Clarence Thomas takes some me time.
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...
An ethical quagmire surrounds Clarence Thomas. No, not that one. Not that one either. This one is about the gifts he’s taken over the years without disclosures. Donald Trump took all of a couple hours after his indictment to start riling up his mob against the judge and prosecutor. And a Paul Hastings associate issues some bad advice.
Joe Patrice: Hello.
Kathryn Rubino: Hey.
Joe Patrice: Welcome to another episode of — oh, okay. I really thought I was going to get through that.
Kathryn Rubino: I don’t know want you to.
Joe Patrice: Welcome to another —
Kathryn Rubino: Have I disappointed you in some way that you don’t think I’m going to do what I always do?
Joe Patrice: I am Joe Patrice. This is Thinking Like A Lawyer. That’s Kathryn Rubino. We are from Above The Law. We talked about the cool legal stories of the week and we have a bunch to talk about, but since we are not with my soundboard, we will not have a sound effect here. So, let’s begin as we usually do with our small talk about —
Kathryn Rubino: Small talk.
Joe Patrice: Alright, so —
Kathryn Rubino: Yeah, at least, I did something and we haven’t recognized that it wasn’t that small talk.
Joe Patrice: It is a small talk and what’s the smallest of talk you have?
Kathryn Rubino: I spent some time with family this weekend as one does when one spends time with smaller children and got pretty sick as a result.
Joe Patrice: Oh, —
Kathryn Rubino: Yeah.
Joe Patrice: That sounds terrible.
Kathryn Rubino: You know, there are little germ factories. They’re delightful but, you know, filthy.
Joe Patrice: Yeah. No, I hear you.
Kathryn Rubino: That is 24 hours stomach bug which I don’t think I’ve had since I was a child. I wasn’t sick.
Joe Patrice: Okay. You were sick and it was their fault.
Kathryn Rubino: Obviously.
Joe Patrice: So, that’s good to know. Both of us because listeners know this, both of us do debate stuff. We’re at a college debate tournament which is why our sound may not be as good as it usually is.
Kathryn Rubino: Certainly, why we don’t have a soundboard.
Joe Patrice: But we’re in lovely Houston, Texas for that and —
Kathryn Rubino: Yeah, the University of Houston is hosting the Cross Examination Debate Association’s National Championship. So, we are here to see the results of the final college policy debate tournament of the year, see who takes home the championship.
Joe Patrice: Yeah, yeah. Well, with all that said, we can move back to regular business and just charge through because we have some fairly significant news stories of the last week.
Kathryn Rubino: Do we? That’s interesting.
Joe Patrice: So, we’ll end small talk there. Well, let’s move to those big news stories. You have been covering Clarence Thomas for several years. What’s up with that guy these days?
Kathryn Rubino: Yeah, and I think this definitely plays into the overall story which is that it’s not just about I covered Clarence Thomas for a number of years. It said I’ve covered Clarence Thomas’s ethical lapses for a number of years.
Joe Patrice: Right.
Kathryn Rubino: And there are more. ProPublica put out a pretty detailed investigative report last week detailing very, very lavish trips that Clarence Thomas participated in without reporting them from getting these free trips from billionaire GOP megadonor Harlan Crow and not reporting them on any disclosure forms, no recusal for any cases, you know. Some of the allegations are just wow, you know, like Harlan Crow donated to charities that then turned around and paid Jenny, Thomas Clarence’s wife, a salary to participate, to do her political advocacy, another topic I’ve written a lot of words about.
Joe Patrice: Even though the Supreme Court does not really have ethical rules because why would they?
Kathryn Rubino: Rules are there are no rules.
Joe Patrice: Right. There are legal issues with government officials above and beyond Article 3 necessarily and, yeah, this is very much in breach of all of the implied understandings and requirements. He has claimed that he didn’t need to disclose any of this because he’s been friends with this guy for 25 years.
Kathryn Rubino: He has been a Supreme Court Justice for longer than that.
