Donald Trump is struggling to find representation in his multi-count federal criminal case and it shows because he just can’t stop saying incredibly damaging stuff about his case. Like how he will plead guilty for money. This is what happens after decades developing a reputation for stiffing attorneys. We also have more layoffs from Orrick and Reed Smith — what can we glean from these moves? And a Massachusetts court expanded the standard for ineffective assistance of counsel to include instances where the lawyer is clearly bigoted.
Joe Patrice: Hello. Welcome to another yeah, well, there we go. So thank you. Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice. That’s Chris Williams. We’re from Above The Law. We’re here to talk, as usual about the big legal stories of the week. That was for those of you who are trying to keep up on the news. As it happens, there were some real developments. But first, we will begin, as usual, by having some personality, showing some personality with this show by having a little bit of small talk. Hi. What’s up with you?
Chris Williams: No, I’ll let you be personable first.
Joe Patrice: Okay. Last week, I attended former host of this show, Elie Mystal’s book. His book is now in paperback, so I attended his paperback release party.
Chris Williams: Is it plug? What’s it called?
Joe Patrice: That’s a great question. I’m pretty confident I know what it’s called but it’s also one of those things. I’m pretty confident it’s a ‘Black Guy’s Guide to the Constitution’, but I want to make sure that I’m not misquoting it slightly. Oh, that’s actually the ‘Black Guy’s Guide to the Constitution’ is the subtitle. That’s the issue. It’s allow me to retort is the official title and then colon a ‘Black Guy’s Guide to The Constitution.’ So that is now out and you can go pick that up if you were one of those people who didn’t get it in hardcover and want the paper back, it’s out there. So I attended that, which was fun. I got home from that and severely twisted my ankle to the point where I had to go to doctors. I was fairly confident I’d broken it getting off the train.
Chris Williams: I’m assuming that part wasn’t fun.
Joe Patrice: It was far less fun. It was excruciatingly painful. But as it turns out, it was no fracture. So I can walk around with a boot and a crutch to kind of keep me balanced. And they say it’ll get better in a couple of weeks.
Chris Williams: Well, that’s good. My weekend wasn’t nearly as social, but it was good nonetheless. Me and Bei(ph) had a staycation. We decided to, we moved the bed to the living room and camped in the living room.
Joe Patrice: Yeah, nice, nice, nice.
Chris Williams: We finished, what was the show? It was a show called “Komi Can’t Communicate” which is an adorable show. It’s about this girl that has social extreme social anxiety. And it’s like a real nice, real nice, cool, like, brain dead, feel good show. It’s nice. And we watch a couple of episodes of “Breaking Bad” just to balance out the media consumption. We’re on Season 3, so for those of you that are familiar, Gus is in the part. Gus isn’t Gus yet, so he’s still the guy that’s at the chicken shop, but he’s not the guy at the chicken shop. That’s later in the part but it’s amazing. It’s amazing.
Joe Patrice: Fair enough. Well, okay. So with all of that, we’ve talked about our lives. We seem like human beings, so we seem relatable to the audience. And so with that done, we can talk about law ending our small talk. I guess the biggest news of last week was the Trump arraignment on federal charges. So we have that now looming over everything.
Chris Williams: Is there a week where that wouldn’t have been the biggest thing in the news?
Joe Patrice: Yeah, right. Well, so the arraignments already had happened, but we have more or the indictment had already happened. The arraignment we go through, we learned a couple of things. One was that Trump doesn’t have any real lawyers for him anymore and is struggling to find anyone willing to represent him in Florida. He still has this former solicitor general making appearances for him, though. Chris Kise has made statements suggesting that he doesn’t want to be the actual lawyer long term, but he’s willing to enter appearances right now. It’s a real question if they can find a local council willing to take this on, given that he has made something of a pattern of not paying people. And apparently that catches up with you eventually.
Chris Williams: I mean, there’s got to be at least some big law bro that’s like, nah, I represent our president pro bono. No.
