Donald Trump got indicted since we last convened. And then the case got assigned to the same judge who got professionally scorched for trying to bail Trump out in the first place. Apparently he thinks the government pays people to plead guilty? It’s all very weird. Davis Polk plays follow-the-leader with Skadden and announces a 4-day in-office work week — is this the start of a trend or not? Barber Ranen is no longer Barber Ranen after racist, sexist, and antisemitic emails between the founders at their last firm came to light. There’s a lot to be said about baked in structures of discrimination and casual bigotry, but also… how did labor and employment attorneys think it was a good idea to put this in writing?
And we talk about a bear cop.
Joe Patrice: Hey, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Chris Williams who also is with Above the Law. I don’t know why I always say where I’m from first if we’re all from the same place. I should probably wait, right?
Chris Williams: Old habits die hard.
Joe Patrice: Yeah. So yeah, and we are here as usual to talk about some of the big stories of the week that we’ve covered at Above the Law, you know, but we start off as always with a little bit of small talk.
Joe Patrice: Which is kind of a cover for another legal story but like maybe a little less exciting one. Chris, have you followed the Fourth Amendment there?
Chris Williams: I did, and for those listening, this isn’t a new fancy Twitter account that sends out notifications whether Fourth Amendment case with bears happened. But I wouldn’t be surprised if that becomes a thing.
Joe Patrice: It may well be, if it is. I think I would hope it would have one tweet. I would hope there’s not a lot of Fourth Amendment bear cases, but who knows?
Chris Williams: I find it interesting actually. The Libertarians are big on two things. One is being against government tyranny and second being knowing every state’s minimum age of consent laws. But I don’t know with this one, I found it interesting, they were making the argument that the government functionally turn these bear into a bear nine.
Joe Patrice: Yeah.
Chris Williams: And I read your take on it, it was like, no, they just wanted to — I feel like your take was no, they just want to see who’s feeding these damn bears.
Joe Patrice: Right. So —
Chris Williams: That the state has an interest in doing what it did that’s besides surveillance.
Joe Patrice: So to look to lay this out for people first, we got to lay the groundwork here. So this is about a bear in Connecticut, that Wildlife Officials put a camera on and then turn the bear loose. The wildlife officials are now being sued and it’s become kind of a cause of an libertarian circles as Chris is saying because they’re being sued by property owners of a 117-acre property, who claimed that the government by putting this camera on this bear that they assumed, that the government assumed they claim would eventually end up on this family’s property, they had really turned it into a reconnaissance and a warrantless reconnaissance of their territory and that it was taking pictures and video of their home and all and so they’re suing and claiming constitutional violations.
Okay with that groundwork said, go for it.
Chris Williams: Yeah. You know lawyers are apt to lateral thinking and coming with bad hypothetical scenarios. I mean it’s why we hate Gunner so much, but I just thought about a scenario like is it really catch all of defense for governing body to be like, oh no, we’re doing this because of some legitimate ecological interest, even if it has the effect of surveilling people. So for example you know that mean that birds are actually just government drones, right?
Joe Patrice: Well yes, because that’s yeah, that birds aren’t real.
Chris Williams: Because that’s not real true, they aren’t real.
Joe Patrice: Yeah.
Chris Williams: When COVID happened, when COVID happened, I’m sure everybody else noticed that there was like a lot of those are different Government funding and they were like no birds outside. Anyway, it was weird.
Imagine if there was some study that I don’t know like the Department of Ecology, let’s say that’s the thing. They decided to document the breeding habits of pigeons in high crime areas and to do so, they just attach small cameras to their feet or to their necks just so they can see what the pigeons are doing. And of course, I had the effect of being able to like, give high detailed information about what everybody in their surrounding area was doing. I don’t understand why somebody like hey this is an intervention in, an expectation of privacy.
Joe Patrice: Well, so, so if they’re doing it outside, there’s not really an expectation of privacy. So it’s — the key to this is that they’re trying to say that this bear got close enough to get pictures inside their house. Because even though the libertarian argument is, hey, it’s our property, it’s so anywhere on our property, they can’t go. That’s not how the law tends to be. The law tends to say that if you own 117 acres like you have the Open Field Doctrine, you don’t have an expectation of privacy out there.