Joe Patrice: Yeah, he’s been a Justice for longer than that. So, the 25 years was not the flex that he thought of. Nonetheless, so yeah, he was taking a half-million-dollar vacations on somebody else’s dime. Not cool. That said, this is not new. Obviously, Scalia was doing the same stuff which is how we learned that he died because he was on a litigant funded vacation when he died. So, —
Kathryn Rubino: Yeah. I mean, that was —
Joe Patrice: The ethical lapses continue.
Kathryn Rubino: Yeah. I think that that connection to Scalia’s death. It was certainly something that was apparent to a lot of us when it first happened because, you know, Thomas takes these lavish vacations by a GOP donor.
I’m like, yeah. Yeah, I’m pretty sure a lot of them do. It feels like —
Joe Patrice: Yeah. A lot of the folks were very surprised by this and we were not having been down this road for several years, but yeah, the media is very shocked. There’s some conversation about impeachment that will not in fact go anywhere, but it is a conversation at least.
Kathryn Rubino: Yeah. I mean, I think it’s kind of interesting there are two reasons obviously why there will not be an impeachment of Clarence Thomas. The first is that the Democrats do not control the House of Representatives. So, there will never be a vote on Clarence Thomas’s impeachment. Kevin McCarthy will never let it get that far. So, you know, great. That’s just true, but even if the Democrats were in charge of the House, there are not 67 votes to vote for impeachment. So, even if that were true that his job — his lifetime tenure is in fact secure.
Joe Patrice: Yeah. But well, Ellie, Miss Dahl, who previously the host of the show, said some stuff over the weekend on the Twitters about how they should at least try to impeach him and I more or less agreed that this is kind of a no risk situation for Democrats is say we want to impeach him. It won’t go anywhere. So, they don’t have to drag themselves through a trial. But you know, they can sit on it that the people deciding what the law in this country are probably shouldn’t be taking six figures from —
Kathryn Rubino: Undisclosed —
Joe Patrice: Undisclosed.
Kathryn Rubino: — these years and I think that it’s interesting. Some of the anonymous information that we’ve got that folks have been reporting about why not every Democrat says that they would theoretically — again, it’s not coming to a vote anytime soon, but they would not theoretically support an impeachment is because the support for the Supreme Court is currently so low. We wouldn’t want to do something that would drag it down further and I think that framing of the issue fundamentally misses the boat. I think that hearing about these lavish trips that he gets better undisclosed, unreported. I think that that has far more damage to the credibility of the court than getting rid of somebody who refuses to disclose these megadonors in their lives. I think that it really misses the boat and we’ve been talking about since the Dobb’s decision happened when we’re talking about the creator and support for the Supreme Court to legitimacy problems, the ways in which it’s not just one issue. It’s the lack of respect for precedent on doing 50 years of reproductive freedom, the shadow docket and ethics issues that are all kind of coming to a head right now, and I would be utterly unsurprised to find out that this has another hit to the credibility and favorability of the Supreme Court for the American public. I think everything was interesting was — I know you had some thoughts on line about the justification that Clarence Thomas, he didn’t make a statement about the report saying that he was advised by people — I’m just who, who, who, who, who? We don’t know. No one would tell us, saying that he did not need to disclose these lavish gifts and the secrecy with which he continues to deal with this issue I think is just another way in which the credibility of the court is further eroded because even when caught with his pants here, you know, with his pants down about these trips still hides information. His default position is to use subterfuge to get out of it because he has a lifetime an appointment and there’s not 67 Senators who will do anything about it. So, that’s how many you need.
Joe Patrice: Yeah.
Kathryn Rubino: You’re not going to get them. So, I don’t really care is the overall attitude that I think his statement gives and I don’t think it’s a great look.
Joe Patrice: Yeah.
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Joe Patrice: Okay. We have another topic similarly politically charged. There was an indictment of Trump recently and he was advised kind of casually by the judge to not commit contempt in, what did he do immediately after that?