Joe Patrice: Well, I can’t see any big law person doing it because big law people care a whole hell of a lot more about getting paid than they do about representing whatever.
I could see some up and comer ambulance chaser sort of person, which sounds derogatory and was meant in this particular instance. I support personal injury lawyers generally, but you know what I mean when I say this, somebody who is trying to make a name for themselves more than caring about whether or not they get paid here. Sure, but it’s hard to believe there’s many of those folks out there at this point, especially considering this is not a particularly great case for these folks. As we discussed when we talked about the indictment over the last couple of weeks, it’s pretty cut and dry. There’s some arguments to be made, I suppose, that the attorney notes were improperly included and should be excluded from the jury and so on, which would make it seem less like a conspiracy. But a lot of these charges are pretty strict liability. I mean, you have classified documents that you aren’t supposed to have. You warranted to the government that you did not have them anymore when you did. Those are crimes straight out of the gate, which makes it a lot harder to make a real defense.
Maybe you could cut back some of the charges. I don’t know if we talked about this on the podcast or whether it was just in an article, but the just security did a sentencing guidelines breakdown which, obviously, the guidelines are not mandatory anymore, but guidelines for these particular charges, even getting rid of the ones that are based largely on attorney notes that got in through the crime fraud that arguably are in through the crime fraud exception. Some of these other violations, straight up are 20 year sorts of crimes, which for a guy Trump’s age 20 years is pretty brutal.
So anyway, he’s having a hard time finding his lawyers was one big story. The related story to it was, of course, that he made some comments and we’re not a visual medium, so you can’t quite see me rubbing my head here, but he made some comments about how he’s willing —
Chris Williams: It’s implying.
Joe Patrice: Yeah, he’s willing to plead guilty if the DOJ will agree to pay him damages for having put him through this. That is an interesting claim.
Chris Williams: Yeah. Also, for anybody that’s seen Breaking Bad, that just immediately reminded me of Season 2. This guy’s name is James Kilkelly, he like goes to prison for pay.
Joe Patrice: But usually the government isn’t the one doing the paying. The government isn’t really in a practice of paying you to agree that you committed crimes. They’re in the business of saying you committed crimes and then you paying them to get out of it. The business model doesn’t work.
Chris Williams: Sometimes they pay the prisons. Sometimes they pay the prisons
Joe Patrice: Yeah, you can theoretically not in federal, but you can theoretically have governments pay the prisons not really relevant to this conversation, though, because it’s about he says that he’s willing to do it if they’ll pay damages. But the reason I think these are related is it’s indicative of not having access to good legal counsel that you might go out and say something like this, right? I mean, any actual lawyer would tell him, “No, that’s not how this works.”
Chris Williams: Even non-lawyers like, I don’t know. Yeah, I haven’t really asked many people that work at Wendy’s or legal opinions, but I would imagine the person working the frosting machine and be like, “Hey, this doesn’t make sense.”
Joe Patrice: One would hope, unless has civic education gone so bad in this country that even regular folks don’t understand that the government doesn’t pay you to plead guilty. The other part of this pay to plead guilty thing is that’s not even necessarily the stupidest thing Trump’s saying out loud. Jonathan Turley, who is kind of on a hilarious. So Turley, George Washington law professor, he’s on a constant drive to get attention from right wing media. He doesn’t really have any seemingly any consistency to his thoughts other than what might get him attention at a given moment. When the indictment, he was talking about how the indictment was all going to be made up and it’s a fake case and whatever. And then when he saw the indictment, he actually came clean on TV and said, actually, this is very damning and very serious. Apparently since then, he has received the message that that wasn’t what would get him invited back on TV so he has over the course of the following several days, written more and more stories saying, “This is all politically motivated. This isn’t real.”
