Joe Patrice: Greetings.
Kathryn Rubino: Hello.
Chris Williams: What’s up.
Kathryn Rubino: I like that you’re trying to trick me more, but I see the mischievous look on your face.
Joe Patrice: I don’t know as though it’s a trick.
Kathryn Rubino: You were trying to trick me.
Joe Patrice: It is, in fact a greeting. This is the beginning of a show.
Kathryn Rubino: Yeah, but you were trying to trick me.
Joe Patrice: This is the beginning of what show is this? The beginning of?
Kathryn Rubino: Thinking Like A Lawyer.
Joe Patrice: That’s right.
Kathryn Rubino: I knew that one. Give me another one. These are easy.
Joe Patrice: Okay. And who are you?
Kathryn Rubino: Kathryn Rubino.
Joe Patrice: Okay, good. She got that. I’m Joe Patrice. We’re joined by Chris Williams.
Chris Williams: Hello.
Joe Patrice: Didn’t take that. Okay. There you go. He didn’t take the obvious opportunity to say hello. All right. And we’re all from Above the Law. This is the show where we go over a quick recap of some of the big stories in the legal world of the week before. Hopefully to educate and entertain.
Kathryn Rubino: Mostly entertain.
Joe Patrice: Yeah. That’s what we try to do. We are here. It is November. It’s time for small talk, I suppose. Let’s have a little bit of small talk. We’re doing this show at a different time, but the same time. We just had a time shift.
Kathryn Rubino: Did you realize that?
Joe Patrice: No. You made it to the show on time, so you must.
Chris Williams: I just saw 12 and was like, “let’s do it.”
Joe Patrice: So, there is somewhere in the archives, there’s an old episode where I think where me and Ellie have a long argument about whether or not daylight-saving time should exist. He’s one of those —
Chris Williams: Who’s on the right side that it shouldn’t?
Joe Patrice: That is the wrong side ad that was Ellie. The correct answer is yes, absolutely. It has to exist. And we know this because in the 70s they got rid of it because a bunch of people said we shouldn’t have it. We should have one set time for the whole year. And it was such an unmitigated disaster and everyone hated it so much. They only lasted a year and then they reverted to having daylight saving again.
Everyone thinks it’s really a horrible decision for the first week of both time changes. And then after about a week it becomes pretty clear why we have to do it.
Chris Williams: Which is —
Joe Patrice: Because otherwise it would start getting really absurd. The times. It’s a whole long, fascinating history of the Nixon administration trying to get rid of daylight-saving time.
Kathryn Rubino: I understand the sort of frustration and as a mom for the first time understanding that children’s schedules are certainly disrupted by daylight-saving time. But I always watch the kids waiting for the bus stop in my neighborhood. My neighborhood comes at 6:30 in the morning. That is very, very early and it is very, very dark if we don’t do this. I always felt bad for the kids on the bus.
Joe Patrice: It gets ridiculously too dark in the mornings if you don’t do this. What people hate, and in this argument that we had, and I believe we had a guest who was also on Ellie’s side at the time, the problem is what people actually hate is the fact that the Earth gets shorter days versus longer days. Like you’re mad at the orbit, you’re not mad at the saving time. The saving time is just reflecting how we try to deal with the orbit. If you kept permanent daylight-saving time, it’s not like the winter, sun’s going to be out until nine in the winter. That’s just not how that works.
Kathryn Rubino: Right. I definitely hear what you’re saying, but this is not super controversial at this point. Like, it is what it is whether it changes or —
Joe Patrice: It is super controversial, people are still go up in arms about it all the time.
Chris Williams: Yeah, I remember I was at a second amendment protest and somebody had an AK and was like, “don’t touch our clocks(ph)”.
Joe Patrice: It absolutely happens. Obviously, we’re recounting the time that Ellie was arguing about it. There’s tons of folks who jump on social media every clock change to complain about it.
Kathryn Rubino: I think people complain about it, but even if we did something about it, I don’t know, this doesn’t strike me as a particularly wild concept.
Joe Patrice: No. Again, you are very much in the minority on this. Lots of people view this as a cause that they rally around in and bitch about.
Chris Williams: You know, what? If that’s the case and Joe is right, people live very privileged lives. I don’t remember — while I may have lost sleep over this shifting of daylight savings, I’ve never lost sleep over it.