Chris Williams: Sure.
Joe Patrice: But it’s also true that, so do you have a — did the government have a reason to do this. So as it turns out the part of this story that a lot of the coverage was glossing over, is that the basis of putting this camera on these bears, as these bears are getting closer and closer to residential areas and they want to find out why, and they suspect that it’s because the bears were being fed by humans which is luring them into the area. And in particular, it seems as though it might be this couple who is feeding the bears. And so they put a camera on it to find out who’s feeding the bear, which seems like that’s a pretty reasonable search.
Now what happens with the bear if it gets close enough and is taking pictures inside a house, you know if, it would be bad, but I don’t think it’s anything that isn’t terrible by just not letting those pictures form the basis of any kind of prosecution, right? Well yet, we have this situation a lot that whole fruit of the poisonous tree thing. If, if the government comes upon evidence that they shouldn’t have, then they can use that evidence to pursue claims against somebody and that cures the problem. But yes, so this is – yeah.
Chris Williams: I mean that’s little naïve. I mean it’s also the case like if prosecutors have evidence that you know could be helpful towards proving somebody’s innocence they are required to let that be known to the other party. But it’s not like the (00:06:00) rule will prevent those things from happening. I mean it does to some degree, but it doesn’t like rule out completely. So like I don’t think it’s a save all to be like, oh well, open field doctrine.
Joe Patrice: Yeah. So right. So okay, fair enough. A lot of the times this is abused and the police are allowed to find, they’re given Court blessing to find all sorts of workarounds to this doctrine, that’s fair, but it’s also true that in — we decide these things in like as a matter of law, we decided them in kind of like a platonic ideal. The courts going to say that would be the cure to the problem, maybe because we don’t think this couple actually has, I mean, who knows, but we don’t actually think this couple has anything going on in their house that would give rise to a prosecution.
So my assumption is the court will just say if you did, we would exclude that. You’re correct, oftentimes there’s abuses in that exclusion process, but that’s the “cure” assuming it is applied correctly.
So yeah, I think this is a dumb case, but nonetheless, but yeah, no, it’s being hyped up as, animal spies. I don’t know.
Chris Williams: Yeah, I do agree that it is dumb, but you know that time where like the — it’s like sometimes Turley makes a good point. I haven’t seen it happen in the wild, but maybe.
Joe Patrice: I did, I did. I guess, it just happened. He was on Fox News to talk about how the indictment of Trump was completely nonsense, and he got very like, almost like he’d been hit with a newspaper, like a dog hit with a newspaper situation. He was just like yeah, no, this is, this is real bad. So I feel like if I did see it happen. He had a moment where it was a broken clock.
Chris Williams: But yeah, so like with that in mind, I’m reading it and I’m trying to think this is sort of hypothetical and again, like just some, some possible world in which there would be something that looks like the deputization of animals given the pretense of some, some colorable thing, may be like justified by like police power, like state police power or some shit like that or public safety. Because I can also see how this is being read is like, note this is a public safety issue, it is not about your privacy, because like sure, I grant that in this instance, like Open Field doctrine is relevant, but like, I’m trying to think what’s the — what’s the interesting scenario. Like —
Joe Patrice: No.
Chris Williams: No.
Joe Patrice: I agree that you certainly could say, if you knew this bear went on to their property and you assumed that they were running a meth lab in their house or something, and you said, oh well we’ve just put a camera on a bear and it just happened to catch the meth lab in there. That would be a warrantless search, right. But I don’t think that is a reason why you can’t put the camera on the bear for the purpose of figuring out whether or not it’s being fed. It’s just a reason why the court shouldn’t be allowed to use any of that evidence for anything other than is someone feeding the bear.
I mean that’s what I think, but you are — I mean you’re right that at what point does the fact that this doctrine gets applied badly all the time. Pushed toward the argument that you shouldn’t allow this kind of a search to happen in any event. Yeah, that kind of doctrine can’t protect people in their own homes still.
Chris Williams: Right. And just to be clear like I’m not trying to defend Libertarians. I mean, come on now, like they do CrossFit, it’s nice. They can defend themselves. But it is just interesting to think about the implications of their best arguments.