Because he’s nothing if not consistent in the fact that he wants to be on TV. So with all of that, he did, however, have a moment of clarity which I assume will soon be walked back pointing out that Trump did an interview with right-wing journalism where he started making statements about. “Oh, I didn’t know that there were classified documents there,” which, you know, he’s on tape saying that here’s a classified document that I didn’t declassify. So he’s making public statements now that seemed to suggest that he was lying in these past audiotapes. Now that’s all going to be admissible. At the point that you’ve been indicted, when you go out in public and say things that is all now fair game to be used against you. It almost seems like — they’re like, this is another moment of the “why, it’s important to have a lawyer,” right?
Chris Williams: Or at least just shut your mouth.
Joe Patrice: Yeah, I saw one theory and I don’t necessarily ascribe to this one because I don’t think that there’s much reason — I mean there might be a reason to have him surrender his passport. But there’s not much reason to incarcerate Trump but it’s not like these are crimes that other than the risk of international flight, there’s not much risk that he’s going to continue to cause problems now that the government has these documents, yada, yada. And I’m generally against pre-trial incarceration unless it’s a clear and present threat to public safety going forward. That said, they didn’t put any kind of house arrest or gag orders on him. And that kind of seems almost like that was calculated you. Even though they — as a moral matter shouldn’t have. It also seems like the DOJ might have made the litigation tactical decision to not do that more or less banking on the idea that Trump is going to say things in public that will bolster their arguments down the road. Because you know, you don’t want to — if you have any concerns, you’re not going to get them (00:12:13) notes in, don’t worry, just put them in the indictment and let Trump go on TV and talk about them. That’s going to get there. That’s a way around all of these issues. This is something that a real lawyer would be able to tell him not to do but so far, he can’t do that years and years of the stiffening lawyers has finally come back to haunt him it seems.
Chris Williams: It’s funny how it happens.
Joe Patrice: Yeah, so yeah. So the lesson here is pay your lawyers in a timely, and responsible manner. And then when you’re indicted for 37 counts of dealing with classified documents, you don’t have a problem, finding an attorney in case that comes up for people.
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Joe Patrice: All right, we’re back and talking about one of our least favorite subjects.
Male: Layoffs, don’t talk about layoffs, you kidding me? Layoffs.
Joe Patrice: Talking layoffs, we had a few more last week. The first one to talk about is Orrick, Orrick they were going to cut 6% of their global Workforce divided between attorneys and staff. That news came out and soon after we heard from Reed Smith making some cutbacks, what was that — you wrote that story? How much was that? Was that five?
Chris Williams: I think it was like, I want to say two, it wasn’t that much.
Joe Patrice: Oh, okay.
Chris Williams: It came out to be about 30 attorneys but it was less the smaller number.
Joe Patrice: Right. So then we had Reed Smith, this of course supercharged fears about more layoffs to come. What do we think about the layoff situation? Any takeaways from these moves? What are we thinking?
Chris Williams: Well my takeaway is I saw that Orrick deferred their associates till January, they only gave them a 15K stipend, what happened to six figs?
Joe Patrice: Well, no, that’s a good point. That Cooley six-figure stipend was for people willing to defer until January 2025.
Chris Williams: Got you.
Joe Patrice: Yeah, so that was actually interesting — and that’s worth talking about again because put aside that the distinction here, it does seem like Orrick didn’t offer the push clear to 2025. Cooley was suggesting that people in certain practice areas. If you were willing to take a new practice area, they were deferring you until January 2024 but if you were hell-bent on the practice areas that they currently seem to think they have no room for, then they would give you six figures to wait ‘till 2025. Orrick not doing that seems to suggest that they think there will be a market back earlier for these folks because they’ll be able to fit them into billable work by January of 2024 at least at this point that seems to be what they’re thinking.
It’s interesting, I actually made a tweet right before the Reed Smith news came or after Orrick and right before Reed Smith because we, internally, here at Above the Law had been having some conversations about like what does this mean? You see a lot of the other legal press talking about more layoffs? Another layoff like this is a trend yada, yada. Meanwhile the —
Chris Williams: It’s hard to talk between points and actual trend.
