Joe Patrice: Welcome back.
Kathryn Robino: Hey.
Joe Patrice: It’s a new episode of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by
Kathryn Robino: Hey, Joe Patrice from Above The Law.
Joe Patrice: I’m joined by Kathryn Rubino and Chris Williams. We’re, you know, all at Above the Law and we have this show every week to give you a quick rundown of some of the big stories of the week that was in legal. And before we get all that started, we should, do something to make ourselves seem a little bit more human.
Kathryn Robino: Like people are not just like reciting stories.
Joe Patrice: Right.
Kathryn Robino: You know.
Joe Patrice: It’s time for Small Talk.
Kathryn Robino: Okay. I see what you did there.
Joe Patrice: Yeah.
Kathryn Robino: It’s not that funny. You think you’re funnier than you are.
Chris Williams: Agreed. But Joe, do you want to be the first to approve your humanity? Just to make sure. Because I’ve seen you hesitate with those CAPTCHA tests.
Joe Patrice: Yeah. No. So, yeah, no, I am busily baking away cookies and stuff.
Kathryn Robino: Busily baking.
Joe Patrice: Making fudge, you know, like all the, all the usual holiday.
Kathryn Robino: Is fudge? Well, I don’t know. I’m on fudge talk. So, I feel like I’ve gotten a lot of fudge talk.
Joe Patrice: Fudge Talk.
Kathryn Robino: Fudge Talk. There is a whole fudge talk. There’s a woman who has this fudge list and I’ve been inundated with stories of people getting in and off of her fudge list. It’s a whole vibe, but I don’t tend to think of fudge as a traditional Christmas treat.
Joe Patrice: You don’t?
Kathryn Robino: No, growing up, we never had fudge.
Joe Patrice: Huh.
Kathryn Robino: We ate cookies.
Joe Patrice: Yeah. I mean, I have cookies too.
Kathryn Robino: We had cakes. I don’t know.
Chris Williams: Somebody should consult the holy text and see if fudge is mentioned on that movie, Elf. Was it, Will Ferrell?
Kathryn Robino: It is Will Ferrell. Yeah.
Chris Williams: I default to him.
Kathryn Robino: Well, are you having spaghetti with syrup? I mean, I don’t think that that’s necessarily the definitive text.
Chris Williams: No, but what I was saying is, it is now a tradition because it was in Elf. Not a good tradition, but it’s in Elf. So, there’s some textual basis for associating with Christmas.
Kathryn Robino: I mean, yeah, it’s a whole vibe.
Joe Patrice: It’s Christmasy.
Chris Williams: I’m also not having spaghetti with chocolate syrup because I recently got my wisdom tooth removed.
Joe Patrice: Opf!
Chris Williams: And that will not be the reason that I get dry socket. Yeah. By the way, it hurts.
Joe Patrice: Mm-hmm.
Chris Williams: I don’t know what happened. Maybe I said something I was on sedative. Definitely not. But they sent me home without the proper instructions on what pills to take. So, I was in a pain that I would describe as excruciating. And I was like, yeah, I miss the days of food poisoning and suffering. This was something completely different. But now I’m fine. I’m on multiple pills and like one of them is like an 800 milligram Tylenol. And another one was like a weak opiate. And I was like, “Oh, I just had the Tylenol within six hours. Don’t want to OD on Tylenol. Guess I’ll take the dope.” That was a fundamental balancing thing to do.
Joe Patrice: Yeah. Well, so how are we doing there? Do you have something to add, Kathryn?
Kathryn Robino: Well, my family has already come to town for the Christmas holiday. So, I am in the middle of what we affectionately refer to in my family as “Christmas camp,” meaning that when families here, we have a series of Christmas-based activities that I am trying to balance with my job at the moment. But we’ve done some Santa-ing, we’ve done some other sort of merriment. And yeah, yeah. Then the elf on the shelf has visited our house. They apparently track my nieces and have decided to have found my locale and are continuing to surveil them at my house.
Chris Williams: You know, there was a point where an elf on the shelf felt like a kind of pretty capitalist dystopian metaphor for the state watching us everywhere we go. But now, I think it’s just Amazon. Here you go. The elf on the shelf has you from A to Z.
Kathryn Robino: Both of those analogies, I think are pretty fair.
Joe Patrice: All right, well, cool. That seems like we’ve talked smally enough.
Kathryn Robino: You, Small talk.
Joe Patrice: What?
Kathryn Robino: I fall for it every time, don’t I?
Kathryn Robino: I like that you didn’t have the soundboard last week.
Chris Williams: Yes, making up for lost time.
Kathryn Robino: So, now you’re like making up for it and just trying to figure it out.