Joe Patrice: Yeah, I thought this was a berry, berry stupid case.
Chris Williams: If I read another thing that is this (00:09:41) written by you, I’m back in the States.
Joe Patrice: Yeah, no, I mean.
Chris Williams: Bear freight, bear freight, okay. Bear arms, we’re going to bear arms, how about that?
Joe Patrice: All right. No listen. It was all, no, that, well that’s the thing. They didn’t take away the animals arms and that’s the only any real rights that it has, the right to have its arms.
Chris Williams: And at this point everyone is lucky, I do not have access to the soundboard.
Joe Patrice: All right, all right. Well, let’s have a pause on that and oh —
Joe Patrice: And end small talk there and get to like an actual subject. So actual subject, was there any big legal news towards the end of last week I might have missed it?
Chris Williams: No.
Joe Patrice: No. Yeah.
Chris Williams: I’ll try to like, I don’t know like some, some Trump dude.
Joe Patrice: Oh yes.
Chris Williams: In the news again.
Joe Patrice: Yes. So we have an indictment, a Federal indictment of Trump in the classified documents case. It’s fairly significant, it’s 37 counts. The indictment is, it probably is a lot worse than I think a lot of folks thought, and I think a lot of folks thought it was going to be pretty bad because mishandling documents and not turning them over and then allegedly lying to the government that you had done a search and turn them over. And when you hadn’t is real bad, however, the indictment seem to have a lot more about taken from the attorney notes. Seems though, there was some moments where Trump was confronted with this and pitched, let’s just tell them we don’t have anything which would have would have been a lie. There is some evidence in there that he was aware that these things weren’t declassified which somewhat blows up his argument that he declassified everything and that’s why this doesn’t really matter. It’s, it’s a pretty, pretty rough document there for the Trumpster.
The next development with this case, of course, was that it then goes to – it’s assigned initially to Judge Cannon, who folks might remember as the Judge who tried to kill the warrant in the first place by allowing a weird collateral attack civilly of a criminal investigation, it was it was a bold attempt. It was an attempt that led an arch-conservative panel of the Eleventh Circuit to write a scathing opinion calling her an idiot. So, she’s got this case again, we’ll see how long that lasts. The arraignment is going to be theoretically on Tuesday. We’ll see there’s some question whether or not Trump can get local counsel in time. One would expect the Department of Justice will ask Judge Cannon to step aside at that time given that she has already been, been slapped silly with regard to this case. There’s some good legal precedent for a judge to be recused if they’ve made statements similar to the ones that she made in that earlier action.
So one would think she’d recuse — well, that’s a question, do you think she — the law seems to be pretty good that if she were to fight to keep this case, the Eleventh Circuit would probably tell her no. That said do you think she goes forward to this or did she get out of the way?
Chris Williams: So the thing that, I think it is interesting about it is, it kind of just happened, like it just fell onto her, it fell onto her lap, and like she saw this out. The process by which this came to be heard one dealing with it was completely fair game and —
Joe Patrice: Well good, yeah.
Chris Williams: She could just decide to like, be like, hey, I’m going to — I’m not biased and I can do that cause she’s already on Donald Trump case, so she does like some basis for, oh, this is just another one.
Joe Patrice: Right. So the question of course is, does she — if she does that, I think, so I guess and you are right that this was a random, a real assignment, so it was randomly assigned to her. That said, question, there’s a deeper philosophical question of just how random it is given there are multiple vacancies in that district that are open for longer than Biden has been President and these vacancies are open because Marco Rubio is preventing them from being filled. So there was a like a one in seven chance that she was going to be the Judge when in actuality it should have been a one in 10 if not a one in 11 chance.
But it happened. The odds were better for her to get it for political reasons. But so, there’s that philosophical question. But right. Yeah.
Chris Williams: Well, I think there is a distinction between like issues contextually and issues procedurally, I’m saying procedurally, it doesn’t seem there is any fault.
Joe Patrice: No, yeah, yeah. I mean they spun it. Yeah, it’s random. It’s not like they tried to give it to her.
Chris Williams: Yeah.