Joe Patrice: You don’t lose sleep over this. You lose sleep in the spring.
Kathryn Rubino: I think he meant the concept —
Joe Patrice: I know what he meant.
Chris Williams: It was an attempt.
Joe Patrice: It was a double entendre.
Kathryn Rubino: Are we giving out participation awards now? I think maybe we got to wait for an actual one to hit.
Chris Williams: Yeah, I don’t know.
Joe Patrice: Yeah, we do.
Kathryn Rubino: You do. You do.
Joe Patrice: I’m the arbiter of what gets a participation award, so yes. All right. Anywho, with all of that, our diversion into daylight-saving time, the most important legal issue of our era, let’s transition to having a conversation about actual legal stories.
Kathryn Rubino: Sure.
Joe Patrice: Marking the end of small talk. What happened this week? I think the biggest story since last time we all chatted was at least as far as us at Above the Law was a story about Nixon Peabody.
Kathryn Rubino: Everyone’s a winner.
Joe Patrice: Everyone —
Kathryn Rubino: That is a very, very old Above the Law reference.
Joe Patrice: It is. It’s old school Above the Law.
Kathryn Rubino: And for those who maybe don’t know the story, nor necessarily should you, because I think all the recordings of it have been stripped from the internet, as only a big law firm can do.
Joe Patrice: They got aggressive about it being all over the internet. Several years ago, there was an effort by Nixon Peabody to be cool and fun, and they commissioned a song about Nixon Peabody that they played at some retreat or something like that. The song, the lyric was that everyone’s a winner at Nixon Peabody. That song was really embarrassing.
Kathryn Rubino: It wasn’t great.
Joe Patrice: And we posted it on Above the Law and there was a lot of — good laugh was had by all, except for Nixon Peabody who —
Kathryn Rubino: Except. The people who paid for it.
Joe Patrice: — filed a bunch of copyright notices to get it taken down from the internet all over the place, because they had exactly the sense of humor that you would expect from Nixon Peabody. With all that said, everyone’s a winner there. That has nothing to do with the current story. The current story —
Kathryn Rubino: It’s worth repeating whenever we can.
Joe Patrice: The current story is about how there may not be some winners there. The big fight right now, apparently, is that Nixon Peabody has shown up in the District Court of Massachusetts.
Kathryn Rubino: They’ve entered an appearance?
Joe Patrice: They’ve entered an appearance in the District of Massachusetts representing Donald Trump. The case at issue is an attempt by someone in Massachusetts to argue that Trump should not be allowed to be on the ballot in Massachusetts, arguing that the 14th Amendment prohibits him from appearing on a ballot. Those might recall, this is a pet theory that’s going around, folks.
Kathryn Rubino: Recently backed up by some academic work from the right by the way as well.
Joe Patrice: As diverse voices as Laurence Tribe and Will Bowdy(ph), both are talking about the idea that —
Kathryn Rubino: When they wrote the 14th Amendment, they might have actually meant it.
Joe Patrice: Right. The 14th Amendment was written as a response to civil war. It included some language that said, if you were part of that insurrection against the — part of a insurrection against the United States, you don’t get to ever hold office again. That is an argument that’s being made as why Trump should not be on any ballots. Someone has sued in Massachusetts fronting that argument. Nixon Peabody is defending Donald Trump in that claim.
Now, one could say and Nixon Peabody did, at least at the beginning of its motion. One could argue that this is a simple jurisdictional standing. Like, random citizens don’t have the ability to sue over this. If this amendment means anything, it’s not self-executing, it requires congress to do something, yada, yada. They do that, and then they make a bunch of arguments that are like, January 6. I mean, come on. Not so bad, right? Seems like that’s just a 1st Amendment thing. Not great. Which brings us. Anybody going to help make this less of a monologue?
Chris Williams: Which of us has not stormed the Capitol?
Joe Patrice: Whom amongst us has not?
Kathryn Rubino: This is why we don’t engage with you, Joe.
Joe Patrice: Yeah. What?
Kathryn Rubino: Being corrected on our grammar?