Joe Patrice: Well yeah. So that’s the issue is what does this really say? And even though there are layoffs happening at all sorts of places, it seems that the only connective thread between all the layoffs is the Cooley, Orrick — Wilson, like what — did Wilson or it was Gunderson? I can’t remember one of them. Those firms that are all West Coast-based have a — while several of them have a global full-service law firm outlook, they have quartet sector clientele. Those firms are all having this issue, which suggests to me that there is a spillover of the tech sector problems in the economy writ large, they’re impacting those firms. Meanwhile firms like Goodwin, Reed Smith, Dechert, I’m struggling to see what the connective tissue is which makes me work wonder, and this is the real question. Are these firms indicative of a long legal industry-wide pending layoffs? Or are they outliers whereas the other firms and the tech sector are their own thing? Meaning we have a bunch of layoffs but only some of them have a connective tissue that makes them all one issue. Whereas, the others are just general outliers that are taking advantage of “Hey, you can fire people right now and people won’t blame you.”
Chris Williams: Do you think there’s any fault with say, somebody’s confusing market coincidences for market trends? You think that other firms will end up copying?
Joe Patrice: Yeah, I do think. I think that and I also think there’s something to be said for, law firms don’t like, no company likes but law firms in particular don’t like looking like they’ve screwed up, right? And they also don’t like looking like they’re reactive to things. The law firms by their nature lawyers like to look like they are solid as a rock, right? I mean it seems like they want to show that they are risk averse and so on. And so nobody wants to even when law firms have financial problems, they don’t like laying folks off. That’s why during the Great Recession for instance, the layoffs that we saw in law firms tended to be lagging the rest of the economy. They would come several months afterwards because they would really hope to not do them because they would take a loss in order to look stable.
Well, we’re seeing with this, with the non-tech firms, or non-heavy in tech firms, I should say. We’re seeing firms willing to say, “oh, you know, the market’s in trouble so we’re getting rid of folks.” And I feel as though more than the idea that there’s some real pressure on firms to do that. I feel like they’re more taking advantage of the fact that there’s a media and pushed somewhat by the Federal Reserve and so on. There’s an effort to say that a recession is coming which the numbers don’t seem to suggest it is but given that that’s out there, it seems like they’re taking advantage of it. Some firms are willing to say, “oh look a lot of people believe there is a recession coming.
So, we’re going to use this as an opportunity to make some cuts that we otherwise wouldn’t because we don’t really have a huge financial need to do it. But people aren’t going to blame us because it’s going to seem like we’re reacting to a recession. Recessions happen everywhere, like we’re all going to have to do this. And I think they’re banking on the idea that other firms are going to do the same thing given that they aren’t necessarily. Unless a real recession starts to hit, you start feeling like they’re going to be left holding the bag, and look like firms that overreacted, look like firms who were arguably stretched financially so thin that they couldn’t deal with a small slowdown in Q1 spilling into Q2 that they had to react before Q3 and Q4.
Chris Williams: If it is posturing, I’m not really seeing the benefit of being the first mover.
Joe Patrice: Yeah and that’s the thing. Well the idea is that you really are —
Chris Williams: You blame it on the market, but even if the market is shitty you would want to present yourself as if despite the market being how it is. We are Stalwart whatever like bull works.
Joe Patrice: Yeah, exactly. The idea is that you probably do have 30 lawyers too many in certain practice areas. Like M&A has been slow for a couple of quarters, so you have these people you’re paying high salaries to and you’re taking something of a loss on them. Now, query loss. It just means that the partners are making $2 million a year instead of $3 million a year or probably even less rather than 2.5. Anyway, whatever.
You’ve got some people who are arguably dead weight. That is true. And if you think that’s going to continue for another quarter or two you might get rid of them and just say, “then we’ll get the first gears in and they’ll pick up that slack and we don’t need to worry about this.” That is really happening. There is over staffing in certain practice areas.
