Donald Trump’s Legal Team Decides Not To Ask Permission OR Forgiveness

Episode Notes

Transcript

Joe Patrice:

We’re back. Hey, this is another edition of Thinking with Lawyer. I’m Joe Patrice from Above the Law. That was Kathryn Rubino who that actually fit

Kathryn Rubino:

Also from Above. the Law

Joe Patrice:

also Above the Law, but that fit this time. Did it? Yeah, because I reworked my opening to get around that. I

Kathryn Rubino:

Like that you’re accommodating me and I can continue to do what I do.

Joe Patrice:

I Am.

Chris Williams:

Honestly, it took you long enough, Joe. This was going off like three years now. Yeah,

Joe Patrice:

I have. I’ve given up on life. Anyway, so we are also, that’s Chris Williams Heard Chris Williams there we are all from Above, the Law, and we are here to do our weekly show where we talk about the big stories in law of the week. That was,

Kathryn Rubino:

We’re also joined by an additional co-host today. My daughter, Frankie LaRue is ill. So I know Poor Bubba, but is not interested in being far enough away from me at the moment. I would imagine. Yeah, baby’s first cold, so we’re going to literally baby her through this. But if you hear the noises of a child, you’re correct. Alright,

Chris Williams:

So

Joe Patrice:

I should have found a baby horn or something there. But anyway, this small talk time, my

Kathryn Rubino:

Baby’s sick and there you go. That’s what’s going on with me.

Joe Patrice:

Yeah, so you’ve got to jump the gun on small talk. On baby talk. Yeah, no. So from my perspective

Chris Williams:

oh no, no, it could have been, if this was just a little bit later, it could have been small tot.

Joe Patrice:

Well, it’s a nice snowy day here. We’ve got snow still falling, so it’s been a nice day of, it’s been a picturesque day outside. How about that?

Kathryn Rubino:

There go. Do you have to do much outside or can you just look at it through the window?

Joe Patrice:

Oh, I’d just prefer to look at it if I can

Kathryn Rubino:

I know you prefer everyone, I guess some people maybe are outdoorsy. Yeah,

Joe Patrice:

Yikes. Well, I mean, look, it’s not enough to go sledding or anything, but it’s gentle falling, whatever. So yeah, that’s more or less what’s been up with me and yeah.

Kathryn Rubino:

Chris, what’s up with you?

Chris Williams:

Oh, there was a Martin Luther King Day. Oh yeah. I went out to do a day of service, helped clean up a park. Also showed up an hour late, so I did no cleaning up, but

Kathryn Rubino:

You get credit for it.

Chris Williams:

Well, I feel like Martin would appreciate, I’m pretty sure he is brought on CP time a couple of times, but yeah, we watched some videos of listening to him speaking about the need for economic redistribution and just the stuff that people usually leave off after the

Joe Patrice:

Yeah, those are the quotes that you don’t hear as much in a rundown of Fortune 500 companies talking about how much they appreciate the day. Right,

Kathryn Rubino:

Right. Economic distribution.

Chris Williams:

Yeah. Once they hear beyond what is the exact wording, not on the character creed, fitness of the

Joe Patrice:

Judging, not based on the color of their skin,

Chris Williams:

But the content of their character. Yeah, there we go. There we go. See, I’m so focused on the other part of this body of work. I forget this little quick tagline.

Joe Patrice:

I will say I evoke the content of their character thing a lot. Whenever conservatives start talking about how they need viewpoint diversity, that they’re victims of viewpoint discrimination, that colleges need to hire more of them because it’s viewpoint discrimination and I’m like,

Kathryn Rubino:

It’s quite literally the point,

Joe Patrice:

The content of your character, you’re being judged on content that actually is kind of what he was after there, so you don’t get a workaround. That’s it right there

Kathryn Rubino:

And it’s there. That’s

Joe Patrice:

Fair. Not on the color of their skin or on anything else is not the quote. All right, well, okay, so let’s dive right in, I guess, right,

Kathryn Rubino:

Since

Joe Patrice:

You’ve got a sickie. Alright, so first topic of the week. That was, we had a comical interchange that resulted in even more bonkers ness in Trump’s civil trial in New York. He ended up giving a rambling statement at the end of closing. See,

Kathryn Rubino:

I thought he wasn’t going to be allowed to do that.

Joe Patrice:

So this actually is what’s interesting. So at first there was some reports that he thought he was going to be able to give the closing, which is not what happens.