Joe Patrice: No, I don’t actually think that is a correction. I think I’m doing it intentionally wrong, frankly. But the actual story here is what’s going on within Nixon Peabody. From what we are hearing from sources inside the firm, how does a big law firm at this point get Donald Trump as a client? Every other major corporate law firm is running away from Trump as fast as they possibly can even Jones Day.
Kathryn Rubino: It’s true.
Joe Patrice: At that point, it’s not like this doesn’t have a knock-on effect for everyone else in the firm.
Everyone else in the firm has clients who don’t want to be anywhere near Trump.
Kathryn Rubino: Don’t want to be represented by Trump’s lawyers.
Joe Patrice: Right.
Kathryn Rubino: They’re getting a bad rep, frankly.
Joe Patrice: And every time this comes up, somebody will always say, “doesn’t everybody deserve representation?” Sure. They don’t deserve your representation. You actually have to balance whether or not your lawyer life, with your business life, and some other firm could be doing this and not compromising your work with a bunch of your corporate clients. This is the sort of thing that you would assume would get caught up at some point in the client intake process when partners or firms that are big enough, there are committees whose job it is to look at this and make sure that these issues don’t arise. According to the reporting that we’ve gotten, it seems as though that might have been bypassed in this case, which would be problematic if it were true that somehow this got done over no one having an opportunity to object until they saw it later. That seems to be spurring a lot of internal dialogue, that they should step down, they should leave the firm. This isn’t the first leaving the firm to represent, right?
Kathryn Rubino: Sure.
Joe Patrice: Like you covered one.
Kathryn Rubino: Yeah. Folks have definitely felt like their bread was buttered on the MAGA side and decided to pursue that. But I think that this might be the first time where they appear to have taken the client and sort of asking for forgiveness rather than permission.
Joe Patrice: Right. Like, I’m talking about, like the Todd Blanche situation where Blanche decides, wants to represent Trump, goes to his big law firm. Big law firm says, “you can do that, but you are going to be leaving the firm.”
Kathryn Rubino: “We’re not going to do this.”
Joe Patrice: And that’s how one would assume this would go down. Apparently, Nixon has not done that. We’re going to be monitoring closely to see if there’s any fallout from this, if the partner involved leaves the firm, if the partner involved drops the case, if there’s some sort of repercussions up the chain, do we see a managing partner get in trouble for technically being where the buck stops? Interesting situation developing over at Nixon Peabody, but you got to care about what your business is, too.
Kathryn Rubino: And I think that that’s really what this comes down to. I know we did a 14th Amendment detour here, but really it comes down to business practices. Big law firms ultimately are corporations. Maybe they’re organized as partnerships, whatever, but they are a corporate entity that has to not just think about these sort of even idolized opinions about the law or what the law should be. They have to balance those with both different kinds of corporate interests, both from their client side as well as from the recruiting side. Because fundamentally, big law firms need to also recruit people to work there. They want the best and the brightest. They want to be able to say that they are doing X client matters and if you’re a law student and you are a lateral and you have multiple options, it’s very possible that you don’t want one. You don’t want to work for a firm that emboldens Donald Trump.
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Joe Patrice: Okay, we’re back.
Chris Williams: One thing about that firm deciding to represent what is clearly a dumpster fire of a client. It’s not like Trump has something on the firm or anything, right?
Joe Patrice: That is an interesting point. I don’t know about having anything on the firm, but it is true that Trump did issue a pardon to a Nixon Peabody partner. It was kind of a thing that was former partner involved in financial thing. Who knows? Maybe they did them a solid. I don’t know.
Kathryn Rubino: Little quid pro MAGA? I don’t know.
Joe Patrice: I don’t know. It just seems a little too on the nose that Nixon is involved in dealing with a bunch of pardons.
Kathryn Rubino: That is not a connection that I had previously thought through.
Chris Williams: There are times where the notion of the eternal recurrence comes to mind from all the philosophy. I’m like, “yeah, Nietzsche was on to something”.
Joe Patrice: All right. Switching from one philosophy to a slightly different one, let’s talk a little bit more about aesthetics. Sam Bankman-Fried, who is guilty and will be going to some form of prison here, almost assuredly. But before he did, some of you may have found a sketch going around of —
Chris Williams: Of Tyler Durden.