Joe Patrice: What should we be talking about first? I think the most successful story written by one of us was your story about how law firms are profitable.
Kathryn Robino: Yes, that is actually a trivia question that was.
Joe Patrice: No kidding. Well, it’s the most popular thing that wasn’t written by.
Kathryn Robino: No, it’s based on law 360’s latest survey of compensation. And they did a pretty deep dive into compensation numbers for non-equity partners, equity partners, overall, all that kind of stuff. And I think some of the information was pretty interesting. They divided it up by size of firm. And if you were to guess what the average compensation for equity partners
Joe Patrice: Okay.
Kathryn Robino: who have over 600 attorneys. So, the very, very large firms, what would you say that average compensation would be?
Joe Patrice: Average?
Kathryn Robino: Mm-hmm.
Chris Williams: At least $87.
Kathryn Robino: You’re both correct. It’s 2 million is the average commerce compensation. The high end at those large firms is 8 million.
Joe Patrice: Okay.
Kathryn Robino: The low end of that scale is about $300,000.
Joe Patrice: Yeah. Yeah.
Joe Patrice: $101 to $600 attorneys, fairs between the $205,000 to $3 million range with the average coming in at $810,000. And obviously, a hundred or fewer attorneys is going to be wildly different depending on what kind of a firm it is, right? I think that has the largest span of numbers, the high and the low. Because again, you’re getting some boutiques that are wildly profitable and you’re getting some just kind of small law firms. So, that equity partner numbers range in that very small firm between $100,000 and $7.9 million.
Chris Williams: I mean, talk about wanting to ride the curve. That is what is the average? You said the average is 800K?
Kathryn Robino: The average is 800K for that middle group that 101 to 600 attorneys, which—
Chris Williams: It sounds like out to everybody who would have seen getting money as far as like see income. That’s wonderful.
Kathryn Robino: But yeah, I did think that was interesting. And maybe more interesting is some of their non equity partner numbers because we’ve talked, I think, on the podcast before about big law firms wanting to expand that non-equity partner rank. It’s kind of a cheap way to increase diversity. I think that there’s a lot of fair complaints that that’s what that non-equity tier is being used for at a lot of firms, not, you know, universally, of course, but I think that that is also true.
And figuring out where non-equity is, is it a, is it a way? Is it a station that they just park folks, you know, they just park folks there? Is it a steppingstone to equity partnership? I think that is a wildly different depending on firm. And I think some of that caught those compensation numbers are very interesting also because we’ve had certainly as we are talking about associate compensation raises that are going through, we certainly have some non-equity partners being like, “They’re getting paid more than I am.”
And in that top tier of a big law firm by size of more than 600 attorneys, the range of compensation for non-equity partners is between 200,000, which again is definitely below those senior associate numbers that we’re seeing in big law. And 1.2 million with the average coming in at 516,000,
Joe Patrice: Okay.
Kathryn Robino: which is pretty much exact, very close to what these new compensation numbers, when you count bonuses. Actually, it’s slightly lower than when you count bonuses for those senior associates that the new round of raises where they’ve put folks.
Joe Patrice: Yeah, I know. Yeah. So, it really confirms that the non-equity partner is just a permanent senior associate
Kathryn Robino: Yeah.
Joe Patrice: in the way in which they deal with it now, which, you know, is a change. I mean, I like special counsel back when I was starting out was a form of non-equity partnership of sorts,
Kathryn Robino: Mm-hmm
Joe Patrice: but they certainly did better than just be a senior associate for life.
Kathryn Robino: Yeah. Yeah. I think that as we’re getting information that more and more, more and more firms, cravath has now created this non equity tier, which is a huge change for the firm, more firms are wanting to not just create the tier if they haven’t already but expand the number of folks in it. I think that that is going to be a real pain point, because that level, unlike associate compensation is black boxed, right?
Joe Patrice: Right.
Kathryn Robino: There are no memos that come out that say, “This is what our non-equity partners make.”
Joe Patrice: I wouldn’t say, no memos, but there are very few firms that do that.
Kathryn Robino: Sure. Sure. It’s not, it’s not that kind of open information that the other, that the associate level gets in big law. So, I think that it is ripe for sort of questions about how folks are being treated.
Joe Patrice: No, I think that’s true. But, you know, they’re very profitable, which is why they’re paying more in bonuses this year and increasing their salary.
Kathryn Rubino: Well, bonuses are at last year’s levels, but salaries certainly.
Joe Patrice: Right. I guess I just wrote a story about people paying more. Actually, all the stories I’ve written today have been about people paying more in bonuses.