Kathryn Rubino:

Yeah. Generally speaking, if you have an attorney, if you’re not representing yourself, you don’t give the closing.

Joe Patrice:

Not only generally speaking, that is in fact the rule in New York. If you have an attorney, you do not, do not do that. There is no hybrid attorney. Now that said,

Chris Williams:

Are you suggesting Trump broke a law, broke a rule? Oh,

Joe Patrice:

Well. So it is a rule that

Kathryn Rubino:

Don’t break them if they don’t apply to you. Chris,

Joe Patrice:

When this all started, when this started coming to light, the discussion was that he wanted to give this speech and he doesn’t have a right to do that justice and Arthur Engen decided he would allow Trump to talk. Now the reason for that is even though it’s against the rule bench

Kathryn Rubino:

Trial,

Joe Patrice:

The judge has some discretion. It is a bench trial, so there’s no jurors to sway with this sort of nonsense, and he felt, look, given that there’s very little risk of prejudice, we’re going to move forward with letting everybody feel like they’ve been heard. He just had a few ground rules. So this report comes out that he’s going to let Trump talk. That is probably an inaccurate report given what we learned later, but that’s what he says, and then ultimately he reverses it and people are like, well, now he’s just making it look worse at the end. Trump talked anyway. We eventually were able to look because the judge docketed all of the correspondence between Trump’s legal team and himself and

Kathryn Rubino:

Bless his heart,

Joe Patrice:

It’s like watching a reasonable man slowly undone by his own good deeds. You see, he jumps in as you know what, this is totally against the rules, but why not? Let’s say we just have a few ground rules. Agree. If you’re going to get up and do your closing remarks, you can’t talk about things that aren’t in evidence. You can’t start winking wild conjectures about other stuff. You can’t start talking about attacking the people, personal attacks and stuff like that. The rules that not just would apply to this exception, but apply to the lawyers who give closing arguments in a case. This is not new. He just demanded that Trump agree by a certain date that they would follow those rules. And then he stipulated that if Trump were to give a speech, he would be asked on the record at the time to clarify that he was going to abide by those rules. That’s it. Those are the requirements still

Chris Williams:

Strikes me as bad judgment from a judge. He should have known

Joe Patrice:

Better. So he just said,

Kathryn Rubino:

Well, no, I mean I think that it’s great because he’s letting Trump fail.

Joe Patrice:

So he said, look, you can talk so long as you do all these things, the deadline comes and goes, Trump does not agree to this. The judge is like, I haven’t heard anything back. His lawyers say, well, we’re not comfortable with that. He says, well, this is what has to happen. Literally the rules. Yeah, these are the rules that apply to you too. This is ridiculous. Ultimately, the lawyers then asked for the whole closing to be pushed off a few weeks because Melania’s mother unfortunately passed away and Trump was very close with her. The judge denied this saying that there were logistical challenges every time Trump chooses to go to the courthouse, which means they couldn’t change it on a dime. That caused a lot of ranting and raving because of how cruel it was to deny him the ability to grieve. Instead grieving. He went to Iowa and

Kathryn Rubino:

Which is kind of like grieving.

Joe Patrice:

He was on TV in Iowa. It was one of those situations where it’s not even like you’re trying to hide that you’re lying. Anyway, so he asks again. Then the next morning, the morning of they, he says, or the day before, he says his lawyer is write and he will be speaking tomorrow, and the judge goes, so you’re agreeing to those conditions

Kathryn Rubino:

First. I’m hearing about this.

Joe Patrice:

They do not. He says, well then no, they wait. We get to the actual moment of truth. He has now been denied the ability to speak. He says he wants to speak. The judge says, so you are agreeing to these things and Trump just goes ahead and talks anyway and does all the things that violate the rules in question. So I guess the question is the judge, a lot of people thought he’s being gamed by thinking that this is all going to work out. I actually think that he handled it pretty well. It’s not like he gave permission and then took it away. He had a plan and it just didn’t

Kathryn Rubino:

Work. Yeah. Again, I think that this only works because it’s a bench trial, obviously. I don’t think that it would’ve been a consideration at all had it been a jury trial.

Joe Patrice:

Well, this is going to become an issue because presumably in the second Gene Carroll case, which is about to go to trial, he’s going to attempt to do the same thing, and that is a jury trial.

Kathryn Rubino:

We’ll see exactly what different judges and all that kind of stuff, but I think that Judge Geron kind of handle it the best that he could.