Joe Patrice: My take was Tyler Durden. I did see, and this is more for Chris’ benefit, because I’m not as expert on these programs as you are, but I heard someone also on social media refer to it as, like, looking like an extra from the next season of JoJo’s.
Chris Williams: I see that. The strong lines and like — I was going to say, make a reference for people to watch. It was as if the — will there be this stenographer that would have drawn him. No, right?
Joe Patrice: No. There’s courtroom sketch artist.
Chris Williams: Got you.
Joe Patrice: Although that is somewhat controversial.
Chris Williams: It looked like if the sketch artist was Rohan from part four. People that are caught up on JoJo’s are going to love that. Everybody else, it’s okay. It’s okay. Don’t worry about it.
Joe Patrice: As far as courtroom sketch artists, that is the thing, especially given the aesthetic of all the other images that have come out. This was weird. Sam Bankman-Fried does not look at all like the image that was drawn of Brad Pitt like character. But all the other courtroom sketches here in New York tend to have what I would frame as like an early 20th century expressionism look like a dark expressionism.
Kathryn Rubino: That’s very specific, yes.
Joe Patrice: Jane Rosenberg does these court images and has forever, or at least a very long time in New York, draws these characters in — they don’t really look like who they look like. They look like they’re melting almost always.
Kathryn Rubino: Yes. That’s a very stupid.
Joe Patrice: It’s real art when she does this. It looks like drawing on the emotions of the room, not like an actual substitute for a photograph basically.
Chris Williams: Like impressionist?
Joe Patrice: Yeah. I think it’s more expressionism than impressionism. This is much more like monks the scream than it is Lily’s or whatever. This isn’t the first time this has happened. Obviously, some people will remember when Tom Brady was in court, there was a sketch that she did with it looked like Tom Brady was literally deflating as a person.
Kathryn Rubino: Like his balls.
Joe Patrice: You mean the —
Kathryn Rubino: I mean, hit the football. I meant the Deflategate scandals what I was referring quite specifically.
Joe Patrice: And this ties all together —
Chris Williams: This is a family show.
Joe Patrice: Didn’t Tom Brady lose a ton of money on FTX? Isn’t that a thing? I think he’s, like, actually one of the victims here of Sam Bankman-Fried.
Kathryn Rubino: Wasn’t he a spokesperson?
Joe Patrice: Yeah, but also, I think —
Kathryn Rubino: Weren’t the spokespeople sued?
Joe Patrice: Sure. And now there’s an argument whether or not spokespeople who are getting paid to just do commercials actually are doing anything that makes them liable when the company commits a fraud or not. My understanding is that he and Gisele before that marriage started having issues, actually invested a ton in this.
Kathryn Rubino: Probably also lost money.
Joe Patrice: Probably actually a victim. Yeah.
Chris Williams: I’m just waiting for the day there’s just the pictures of — the picture of them that was made, and it’s like, this is your brain on crypto.
Joe Patrice: It seems as though what happened here is someone, probably a former billionaire, has hired some other artist to draw a picture that is much more flattering, because this is absolutely not Jane Rosenberg original is my takeaway of this. Even at the time Jane was drawing images that weren’t like this. And it spilled over after that, because after my story went up, Donald Trump, Jr. testified in the court case in New York State Court that’s going on, and apparently said to Jane that she should make him look sexy like the Sam Bankman-Fried. And she was like, “that was not me and that’s fake”, but it’s carrying over. All these people now want the SBF treatment.
Kathryn Rubino: They want the sexy pictures, not the accurate ones.
Joe Patrice: What do you know? Something that looked really good on paper, but it turned out it really wasn’t real at all.
Kathryn Rubino: I like it.
Joe Patrice: What a metaphor for the case. Anyway.
Chris Williams: My thing is, AI, in its limited capacities is already being replaced. I think we should leave the deep fakes to algorithms. Like a deep fake of Sam.
Joe Patrice: In a world where we talk about cameras in the courtroom and stuff like that, in some of these courtrooms, you can just take pictures of these people. I actually think maybe 20 years ago, maybe what artists in the vein of what Jane Rosenberg is doing were not necessarily what you wanted. But now, in a world where you can actually take pictures realistically of people testifying and speaking in court, there’s a value to that the courtroom sketch artist is not trying to do that, that the sketch artist is trying to draw out something more artistic about the mood of the place. Actually, seems more on point now that you aren’t relying on them as photo —
Kathryn Rubino: Realistic.