Kathryn Rubino: He went on social media and started ranting about the judge and the judge’s family.
Joe Patrice: You know, honestly, I don’t think these charges are particularly great. I think there are time lard and not —
Kathryn Rubino: Right, and obviously, the charges that we’re talking about are.
Joe Patrice: But record keeping, business record charges dating back a long way seemingly the theory is that it was criminal in nature and the hiding of it was ongoing and Trump being in D.C. meant he was not in the jurisdiction for them to even investigate it until now. There’s not a lot of — it’s not a great legal theory. That said, I think it’s actually almost crazy like a fox because you just needed to charge him with something and then he was going to commit criminal contempt that is not time-barred. Yeah. So, what exactly was he threatening?
Kathryn Rubino: Yeah. So, Judge John Martin had said don’t use social media to incite violence. And then, he turned around and started making comments about Judge Martin who had previously said on other cases or presided over other cases that the Trump organization was implicated in as well as the judge’s daughter who I believe worked for the biting campaign at one point and made these statements immediately after sending it six hours after being told not to and also about the judge’s wife and it’s not just a bad look for people on the left are seeing it but even Fox News. You do see one of their morning anchors went on record saying that it was a very bad look to attack the family of the judge because, you know, got it.
Joe Patrice: Yeah.
Kathryn Rubino: This is how bad it is, right? It’s not just people to the left of the political spectrum. This is the right wing as well saying, hey, maybe we don’t try to incite violence against a judge and their family.
Joe Patrice: It speaks to the complete lack of control the attorneys seem to have over him because this is an easy one. There are cases percolating or surrounding Trump that are actually problematic criminal cases for him, but this one is one of the weaker ones. He probably could have just kept his mouth shut and it would go away when they move to dismiss all this eventually. And then, he didn’t end and he’s got bad lawyers. You know, like —
Kathryn Rubino: Indeed, he just got —
Joe Patrice: Nickel.
Kathryn Rubino: He just got —
Joe Patrice: Yeah.
Kathryn Rubino: — Todd Blanche, formerly of Cadwallader, left the partnership at Cadwallader to defend Donald Trump in this particular case and I think it really highlights the uphill battle that Blanche has.
Joe Patrice: Frankly, I think having Susan Necheles on the team is actually more important not to diss planet or anything but that’s like I’d be having run in those circles. I could have you her as the superstar on that team and, yeah, just no control. Like all you need to do is not invite contempt and he ran right out and get it. That is — yeah, they got no control over the client.
Kathryn Rubino: Yeah. And frankly, I think this is an incredibly predictable conundrum that his legal team finds themselves in. Bill Barr went on TV saying of Blanche because he can blend those who left the partnership specifically for this, you know, a big law partnership for this engagement so that I think there’s a lot of focus on that choice and Bill Barr is like he’s going to regret it. This is not somebody you can reason with. This is somebody who is known for not paying his lawyers. This is someone who invites contempt. This is someone who wasn’t going to listen to you. It’s a job, you know?
Joe Patrice: But it is interesting and we had recently this conversation about —
— contempt civil and criminal and the distinctions between them and yada, yada. But yeah, Justin Martin wants to refer this to the DA. One would assume the DATED would take it up gladly to add to the claims they’ve already brought, but oh yes.
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Joe Patrice: And we are back. What’s — you know, you worked in big law.
Kathryn Rubino: I did, I did. So, did you as it turns out? It’s funny.
Joe Patrice: I did, I did, I did. Yeah. No, how are the hours?
Kathryn Rubino: Terrible. One of my enduring memories of that sort of era of my life was not being able to go out with my friends until midnight or later and there was a restaurant we like to go to for sort of drinks and whatever and calling the restaurant to find out their specials of the night, called and then texting my friends like, hey, put in this order before the kitchen closes, taking one the car service that my firm provided to the bar, you know, going out having whatever specials until the bar closed at two or probably closes later, going home sleeping for a few hours, turning around, going back to work and doing the same thing the following night when I would get out maybe at midnight.