Joe Patrice:

Yeah, the slow unraveling of a reasonable man,

And the part that gets me about it is also, so there’s a bit of eighties real estate winning through intimidation nonsense where he’s, I’ve asked for permission. I’m just going to do it anyway kind of. I’m going to declare that I’m talking tomorrow. You also, actually, another interesting thing about this is when you read the emails from Chris Kai to the judge, it becomes clear at a certain point, and I mean, I don’t know, but I challenge anyone else to tell me this is wrong. It becomes clear at a certain point that Chris Kai is no longer writing the emails. In fact, Trump has written the email

Kathryn Rubino:

Dictated Were they in all caps?

Joe Patrice:

They’re not in all caps, wasn’t the word bigly? No, they don’t go that far, but the cadence is different. The vocabulary is different. Absolutely. Juvenile sentences start getting written and I’m like, there aren’t judges who write like that, lawyers or lawyers who write like that. I was like, there is no way. I think one of the lines in one of the eventual angry emails is you are denying my client the opportunity to talk about the stuff that must be talked about, and I’m like, there is no lawyer on earth who wrote that sentence, so we’ve got this going on. What’s weird about it is also within the 3D chess game, 3D Checkers game, I guess that Trump seems to be wanting to play, it didn’t even make sense for him to talk. His argument was, I tried to have my peace and the mean old judge took it away from me, but then he talked anyway, so he got absolutely nothing from the whole exchange.

Kathryn Rubino:

You’re going to break your brain trying to make sense of it all.

Joe Patrice:

I don’t know. It’s very interesting from a trial perspective, the complete lawlessness that this descended into, and what do you also, you can’t just order the bailiff to go grab the defendant and put them in jail for contempt because the secret service is there. What is the protocol? I’ll tell you if he tries this with the Carol Case though, it’s a little bit different, like state whatever. He tries this with the Carol Case. Judge Kaplan could easily say, oh, well, it works out. We have individual detention cells right off the side of my chambers. He won’t be put into any extra risk. You can all just stay there with him. I would not put that

Kathryn Rubino:

Past him. He’s not going to do

Joe Patrice:

That in particular. I would not put that past him. If this gets, I wonder if

Kathryn Rubino:

To that point, I wonder if you could put money on that, whether or not he’ll be jailed in contempt during any of his various legal,

Joe Patrice:

Yeah, I don’t know. But what do

Kathryn Rubino:

You think the odds of that are in one of them, not even just the Carol one, but in any of them that he’ll be placed in jail? I

Joe Patrice:

Don’t know. I think that’s the only one where I could see it, because everybody else has all sorts of issues where like, oh, well, you can’t put a former president in gen pop. You can’t put a man child in the corner. You can’t just have him in the tombs or whatever. But you could absolutely. I mean, anybody who’s been to the federal courthouse in New York, they have a fully functional jail cell off the side of the chambers where people are held before they come into the hearing, and that’s a perfectly safe place to keep a former president on ice until he chooses to agree. I don’t know. McDermott will and Emory is vault’s number one law firm for associate satisfaction three years running. Why? Because they’re doing big law better. At McDermott, you define what your success looks like, they help you achieve it. Award-winning professional development program and hands-on mentorship propel you toward your goals while the industry leading wellness benefits help you feel your best. So you can do your best. Want to see how your life could be better at McDermott? Head to mw.com/ Above, the Law. We’re back. Let’s talk about slaughter in May. It’s been a theme for a while now that post pandemic people want to not have to go back into the office. There’s been push to do some hybriding. There are some law firms that are not playing ball. You had a story this week, Kathryn, about one of those.

Kathryn Rubino:

Yeah. This is slaughter me. They are a three day in office is kind of their standard and this is a Magic Circle UK based firm, and they let people know that while the majority are in fact complying with their three days in the office standard, not everyone is, so they will be using their card swipe information to determine who is and is not going to be in the office. And it’s not just the office. If you’re at a client’s office for a thing or if you’re in court, all of that counts towards, and it’s like I think a three day rolling average. So if something happens and you’re only in two days, one week for the next, that all counts, that then you’re in compliance and they’re going to be using all of the technology available to them in their office building to make sure that people are in compliance.

And if you are not, you should expect that they are going to share that information with your practice leader, the partners you work for, and you’ll be spoken to about it. Yeah, I think it’s interesting because I think that slaughter in May didn’t have to tell people, right? You should presume all you out there, if you’re in big law and your firm has a policy, you should presume they’re doing this because they have the information and they don’t have to tell you what privacy, right. Do you? You don’t know. They absolutely have access to this information. They’re absolutely using this information, a good first slaughter in May for letting people know that this is about to be a problem. If you’re not in compliance, it’s better than some firms that we’re hearing about who have even stricter policies. Some are four day in office policies and they’re just docking your bonus as a result. At least they’re giving everyone a heads up in this instance.