Joe Patrice: — photorealism.
Kathryn Rubino: Yeah. And it’s interesting, too, because I think courtroom sketches, and as much as — I do think that we should have more cameras in the courtroom and whatnot, but there is sort of — this is one of the few instances where, as a public, we’re still paying for artwork.
Joe Patrice: Yeah.
Kathryn Rubino: Like, that’s not as common as it once was.
Joe Patrice: That’s fair.
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Joe Patrice: We are back. We have one more topic to deal with, a controversial-ish one. There was a letter released by his signatories of several big law firms. More big law firms joined the letter after it came out, and more law firms signed on as the week went going. The letter makes a statement against anti-Semitism rising around the country, which is obviously an understandable statement, but it then takes a turn and argues that this is a problem in law schools specifically, which, maybe a site of it, but not necessarily the only one. And then they take the stand that this is the law school dean’s fault, not theirs, and that they demand that law school deans have a dialogue with them, which sounds more like a monologue. Have a dialogue with them, and to explain what are you going to do about it, as opposed to the firms themselves taking any action of their own?
Kathryn Rubino: I think that anti-Semitism is awful, but it is a fact of our society that we have to deal with on a wholesale level. If law schools were uniquely generating anti-Semitism in a way that other places aren’t or weren’t, and we weren’t seeing it anywhere else, this might be relevant.
Joe Patrice: Yeah. There have been some bad instances and incidents at law schools.
Kathryn Rubino: Sure.
Joe Patrice: But the issue is — what really bothered me about this letter, because I viewed it very much as a cop out letter. It was, we want to take a stand on an issue, but we refuse to get into the details because that might be hard work. We’re just going to blame law school deans. And there are problems around the country, some of which have been on campuses. But the most egregious of those incidents the administrations are dealing with, they are penalizing people or getting involved when there’s cases of graffiti and harassment. If anybody’s going to school ties anybody —
Kathryn Rubino: Wow.
Joe Patrice: Yeah.
Kathryn Rubino: Wow. Brendan Fraser, early 90s. Listen, it’s very relevant. Whole movie is about anti-Semitism.
Joe Patrice: It is. It’s about anti-Semitism on a campus.
Kathryn Rubino: Great reference.
Joe Patrice: If anybody’s going to school ties anybody, then the administration is going to react. The problem that’s facing the campuses right now is that there’s a series of issues in the middle at what point does a protest move from, you’re protesting someone based on being Jewish versus protesting someone based on them taking a stance about the war, which would be a core political speech issue.
At what point are certain phrases advocating for crimes against humanity versus a slogan that’s commonly used. These are the difficult questions which law school deans have to deal with, and they are trying to deal with them, and they may be dealing with them wrong. I’m making no normative judgment about how they’re dealing with it, but those are hard questions and the problem is these law firms want to parachute in, say, “you’re doing everything wrong, but it’s all on you.” They argue, “oh, well, we have to hire from you, so you have to get this right.”
What would be more useful would be a letter directed at law students in which these firms take a tangible stance, say this phrase, this kind of protest, this kind of statement will be things that we won’t hire you over, and we will probably criticize at the margin some of those calls. But that’s what happens. That’s what hard work is. You expose yourself to some criticism. They just want all the credit and do none of the hard.
Kathryn Rubino: This reeks to me of being — they do want something out of it. They want the headlines. They want the New York Times to say boldly, “top law firms take bold stance against anti-Semitism”, which great.
Joe Patrice: And then it didn’t.
Kathryn Rubino: But it took a stand against anti-Semitism, and they just wanted the headlines. They want the credit for doing the right thing without doing more than writing a letter, without having to have people who are actually making the decisions on the back end that are difficult.
Joe Patrice: Look, I don’t want to pick on one firm in particular, but that’s just the nature of this. I’ll pick on one that I know are big kids and can deal with it. Kirkland & Ellis advertises that they do work for countries that don’t recognize Israel’s right to exist. If this is an issue you really care about, it would seem maybe that’s the business —
Kathryn Rubino: They also signed the letter?
Joe Patrice: What?
Kathryn Rubino: Kirkland & Ellis also signed the letter?