Kathryn Rubino: Fair enough. Fair enough. But I think the industry average that’s Cravath and Milbank numbers.
Joe Patrice: But they’re paying more in salary, which is the key. Yeah, well, even if they’re going to complain about it, they have the money. That’s the moral of all this.
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Joe Patrice: Okay, another story. This is a legal tech story. So, obviously this is the most fun stuff that we cover. Why’d you stop.
Kathryn Rubino: This is funny because I know what story you’re trying to tee up, and it actually is a crazy, interesting story, but perhaps not because it’s a legal tech story.
Joe Patrice: Well, true. Actually, that’s a great point because that is my angle. I don’t think this is fundamentally a tech story, but Michael Cohen, best known as Trump’s former fixer, who has pleaded guilty and dutifully testified against his former boss in law enforcement probes into his business dealings. So, because he’s been behaved himself and offered testimony and done all the things he’s supposed to do, his lawyer put in a letter motion seeking to have Cohen’s supervised, release, and terminated so he would shorten his sentence because he’s done such a good job. And in doing so, he cited some cases. Instances in the second circuit where people under various conditions that were similar to his saw their supervised release terminated. He did not put these in a string site or anything. He actually had full like sections.
Kathryn Rubino: Sure. When cases are really on point and analogous to your situation, that makes a fair amount of sense.
Joe Patrice: So, these cases don’t exist.
Kathryn Rubino: Oh.
Joe Patrice: The judge noted that couldn’t find any of these cases existing and has an order to show cause for the attorney to explain how this happened. I think we all — while we don’t know what happened, I think we all know what happened. And what we know happened here is someone used, whether it was ChatGPT, or one of the other commercial-facing generative artificial intelligence tools was being used as a legal research tool, which is not what it’s designed to do.
Kathryn Rubino: The thing that gets me about this story is, you have written multiple stories at this point of attorneys in small little cases that exist getting caught using ChatGPT, getting sanctions as a result of using
Joe Patrice: Yup.
Kathryn Rubino: ChatGPT in legal research. And those are not wildly publicized famous defendants.
Joe Patrice: Yeah. The fact that this is one of the more important cases on the federal docket at this point means it’s going to get outsized detention. And it does speak to how it got caught. It is worth noting the judge noted this and I believe Cohen’s, like, former counsel or new counsel is something also noted. But prosecutors didn’t seem particularly on top of the fact that these cases weren’t real. And obviously, if prosecutors are going to drop the ball on anything, I’m glad they’re doing it on the way in which it helps somebody through the criminal justice system to the end. But the takeaway I had was that the real concern is that not everybody in the criminal justice system is going to have the attention and resources of somebody in a high-profile case like this.
Joe Patrice: And someday soon there will be some sites like these that are used in a way that actually hurts somebody and no one’s going to catch it. This is a case where people were glued in, and I worry about the cases where they are.
Kathryn Rubino: Well, yes, I definitely think you’re right, but what do you think is the potential answer. Do you have folks add as appendix and actual the text of all the cases? Do they have them, like, “I want to print it out from one of the following –”
Joe Patrice: Potentially, they print it out from one of the following services. But even that I’m not a huge fan of because I don’t necessarily think that we want to be forcing people to be using paying heavy subscriptions for that. Getting the text doesn’t work because as we learned from the initial New York case where somebody used ChatGPT and got caught, if you ask it, “Hey, give me the text of this.” It will make that up too. That was how they kept digging themselves deeper in that case. I think the only answer ultimately is improved technology. And as we move transition into a world where Lexis and Westlaw are coming out with their gen AI offerings that are tied to good data, that is going to make this better.
I still have some concerns about how generative AI models do legal research, even when the data is good.
Kathryn Rubino: Mm-hmm.
Joe Patrice: How do I put this? I think by their nature, the way in which those algorithms attempt to attack a research problem is to give you the right answer, which is not always the answer one wants or should have. So, I think what they do is provide very good responses for somebody who’s doing, say, compliance work or doing some like in-house counseling. It doesn’t always do the best work for litigation where you aren’t always trying to say, “Hey, here’s the most likely answer, most likely result based on the case law,” and just kind of reinscribe maybe a mistake in the law. So, there are going to be philosophical problems with it down the road, but at least those are citing real cases.
Kathryn Rubino: Yeah, I mean, I think that in terms of philosophically questionable answers to this problem, I do think that throwing the book at the attorneys who use these cheats is probably something we’re coming pretty close to. At this point, we’re not at the first or second or even third time that this is made legal news. I think we’re rapidly approaching the point that you can say, “No, this is going to be a real problem for you.”
Joe Patrice: Yeah.