Question is, and this goes to your point about being a first mover. I think some of these firms want to get that ball rolling and hope people are going to follow them, so it looks like, hey, everybody in the industry had to react to a recession. And so far, I think outside of the tech related firms it’s few and far between and yeah, there are several of them like Goodwin, Dechert, Reed Smith, whatever. But they are more few and far between. They are more staff related than attorney based in a lot of these cases. I don’t necessarily think they’re cause for alarm, yet as far as industry wide cause for alarm. We’ll see.
But if M&A starts picking up in the second half of this year, those firms are going to move on and some of the firms that didn’t do any cuts are going to take advantage of that. It’s still a situation influx. I don’t know. I still feel reasonably confident that this is more of a tech hangover than a general economy hangover.
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Joe Patrice: Okay, we’re back, and let’s talk. So, you did a write-up of an interesting decision, because it moved the law and it expanded the law in a little bit of new direction out of Massachusetts.
Chris Williams: Yeah. So, there was a guy in Massachusetts named Anthony Dew who was assigned counsel, guy named Richard Doyle, and he ended up taking a plea bargain served some time. None of that is exceptionally interesting. But what happened was, after that, he realized that Richard Doyle, his attorney, was a bit of a major bigot. Just run of the mill. I hate blacks, I hate Muslims. I hate Black Muslims
And then after you see stuff like that on his Facebook, which was public for everyone to see, the wheels begin to spin. There were moments during the trial where I say, so he wore the, I’m not sure the name for the religious hat that Muslims wear, but the kufi. He had a kufi on and his turn, it was like, “why are you wearing that shit? Sort of thing. Which is like, “Uh! What’s he was wrong to you, like, that’s a racist thing to say”, but that necessarily show racial prejudice in the process of representing someone. I don’t know. But what was interesting about this decision was that the court decided that the fact that this guy was a racist was sufficient to win in the insufficient — What is it? The IAC.
Joe Patrice: Assistance of counsel, yeah.
Chris Williams: Yes, assistance of counsel. And I just think that was cool outcome, but I’m wondering what the lines are.
Joe Patrice: Because one thing from your post that I thought was interesting was that historically, ineffective assistance required showing in the kind of general sense. It usually required showing that the lawyer did something specific wrong in your case.
Chris Williams: Right.
Joe Patrice: But they didn’t necessarily have evidence that the guilty plea was necessarily —
Chris Williams: That normal.
Joe Patrice: Yeah, right. But they extended it to this guy’s so bad that, like, so racist that we have to jump in and say, “if per se, had to have been ineffective.”
Chris Williams: Right and I think that’s interesting because it could have been the case that like and the example I gave, you know, there’s this judge, I think, wow. At this point, it feels like it was damn near two years ago. There’s this judge who started slurring some dude apparently, because of some drugs she took
Michelle Odinet, hopefully I’m saying her name correctly, and she ended up going, like, so I used to have an example. Like what if she ended up going to do defense work and she argues phenomenally, does some equivalent of somebody being charged with having 37 government documents they shouldn’t have, and gets them like two months. Amazing lawyering. If her history is like, “hey, you’re racist. Does that invalidate what happens next?”
Joe Patrice: I guess the hope is that it can only work in favor of the defendant because they’d be the one who did. But this is a good point. Also, there are a lot of lawyers who do that kind of criminal defense work, who privately would say, “yeah, my defendant is guilty. Yeah, my defendant hangs out with, put aside racism, hangs out with people who do bad things.” Like whether it’s, you could do that in a racist manner. You can also do that with MAB folks in certain areas of New York. It can be a more-broad statement. Some criminal defense lawyers know those communities and know that they hang out there. They get referrals because of that sort of thing. Is having that opinion, does that carry over to, then you were ineffective or are you a zealous advocate for them despite thinking that they probably did in real life do it? We do have lawyers. Several years ago, we covered a criminal defense lawyer who was openly advertising on my clients are all guilty, but I can get them off.