Joe Patrice: Yeah. But at least, they’re getting out at midnight, not working 24/7. So, that’s good. Yeah, this is all set up. Paul Hastings apparently for reasons that boggle minds turned over to a Senior Associate the job of teaching Junior Associates best practices and put out a slide saying that you are online 24/7, no exceptions, no excuses. So, the hours have escalated apparently.
Kathryn Rubino: Yeah. I mean, a couple things about that line. First of all, where is the partnership, right? Okay, yes.
Joe Patrice: Right.
Kathryn Rubino: I see, you know, yes, say to a Senior Associate you’re going to give this presentation. Here’s what — you know, this is the parameters. Go for it. Let them do it, but you don’t fumble through the slides before they give the presentation to all of the Junior Associates. That seems wild to me to not even like want to see what your letterhead is going out on, like just thumb through and this 24/7 language is pretty obvious right from jump.
Joe Patrice: Partnership has said that they are aghast by what happened is what they’re putting out there. So, good for them on the back end.
Kathryn Rubino: And, you know, maybe they are. I mean, I don’t want to necessarily doubt what the folks are saying now and that’s fine and fair. But to be clear, you’re only aghast because of news now, because that slideshow leaked out, right? And there — who knows how much of this advice to Senior Associate had already been giving out for how many years and how they probably learned it from Senior Associates ahead of them, right? This is not something that one person brings to a firm, especially someone who’s still an associate. They don’t bring this attitude to the firm. They don’t know what firm life is like. They learn it by being at the firm, right? This is inherited.
Joe Patrice: Yeah. Culture is an overnight. Yeah.
Kathryn Rubino: Yeah, and this is —
Joe Patrice: It’s a long-term thing.
Kathryn Rubino: — obviously part of the culture even though management perhaps wishes it weren’t and this is something we’ve talked about a lot where off — you know, sometimes, I speak to managing partners of big law firms and they have these lofty ideals of what their firm is really.
Joe Patrice: Yeah.
Kathryn Rubino: You know?
Joe Patrice: Look at you.
Kathryn Rubino: But they have these ideas of what their firm should be like or what really is like. But I was like, how do you know? How do you know what it’s like to be a third year associate at your law firm? How do you make sure that the ideals that you say management has actually trickles down? Big laws lots of fiefdoms. If you’re the partner or group that you work for are a bunch of 24/7, you know, work terrible kind of atmosphere people, how do you prevent that from happening?
Why do you care if they’re still billing hours and how are you monitoring what life is actually like, folks?
Joe Patrice: My take away from it was more. I thought that the 24/7 might have been the least stupid thing in that slide. They were way worse. Get some advice. Like the client is always right and I’m like, no, they aren’t. They’re usually wrong. That’s why they hire you.
Kathryn Rubino: That’s why they have lawyers, actually.
Joe Patrice: Yeah. You do not want to fall into the Elon Musk trap of saying, you know what? Let’s wave due diligence to get this deal done and then stupidly law firms agreeing to that.
Kathryn Rubino: Well, I mean, it’s stupid though because they still got paid, right?
Joe Patrice: I guess, they got paid. Yeah. But the client isn’t always right. You do need to exercise professional judgment and, yeah, the junior may not be the one doing that but understand that your answer is not that the client is right. Your answer is, I will communicate that to the partner and the partner will tell me what to do because that’s where the judgment is. That’s why the client has hired somebody, but that was my —
Kathryn Rubino: And that’s how he’s a Junior Associate or even a Senior Associate, you start to learn how to exercise legal judgment and the right way to finesse clients. That is not an innate skill that someone is born with, how to get clients on your side. That’s something you have to watch happen and you have to see and if you’re just assuming the client is always right from the time you’re being told if that’s the way it is as a Junior Associate, how are you ever going to develop that skill?