Joe Patrice: Yes. They are a signatory to the letter. It seems like maybe that would be a place where you as a firm could start. If this were an issue you really cared about, then instead making vague illusion —
Kathryn Rubino: Juxtaposition of those two facts, it’s difficult to reconcile.
Joe Patrice: Yeah. Make vague allusions about how law school deans are somehow screwing everything up.
Kathryn Rubino: Yeah, you don’t want to be, like, completely cynical and say, “oh, this is just PR, necessarily.” But those two facts, it’s difficult to understand them without saying the very cynical. This is a PR move designed to make people feel better about their stance without actually losing a dime in business.
Joe Patrice: And look, maybe Kirkland & Ellis has separated from those clients at some point in the past. I have no idea. But I do know that just as an exercise in figuring this stuff out, I did a quick one. I chose them because they’re the big —
Kathryn Rubino: They had a lot of clients.
Joe Patrice: They’re the biggest one. I went with them and just took a look and looked around their website and found multiple places where they were saying, our Middle East practice works with this country and this country. I’m like, “well, okay”. Then it seems like this becomes a very cynical statement. That was just my take. And I will say, I’m going to do a follow up story at some point. There are some firms who reached out to me who were not original signatories of this, who wanted to share that they have taken some concrete steps. I’m interested in hearing about that because I think that is the sort of —
Kathryn Rubino: Potentially more relevant to —
Joe Patrice: Much more relevant.
Kathryn Rubino: Actually, making the world a better place.
Joe Patrice: Yeah. Instead of blaming academics —
Kathryn Rubino: Blame Canada. No, blame law schools.
Joe Patrice: I blame law schools for a lot in my life, but I really don’t think that there’s an effort on any of these folks part to intentionally or unintentionally make things worse. They are trying to come up with a solution that deals with a lot of —
Kathryn Rubino: Balances, a lot of different factors. It’s a complicated issue.
Joe Patrice: Certainly, there are areas where it gets complicated. There’s clearly problems, and then there are problems that get a little more messy. And the firms, I think, want credit by making the vaguest statement possible, and you have to do the hard work.
Chris Williams: There are people in government that are actively resigning over the stakes of what’s happening. There was a person that was at the UN that resigned, and he was like, “this is a textbook genocide”. That was his words.
Joe Patrice: I’m clarifying here. This is out of the New York office. This was somebody with the UN Commission on refugees, I believe, who filed a letter arguing that this meets the international definition as existing under chief and all.
Kathryn Rubino: And not calling it, that was a problem.
Joe Patrice: Right.
Chris Williams: Yes. Yes. Like, you have people in high places that are speaking out and acting like students are going to do — they are going to protest, what have you. Things will happen.
Joe Patrice: Right. And how they protest and whether that crosses professionalism lines and stuff like that are going to be issues and issues that law firms have every right to act on and probably should act on. But that’s not on the deans. That’s something on you all as a firm to make your own decision.
Kathryn Rubino: And even if it is on the deans, and I don’t necessarily think that every dean is doing a perfect job because — whatever. But it is certainly not the law firm’s place to blame them when their house is not in order. You don’t get to do this until you’ve cleaned your side of the street.
Joe Patrice: Yeah. I think that’s the way to take it. All right. With all that said on the downer note.
Kathryn Rubino: The world is kind of a downer.
Joe Patrice: I guess that’s fair. That’s fair. All right. Unless there’s anything else, I think we’re done. Thanks, everybody, for listening this week. You should be checking out the show on your podcast source of choice, so that you get new episodes when they come out. You should be giving reviews, stars, writing things. It always helps. You should be following us on social media. Above the Law is at ATL blog. I’m at Joseph Patrice. Kathryn’s at Kathryn I, the numeral one. Chris is at rights for rent. That’s all on Twitter. On the Bluesky I’m doing at Joe Patrice. That’s the change. But otherwise, everyone’s doing the same handles.
You should be listening to the Jabot, Kathryn’s other podcast. You can check out the Legaltech Week journalist roundtable that I’m a guest on every week. You should be listening to the other shows on the Legal Talk Network. Always read Above the Law so that you read these and other stories before they come out. And with that —
Kathryn Rubino: Peace.
Joe Patrice: I think we’re done.
Chris Williams: Peace.