At that point, are you conveying even if obviously, racial and religious discrimination being the motivation is the problem here, but this is one of those things where the fact in this specific case? They form a general rule that is going to be applied generally. You think about some of the texts that Doyle sent that were comments on Facebook that become the issue here. Can somebody in the future say, “My lawyer said that all of my friends are guilty and whatever, and he was just trying to get us off for the money and whatever. But if that person is something of a real committed to the legal concept that everyone deserves a lawyer, and even if I think you’re guilty, I’m going to get you the best deal. Is that possible? Are there going to be situations that walk a line where somebody can say, “Doyle is clearly off the charts?” We don’t have to go into specifics of some of his comments, but if you read the complaint which is —
Chris Williams: I won’t and you don’t need to read anything.
Joe Patrice: Yeah, well, you put the link in there. If folks want to read the whole opinion, you can. This guy is clearly off the scale. But you’re right. When you said, like you just said, “where you draw the line?” I do wonder. There are criminal defense lawyers who will say things like, “yeah, I know my people are guilty that I’m representing.”
And some of those comments are butting up against some of the things that this guy said, and are they going to use this opinion to get around that? It was an interesting decision because it does open the door in ways that we hadn’t had before, because we definitely used to historically. You try to tie it to this person should have gotten a year, and they grin in for five because the lawyer didn’t care. And this very much kind of took the stance that they don’t need to prove that anymore.
Chris Williams: All right. At least in this state.
Joe Patrice: Yeah, exactly. But it’s interesting, and I’m not necessarily saying that that’s wrong, right? Because the flip side of it is requiring that set a super high standard of proving some sort of counterfactual. Especially in plea deals, how do you say, “Oh, you could have gotten a better deal.” You don’t necessarily know. The prosecutor is not going to say, “oh, I was considering something better.” It set an unrealistic standard that allowed for ineffective assistance to never be checked. I think this is a really fascinating case that you found that gets into a whole bunch of issues as to how we deal with criminal defense going forward.
Chris Williams: I don’t know how much of this would be good lawyering or courting the bar to hit you, but it’ll be like, “hey.” So, I’m just mad at somebody being like, “I hate blacks and I get amazing plea deals. And then if the plea deal goes great, phenomenal. If it goes wrong, hey, my lawyer is racist.”
Joe Patrice: Fair, yeah. You might have some bar issues with that, but as a criminal matter, that’s a good question.
Chris Williams: Because that was too fast. Like, hey, if you walk after being an ex-murderer in this kid’s daycare, tell all your friends who represent you, but if you serve life or whatever, here are my Facebook posts.
Joe Patrice: Yeah, really interesting. I feel like this is an opinion that could give rise to law review articles and stuff, because I think it’s an interesting policy question how we deal with ineffective assistance. And there are threads to untangle here. Really interesting. All right, well, I guess we’ve gone on, so we should probably close up for the week.
Thanks, everyone for listening. You should subscribe to the show. Get new episodes when they come out. You should leave reviews, stars, write something, all of that helps. You should be reading Above the Law every week so that you read these and more stories before we talk about them. You should be following us on social media. The publication is at ATL blog on Twitter. It also has a Facebook page. Chris is at Writes for Rent. W-R-I-T-E-S like for rent like he writes. I’m at Joseph Patrice, both of us on Twitter there. We have —
Chris Williams: As in Joseph, like biblical?
Joe Patrice: Yes, as in Joseph. And then I’m at Joe Patrice on Blue Sky, for whatever that’s worth, not that I’ve been — I’ve been doing a really bad job of that and I really need to —
Chris Williams: Are there people there?
Joe Patrice: There are. A lot of people right now are doing Twitter and then copy pasting that tweet and putting it on Blue Sky, which I should do. It’s an extra step that slows me down, and I shouldn’t do, but I should do better. Then you should be listening to The Jabot, Kathryn’s our usual co-host podcast. You should listen to the other offerings of the Legal Talk Network. I’m also on the Legaltech Week journalists’ roundtable. And that should cover everything. We will talk to you all next week.
Chris Williams: Peace.