Joe Patrice: Yeah. I mean, they want counsel. And so, if you are not providing them judgment, you’re just rubber-stamping things that is not the skill that they want paid. That said, there was another issue which is that the Senior Associate told the Juniors, one, to recognize that they cost a lot of money per hour and to be efficient and care about the client on that which, you know, whatever.
Kathryn Rubino: Great. Actually, good advice.
Joe Patrice: Fair enough. But also, never ask a question of a senior always have an answer, I don’t know, is not an acceptable answer which it absolutely is because if you don’t know, don’t make it up. That seems like a bad idea. Also, —
Kathryn Rubino: Yeah. What is that encouraging? Like just going to ChatGPT and what’s their answer.
Joe Patrice: Yeah.
Kathryn Rubino: This is how you get these hallucinations that AI is known for.
Joe Patrice: Yeah. The slide even says that as a very last resort, ask one of your classmates and I’m like, no, ask you, the Senior Associate. You don’t necessarily go to the partner with it, but it’s your job. It just seems like the Senior Associate was trying to avoid any and all responsibility here which, you know, good try. But no, that is your job as a Senior Associate. I like really egregious I felt it’s because not knowing the answer and caring about what the client pays, you don’t want a situation where the client is paying for you to spend 45 minutes on Google asking a question that you could just call the senior and get an answer for it.
Kathryn Rubino: Right. So, that advice appears to be in conflict with their early advice about being efficient.
Joe Patrice: Yeah. Look, I was a junior and ultimately a mid-level and like all of those tasks and your job at the senior level is to be that contact person who answers those questions and that is what you do and, yeah, it does cost the client a little bit more for you to bill your point one at a higher rate, but it’s for efficiency sake and it makes sure that the Juniors are getting their job done faster and that’s your role and you should not be trying to pawn that off on the Juniors to just search Google, whatever. The slide has language like use Google or Lexus or what. It like lists a bunch of things that they want this young lawyer to ask before bothering the delicate genius that is a mid-level associate.
Kathryn Rubino: Yeah. I think it is important though that this got out and I’m certainly glad that we all know about it now because I sometimes think that folks outside of big law think that we’re exaggerating when we talk about big law and seeing the actual documents that come from it. It’s like no, this is what they’ve decided to write down.
Joe Patrice: Yeah.
Kathryn Rubino: This isn’t somebody with a law degree decided to end a high paying, high-powered job decide to sit down and put this language to paper. So, you can only imagine what’s actually going on in sort of the lives of folks at these verbs.
Joe Patrice: All right, anything else on that topic? No.
Kathryn Rubino: Yeah, big law still sucks you guys.
Joe Patrice: Yeah.
Kathryn Rubino: Breaking news.
Joe Patrice: Good luck to everyone out there. All right, well, we can wrap up a little early and get back to our administrative tasks on this end. With that said, you should subscribe to the show if you haven’t already. Like when you get the new episodes when they come out, you should give us reviews, stars, write things always helps. You should be reading Above The Laws, so you hear this story and these stories and others before we have an opportunity to chat about them.
You should be listening to the Jabot, Kathryn’s other podcast, or the Legal Tech Week.
Kathryn Rubino: Oh, man, so close.
Joe Patrice: Legal Tech Week.
Kathryn Rubino: Journalist’s Roundtable.
Joe Patrice: Yeah, which I’m a guest on or any of the shows on the Legal Talk Network. You should be following us on social media. The website is on [email protected] blog, Kathryn’s @kathryn1, which is a numeral one, not the word written out. So, there’s that. I’m @josephpatrice. We have blue checkmark still as far as I can tell, but whatever.
Kathryn Rubino: At the moment. We do not pay for that.
Joe Patrice: Currently.
Kathryn Rubino: I would say that. We do not.
Joe Patrice: Yeah, we do not. No, yeah. No, we intended to not have them, but apparently who knows. No, I think that’s everything, good stuff. Yeah.
Kathryn Rubino: Yeah, check us out.
Joe Patrice: We will check the folks later.
Kathryn Rubino: Peace.
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|Published:||April 12, 2023|
|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.