Kathryn Rubino: And I think that jurisdictions coming up with very strict guidelines as it comes to generative AI and saying, “If you get caught, it’s your license.”
Joe Patrice: See, now I don’t necessarily agree. Actually, I —
Kathryn Rubino: You said it’s ethically questionable, but yeah.
Joe Patrice: I strongly disagree with that.
Kathryn Rubino: Okay.
Joe Patrice: I think that these tools are good and regulations to try and tamp down on them are only going to hurt more people. The issue here and why I don’t ultimately think this is a tech adjacent issue and not a tech issue is the problem here was not asking ChatGPT to give you some cases and then using them. The issue here was having it give you some cases and then you didn’t bother to check them. The issue is doing that next step of basic legal work, which is checking them.
Kathryn Rubino: I think you’re correct, but I think maybe
Joe Patrice: I know.
Kathryn Rubino: the rule gets written as it’s not that, “Oh, you use ChatGPT. If you have a case that does not exist, if you falsify case in your submission,”
Joe Patrice: Right.
Kathryn Rubino: “then it’s your license.”
Joe Patrice: Right. Well, right. And that I think has been true all along, right? We don’t need any new rules for a tech reason here. People made up a case coming out of the books. It should be —
Kathryn Rubino: Correct.
Joe Patrice: Yeah.
Kathryn Rubino: But maybe as it is increasingly common because of perhaps technology, it is worth jurisdictions clarifying that this is something they take wildly serious and, “Oh, I was overworked and I use ChatGPT is not an excuse.”
Joe Patrice: Yeah, I don’t know. I think it is a disservice to fixing this problem to try and tag it on that vector. And I think that any rules or guidance that is tied to the idea of the AI being key to this mistake, it just lets people off the hook. The issue here is that they’re lazy, that they should have read the cases that they’re citing and they didn’t, and that’s a problem. But no, it’s another fun case.
Kathryn Rubino: If you were a judge
Joe Patrice: Yes.
Kathryn Rubino: and knowing that this is happening,
Joe Patrice: Mm-hmm
Kathryn Rubino: and maybe you did catch it in the high prideful Michael Cohen kind of case, what is your standing order to your clerks to make sure that your court doesn’t inadvertently sign on to this fake cases?
Joe Patrice: And I don’t think this one’s very difficult. You just need to actually pull all the ca– the standard operating procedure has generally been and should be that when you’re resolving emotions like this, you go on to whatever subscription service you have available to you and you pull all the cases. And that’s just always how this works. And so, I guess, if the judges are doing —
Kathryn Rubino: No matter how many cases there are two strings to tie, we’re going to need them all.
Joe Patrice: Yeah.
Kathryn Rubino: Yeah?
Joe Patrice: Yeah. You just bust them all out. And maybe like, maybe in with the overworked federal dockets you aren’t getting into the weeds of every single one of them but you’re at least printing them all out. You’re at least looking at the relevant language of them. If they’re doing their jobs, they will be able to catch these things. The concern is that there might be folks out there who are not, who are taking it lazy.
And the federal docket has its issues because there are some very non-qualified people on that docket after the last administration and we know because the ADA pointed out that they were unqualified when they got those jobs. But they are at least, I feel a lot better about that on the state level. You have judges who are, especially ones who were elected, there’s a wide range of people who are highly responsible jurists who folks who just won the election, you know.
Kathryn Rubino: Yeah, yeah.
Joe Patrice: And that’s where I think there’s a real risk of the problems. Anyway, let’s take a break before we talk about the other side of the Michael Cohen story. A person in Trump’s orbit who did the right thing and one who is not cooperating.
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Joe Patrice: Okay, so we’re back. Really, Giuliani had quite a little adventure in court. As you may recall among the many legal issues he has now put himself into, he also was being sued for defamation for going on national cable media and repeating multiple defamatory lies about Georgia poll workers. Though that led to those workers getting death threats and
having to move and all this sort of stuff, bad stuff.
This lawsuit has been going on for a long time. It went on so long that with Giuliani refusing to comply with various discovery deadlines, we reached the point that you almost never see of the judge issuing death penalty sanctions on him and directing a verdict. So, for not complying with any of the discovery obligations, he was deemed liable for defamation out of the gate.
So, we move directly to a sentencing phase. The sentencing phase we had last week, that was the phase in which he was only supposed to testify. The old case was only about how much.
Kathryn Rubino: Right. How much money the poll workers were owed.
Joe Patrice: So, he spent the time explaining how he was going to be telling his side of the story which of course is irrelevant. Then he spent his time explaining how he was actually right and they actually did all these things. So, he defends them again.