Joe Patrice: There had early on been some thought and I actually entertained this thought that administratively, put aside how that other case ended, administratively the court might have said she’s already had a case related to some of the underlying facts and so it’s efficient to give it to her, but apparently that wasn’t the case. But in any event, yeah, the case law seems pretty good that she would be kicked off this case if she let it, if she let it ride.
Now does she want to be a hero and let it ride, and let herself get scolded again by the Eleventh Circuit or does she run and try and avoid getting that career albatross, it’s going to be an interesting question, it’s going to say a lot about what she thinks she is. Does she think she’s a Judge, or is she really angling to be a political hack?
Chris Williams: I felt like the biggest consequence in your article was like, but what about the rule of law? And like, I don’t really think that as a consequence as much teeth left to it. So like I don’t — so like so what, so what she does and it’s like, would be really bad for historians looking back on his period, we’re in this context, we’re in the situation because —
Joe Patrice: Yeah, I just —
Chris Williams: We are in the rule of law crisis.
Joe Patrice: Yeah. No, I mean, that’s true. Like a lot of people online are making the point that, you know, like she’s got a lifetime job, why would she even worry. But you know like, it is a lifetime job, but judges in some ways they have to live with this going forward. And they deep down 99% of them, they want to be viewed as professionals, they want to be respected. It’s a whole thing. And when the Eleventh Circuit and when conservatives on the Eleventh Circuit are writing opinions, mocking your ability to understand basic law, that stings. It means it’s hard for you to get clerks, it’s hard for you to get outside teaching assignments, it’s hard for you to potentially transition to practice if you ever wanted to go back, it’s hard for you to run for office if you choose to go that route. Like I don’t know, I feel like deep down, she’s got to look at this and think this is, this is not worth it. I am going to lose anyway, I may as well get out of the way myself, but or she can try to be — try to be a MAGA hero. It would fail, but it would be something she could try.
Chris Williams: I mean it. people do a lot for the sake of martyrdom.
Joe Patrice: Yeah.
Chris Williams: It’s like, there’s a way of romanticizing even the risk of failure. So like it’s — so like I think that like because I’m hear you saying was like, oh it would be a blow to ego if she would let the —
Joe Patrice: Certainly blow to ego, yeah.
Chris Williams: But like, it also depends on like what hills we are willing to die on for you to be able to like, oh, this person’s ego not allow them to do X, Y, Z, you know.
Joe Patrice: Yeah, I — I don’t know. I feel like it’s just so hard to keep doing this job day in and day out if you’re getting battered like that reputationally, but don’t want to cut this short, but I also have a feeling we’re going to be talking about this case again a few times probably before it’s all over.
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Joe Patrice: Okay. Transitioning from the heavy criminal stuff to less criminal stuff. A big law question, Davis Polk joined the four days in an office revolution that Skadden started a little bit ago, so they’re going to transition to requiring everyone to be in the office Monday through Thursday. This is a quite the reversal from a firm that had been on a three-day process and had been making statements as far as anyone can tell that this is working, we love our system, we don’t need to change and they are now pulling that rug out now that they see another firm having done it. Questions on the table are, well one, what the hell and two is this the beginning of some kind of a cavalcade or is this slippery slope going to stop with these folks?
Chris Williams: Is it to be decided, but I’m also like, I wonder how much of this is real estate interest playing it.
Joe Patrice: Yep.
Chris Williams: Playing it, you know, because it has to be a big part of it. It was like, hey, we’re running out these office spaces, and people are only in, I say, 60% of the time, we need to bump it up to 80. I don’t know, because we have, I don’t know whatever contracts. But the (00:19:53) was in there like a (00:19:54).
Joe Patrice: I’m sure it’s a long-term lease. Yeah.
Chris Williams: Yeah. And so like my thing is like wondering if this is the four-day workweek, it’s the happy medium between real estate cost and need to have people there in person for mentorship or just another cut before it’s back to five and then six and then eight day weeks. You know back in the golden days before the air was spicy.
