubino: Is killing a person in misdemeanor now?
Joe Patrice: It is not in South Dakota. He was charged with reckless driving related stuff, changing a Lane when he wasn’t supposed to and distracted driving. The reason it was distracted driving is that the investigators were able to pull the data from his phone so they could verify that while he was driving, he was scrolling conservative news sites. He was just reading Townhall and Daily Caller and stuff like that, these conservative news sites while he was driving. And that that’s what happened so they charged him with distracted driving and nothing else. And a plea deal was reached where he would not plead guilty. He had no contested them. And he will pay $1,000 for this.
Kathryn Rubino: That doesn’t feel great.
Joe Patrice: Thousand dollars. He remains in his job.
Kathryn Rubino: That feels like a broken system right there.
Joe Patrice: Yeah, I mean, obviously, a wrongful death suit will inevitably follow and that’s where any real money comes. Theoretically, someone is going to move forward with impeachment in that state, even though this is somebody from his own party, but from the party that controls, but even within that, the governor.
Kathryn Rubino: He was like, “Come on, man, you killed somebody let it go.”
Joe Patrice: Yeah, and they have recruited the attorney general who retired before this guy to run in the primary coming forward so very much leaning towards the idea of whatever happens, we can get rid of him, but yeah.
Kathryn Rubino: Oh, I guess that’s something. I don’t know it’s hard to find silver lightings, but here we are.
Joe Patrice: I mean, look, I’m one of these people who very much thinks that prosecutors overcharge people and that the criminal justice system is plagued by how much we believe in punishment when that’s not necessarily the best way of doing things. That said, a $1,000 on this one does not seem like it hit the mark. It seems like there might be some middle ground between a $1,000 and going to prison for a long time, like some standard you could have in between that that you could measure and say, “That’s where it goes,” not some vague in between things. Anyway, whatever it is. So, yeah, you’re just staring at me now.
Kathryn Rubino: No, just trying to see if there’s an ad read or something you want to throw in there?
Joe Patrice: No, no we have completed our ad reads. At this point, if you have any other thoughts on this story?
Kathryn Rubino: Nope.
Joe Patrice: Cool. I think that might be it.
Kathryn Rubino: Just like you, intensely.
Joe Patrice: Do you? So for everyone else’s benefit, this whole discussion of what standard goes between two extremes was a legal discussion that she and I got into offline about work, and I just brought it up again subtly, and she seems displeased with this fight.
Kathryn Rubino: This makes great radio friends.
Joe Patrice: That’s a problem. If we were a webcast, this would be great because the look on your face when you saw that that’s what I was doing was priceless.
Kathryn Rubino: We continue to live in the dumbest timeline.
Joe Patrice: Yeah. Anyway, so that brings us to the end of the show.
Kathryn Rubino: And almost the end of the summer. But then we check in with everyone again, well, be the unofficial I guess end of summer. Labor day is coming up. You got any big plans for the holiday weekend?
Joe Patrice: I wasn’t even tracking that it was happening until you said that so not really. But, yeah, I guess I should start winterfying things.
Kathryn Rubino: Is that a process for you?
Joe Patrice: Yeah.
Kathryn Rubino: Interesting.
Joe Patrice: On the East Coast, we live in smaller places. I got winter clothes. I got to take out a hawk and put summer clothes in.
Kathryn Rubino: Oh, like your wardrobe?
Joe Patrice: Yeah, winterfy.
Kathryn Rubino: Well, it sounds like you’re going to put a jacket over your house or something.
Joe Patrice: What would that even look like?
Kathryn Rubino: I don’t know.
Joe Patrice: A giant North Face over the –
Kathryn Rubino: I don’t know. That’s the image that I called to mind.
Joe Patrice: Wow. Okay.
Kathryn Rubino: A little scarf. You know how much sometimes they enter from worth five houses and stuff and like the eyes are the windows and the doors, the mouth. You can see a little scarf around the chimney level, just little scarf.
Joe Patrice: Yeah.
Kathryn Rubino: It’s cozy.
Joe Patrice: I know. It sounds great. Cool, but yeah, no, I haven’t really been tracking, so I don’t have any plans. What about you?
Kathryn Rubino: No. Maybe a barbecue or something less formal, but I feel like the summer has been crappy weather wise so I haven’t really had much –
— of an opportunity to enjoy the out of doors as much and even now that it’s hot, it feels incredibly humid and gross out there. But maybe I’ll get a burger on the grill or something fun like that.
Joe Patrice: Yeah. Okay, that’s cool.
Kathryn Rubino: Enjoy my day off. That’s what I’m definitely going to do.
Joe Patrice: Well, right. No, I think that’s fair. I don’t know as though I will enjoy my day off. I might just be playing catch up with all of the stuff –
Kathryn Rubino: You’re going to put your winter parker over your house.
Joe Patrice: Well, right, yeah. Anyway, cool. So thanks for everybody for listening. You should be subscribed to the show. That way you get new episodes when they come out. You should give reviews, stars, write something, engagement shows that you care, which is what all those podcasting services are looking for so do that. You should be reading Above the Law as always although, as we know, you don’t have to be a reader to listen to the show, but we do have some fun stuff on there that we don’t necessarily get to every week when we’re doing the round-up of stories.
You should be following us on social media. She’s at @kathryn1, the numeral one. I’m at @josephpatrice. You should check out the other podcasts. Kathryn hosts the Jabot. I’m on the Legal Tech Week Journalists’ Roundtable every week. And obviously there are shows that the Legal Talk Network does that we’re not on that you should check out as well. And with those things said, thanks to Nota by M&T Bank and Lexicon for sponsoring and peace.
Outro: 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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|Published:||September 1, 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.