Kathryn Rubino: Which are new causes of action.
Joe Patrice: Yeah. Then he spun a theory about how their lawyer, Mike Gatley, was a friend of Hunter Biden somehow and worked for Burisma which he used to work at a firm but had also done work for Burisma but that’s not really, really the same. He promised that he was going to testify, he did not do that in a victory for lawyers everywhere who told their clients to do smart things.
Kathryn Rubino: Please don’t do this.
Joe Patrice: And with all of that, he is now on the hook for almost $150 million.
Kathryn Rubino: Wild. There are bad defendants that you get as an attorney, right?
Joe Patrice: Obviously, none of mine. Go on.
Kathryn Rubino: But I think like the Alex Jones case which had a similar sort of sanctions put upon them, big eye-popping verdicts, that kind of stuff. But what really should get your attention in this instance is that Rudy Giuliani is famous because he was a good lawyer.
Joe Patrice: Well, he’s famous for having been a successful prosecutor.
Kathryn Rubino: Yes. Perhaps, that is more accurate. But he rose to prominence in the first instance because he was going after the mob.
Joe Patrice: Yes.
Kathryn Rubino: As a prosecutor.
Joe Patrice: He was very successful as a prosecutor.
Kathryn Rubino: Yes.
Joe Patrice: That does not necessarily –.
Kathryn Rubino: I hear the distinction you’re creating. I think we’re all on board. But he still rose to prominence as an attorney.
Joe Patrice: Right.
Kathryn Rubino: He used that prosecutor’s cap to get elected as mayor in New York City.
Joe Patrice: He did.
Kathryn Rubino: He used that as a badge of honor for a large chunk of his career. And now in sort of the twilight of his prominence, he’s seemingly throwing all of those values that lawyers might have to the wayside in order for I don’t know, five more minutes of fame?
Joe Patrice: Yeah. He claims to basically have no money so this 148 million or whatever it is, is probably going to zap whatever he has. But he’s making cameos and maybe with enough, if he can get some of that George Santos level of fame, he can get –.
Kathryn Rubino: Wow, wow, wow. Yeah.
Joe Patrice: He can make some money and yeah. So if you’re interested in contributing to these Georgia poll workers, you should hire Rudy to do embarrassing cameos in postal places.
Chris Williams: Oh no. If you were to get Rudy to say something on a cameo, what would it be?
Joe Patrice: Well, I mean people have already used his cameo to make him explain how his clients were wrong in a case. So, he’s already been trolled by cameo people, cameo customers before. But after that, I think he got more circumspect about which cameos he takes. He can’t really afford to do that now.
Kathryn Rubino: So, if you have hired Rudy Giuliani to do an embarrassing cameo, you can send that our way its tips at abovethelaw.com and we’d be happy to publicize it.
Joe Patrice: Actually, before we say that, I don’t know, are there? I guess there probably aren’t. I was wondering if there were any terms of service that like say, “You can’t use it for trolling purposes.” But I guess not because George Santos –.
Kathryn Rubino: That appears to be their business model.
Chris Williams: That’s a lie.
Joe Patrice: George Santos’ first one was a trolling video that Federman paid for, right? So, yeah maybe. Oh, well. So, yeah, I think that brings us to the end.
Kathryn Rubino: Yeah. This will be our last show before the holiday. So, those who celebrate or currently we’re in the middle of Hanukkah, Christmas is coming up and then followed by Kwanzaa so I hope people are having a happy and safe holiday season.
Joe Patrice: Right. And we will have one more episode, a year wrap up before we move into the next year.
Kathryn Rubino: 2023, what happened?
Chris Williams: So much.
Joe Patrice: Great. So, thanks everybody for listening. Subscribe to the show. You will get new episodes when they come out, you can do reviews, add stars, right? Thanks to all of that. You should be listening to The Jabot, Kathryn’s other program. I’m a guest on the Legaltech Week Journalists Roundtable. You should listen to the other offerings of Legal Talk Network. You should follow us on social media. The publication is @atlblog. I’m @josephpatrice. She’s @kathryn1. He’s at @rightsforrent. Chris is also @rightsforrent and Bluesky and Kathryn is also Kathryn1@bluesky. I however am just Joe Patrice. I managed to get myself shortened.
Chris Williams: How did you make it more difficult by shortening the name?
Joe Patrice: Well, the thing is, I originally had Joe Patrice on Twitter but I had a Twitter account years before Twitter became a thing and I don’t know how to log into it. So, I had to recreate an account as Joseph and that’s how I got stuck with that. Anyway, neither here nor there. With all that said, we will talk about the year-end review next time.
Kathryn Rubino: Peace!
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