Joe Patrice: Yeah, like look, people are — these are big law firms that are working seven days a week anyway, the question is just where they do it and is — and we’ve actually reached a point where this isn’t like the pure working from home era of the pandemic or we were on three and we’re talking about four. So it’s really not fair to try and compare this to people working from home. It’s fair to compare it to three. Is adding Monday to the calendar really the thing that makes all the difference in mentorship or whatever. It justifies having the office space I suppose, but the office space is baked in whether you’re in there or not, you could at least turn the heat off if people are there all the time I suppose. But I mean the take that I gave in one of my articles about it was that what’s really going on here is there’s a slice of the partnership to once friends around. They feel lonely going in the office. They like going in the office and they feel lonely and they want the people that they pay a lot of money to pretend to be their friends to be in the office with them pretending to be their friend. And that’s why we’re in this joint. And I’ll say, I made that comment and an anonymous, I’ll leave them — a partner did write and say yeah, that’s pretty much what my colleagues are thinking. I could go ahead and say, that’s my interpretation of what my colleagues are thinking, not a partner at Davis Polk or Skadden, but at another firm saying that in those discussions, that’s the takeaway that the partner gets is that, it’s just, we really, we really want the little sycophants around you know.
And like look, it’s nice to have sycophants. I’m sure. I mean, I don’t, I don’t because I’m just a blogger, but like, if I, if I were a big law partner, I’m sure it would be nice to have 20, 30 people who feel like I’m the reason they get paid, but whatever.
Chris Williams: I think it’s a just a sad situation to be and not for the associates but also, but just for the partners. I mean there has to be the big law equivalent of thinking that the waitress (ph) actually likes you, you know.
Joe Patrice: Yeah, right.
Chris Williams: They are only there, because for the check. This isn’t, I mean, if your idea of a social interaction is contractual obligation then get better friends.
Joe Patrice: Yeah, you don’t need but that’s the thing when are they going to get better friends, they’re working a hundred hours a week. They don’t have time to go find friends. Anyway —
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Joe Patrice: So let’s talk about the law firm Barber Ranen which no longer it is Barber Ranen. Like that chuckle was kind of the — it’s a serious issue, but —
Chris Williams: It’s just, I just imagine like (00:23:58) somewhere looking down shaking his head because I thought that’s the only person that should be like formerly known as, like firm go as, formerly known as after like, what was it, was it even two weeks?
Joe Patrice: No, it was, it was real fast.
Chris Williams: It’s real fast.
Joe Patrice: So Barber Ranen was the law firm that was, we talked a little bit about it when it happened, major defection from Lewis Brisbois. They brought two labor employment lawyers in California who took over around 100 other of their colleagues to form a new firm. It was a big blow, obviously Lewis Brisbois is a big firm and so losing a hundred some odd lawyers is not the end of the world. But it forced the founder into retirement basically from stepping down from managing. So it was a big deal.
And then a couple weeks later the New York Post is given some emails that Barber and Ranen exchanged over the years. I don’t know, like very convenient that the spurned law firm managed to hand these over.
But we have years’ worth of racist, sexist, antisemitic emails exchanged by the named partners of the new firm and they have already left. So firm has now changed it’s name, it’s questionable whether or not it’s going to keep going. I mean, obviously the named partners are probably the most significant rainmakers, so we’ll see.
Well, you know what’s interesting what my take away from it was and this is — I mean there’s a lot to take away obviously, but the dumb thing that I took away and I think I think we all depend on Above the Law to come away with kind of the dumb but significant thing, right, I think that’s fair. Why are these emails, how do they still exists? Like, do you not have a document retention policy, like, why are there emails with these sorts of things in them from years and years ago still in the system? Like you’ve got to get rid of that, like, put aside the content of the emails, if it’s not going in a case file or matter file, it should be gone within, I don’t know, six months, a year or something like that. Like what’s going on at Lewis Brisbois? That was my tech takeaway of this story, like above all the substance of it as bad as that was, all I could think is how, how badly run is that document retention program.
Chris Williams: My immediate thought was so a labor and employment cohort was immediately disbanded because of the labor and employment issue. Like you would think that these are — I’m just thinking about it substantially. Like these are the people that should know, hey, you don’t want to have a paper trail of shit like this.
Joe Patrice: Right.
Chris Williams: Like, not even like that. I mean, yes but like yours, so yours are like the tech avenue of the paper trail.
Joe Patrice: Yeah.
Chris Williams: I’m like the — this is your bread and butter.
Joe Patrice: Yeah.
Chris Williams: This is like, this is like —
Joe Patrice: This is all the stuff.
Chris Williams: This is like, Cochran getting called — Cochran getting called slurring people while trying on gloves that fit him. It’s like, come on, this is you, this is your thing, why you are you doing it?
Joe Patrice: No, that’s fair. And obviously, they’re big firms, so they’re more on the side of companies than the folks who are discriminated against but you know like you said that’s more reason for them to be on top of what you don’t leave as a paper trail.
Chris Williams: Like mid slurred, they should have been like hey, this reminds me of last week anywho you know I don’t like, come on. When you are the hypo, it should the ding, this should be a bell dinging.
Joe Patrice: Yeah. I wonder if — and this is like, I have not really thought this through but I wonder if as a Practice Group it cuts the other way sometimes too. Like on the one hand, you think they should know better, but on the other hand because they deal with these sorts of issues so often these, they, it doesn’t even register with them sometimes the impact that using the sort of language can have, because they, every matter they have involves it and they’re constantly dealing with people saying this or that or whatever. And so they — it’s almost like they’re surrounded by it and it becomes — they become numb to the impact of it, I don’t know, outside of a professional context, I don’t know. Maybe it’s, it’s certainly something that you would think they would view with a lot more sensitivity, but I mean, maybe that is, that’s the issue that they, they become numb to it at a certain point. But yeah.
Chris Williams: So you saying that remind me the scenes of Breaking Bad where you know Hank the agent, he goes, he gets a promotion and then like he’s just straight up being a bigot and it’s like, I don’t know when they are going to get these guys. And they are like, hey what are you doing man, we will do that here. There is certainly like contextual understandings, like because really people policing the stuff we can do this sort of situation going on.
Joe Patrice: Yeah, exactly, I gave, that’s a good analogy like do you feel you are the police of it so you think you can get away with it, which I will just throw a plug in, not that we’re covering this topic today, but that was my takeaway on the Alabama Maps case in the Supreme Court that John Roberts was less changing to become more open to discrimination in election law and more thinking, wait a minute, I’m the one who gets to decide now. So I don’t like, if I’m the police of this, I don’t care anyway.
So people can read that if they wish. Anyway. Yeah, no. I think that’s everything unless we have some other — I don’t know animal-related constitutional law issue.
Chris Williams: Well, I will say our small talk was at least medium talk. So just in case anyone’s interested to think about it, visit Angkor Wat, it’s very nice. It’s in a Siem Reap in Cambodia, it’s like, like it was like a long, just old civilization got found hundreds of years later, it’s lot of things people can make without internet access. Like, I’m just seeing these buildings. I’m like, who etched that.
Joe Patrice: Yeah.
Chris Williams: With what. Like they had, there were these massive stone temples that had irrigation systems.
Joe Patrice: Oh no, oh no, Chris is going full Ancient Aliens on us.
Chris Williams: No, I’m not, less Ancient Aliens more, what Lowes did they go to or what Home Depot did they have back then that we didn’t know about? Because I’m like this, how did they do that you know.
Joe Patrice: Yeah, it was a spec then. Anyway, all right, so with that said we will close up now. So thanks for listening. You should be subscribed to show to get new episodes when they come out. You should be reading Above the Law. You should also listen to The Jabot, which is Kathryn’s who is not with us now but Kathryn’s podcast, you can listen to the Legaltech Week Journalist’s Roundtable which I do, which I’m panelist on every week. We had a very extended and robust discussion of the bear case there too.
You should check out the other offerings of the Legal Talk Network. Be sure to read Above the Law to read these and other stories before we talk about them. Follow on social media, the publication is @atlblog. I am @josephpatrice. Chris is @WritesForRent, as in he is writing things for you to read or rent, so that’s that.
Yeah, I think that’s everything. Do all those things. Leave us reviews, stars, write something nice, it always helps with the algorithm, and with that, we will talk to you next week.
Chris Williams: Peace.