Chris Williams:

Do you think there’s something British about how they went about doing it? It was this polite warning, really just a really British threat. Yeah.

Kathryn Rubino:

Listen, it certainly read very, very demanding. I don’t think it was not a suggestion, but I think you’re right that there’s something kind of genteel about giving folks a heads up before you use it. I don’t know. I would very much assume that my card swipes are being used by the firm. If my firm has a policy in place about how many hours you’re supposed to be in the office or days you’re supposed to be in the office would absolutely, everyone should assume that if there’s technology that gets you into the building, very much assume that your boss sees that information.

Joe Patrice:

Oh yeah. Or at least can, the one thing in your favor is that a lot of lawyers are busy doing other things and don’t have time to babysit, but if they do have some time to bill to whatever the code number is for babysitting the associates, they will be looking

Kathryn Rubino:

Or more to the point that some partner fuels like somebody’s getting away with something and tasks their admin with doing it or somebody in some office at the firm for doing this, which probably worse. They don’t have the same sympathies necessarily for associates that

Joe Patrice:

No, it’s unfortunate. It’s unfortunate. We do have so much. We had so many advances in hybrid technology and so on. I actually did read last week a report from some other publication covering law, and I don’t remember which one it was, but there was some movement apparently this year in some firms moving towards hoteling. Obviously we talked a lot about throughout the year, the big law firms who doubled down on their leases and got even more office space. Even though we live in a world where we could work our

Kathryn Rubino:

Hybrid like law firms, I think we’re the number one corporate lease holders in New York last

Joe Patrice:

Year, and I think Paul Weiss’s new office is the biggest commercial real estate deal of the year or something like that. But I did see some news that there was some move towards hoteling on the part of firms a little bit further down the AM law list, and that’s encouraging because of course you can provide better for your clients who don’t have a ton of overhead, and we have the technology to avoid a lot of that, and so get a smaller office, have people hotel their space. You help everybody out anyway. Okay. The last thing we want to talk about is a blind item that you wrote, Kathryn. So a blind item of course, for people who don’t necessarily know that that’s where we have information, that something’s happening. We did not have anybody willing to confirm on the record, and so we didn’t name the firm involved, but this is a thing to know.

Kathryn Rubino:

Yeah, this is bonus related, and we are continuing to get tips about this, so as if this situation seems familiar, please feel free to email us tips at Above the Law dot com, but we got information that some firms having announced market compensation in terms of bonuses and previously had no hours requirement to receive your full bonus, retroactively went back and said, you are not in compliance and received as low as zero to 25% of the stated bonuses.

Joe Patrice:

So to be clear, so this is a firm who made the announcement that they were matching the market, correct. So that we would all write about how they matched.

Kathryn Rubino:

Correct.

Joe Patrice:

And then they turned around, changed their policies to

Kathryn Rubino:

Not

Joe Patrice:

Pay

Kathryn Rubino:

People. Yeah. Well, I mean, listen, some folks who we write about that matched have always had hours requirements. You have to bill extra of hours, and that’s built into the expectations and something we note cover when we cover these stories. But I think that it was noteworthy in this instance that they previously did not have an hours requirement, and they made that determination this year when there are not just bonuses, but also raises going around the top of the AM a so that’s not great.

Joe Patrice:

Amazing. Yeah. You can’t do that retroactively if you want to set a new hours requirement. You say people

Kathryn Rubino:

Do.

Chris Williams:

Has this happened often in the past?

Kathryn Rubino:

A few times. Actually, when I was writing the story, I linked to a couple of instances where it had kind of come out after the fact that not everyone, and listen, of course, not everyone, even whatever most generous firm you can think of, if somebody is on the brink of getting fired, they probably aren’t getting their full bonus if they’re legitimate performance issues. That’s true, but when you’re talking about not the exception that doesn’t get their full bonus, but rather a new policy where large chunks of folks are not getting their full bonus, then I think we’ve got a real problem.

Joe Patrice:

Yeah, yeah. No, that makes sense. The point of an hour’s requirement is to say, here’s our expectation. If you meet it, you get something. So when you don’t tell them what that is until after the fact, it actually defeats the whole purpose of the carrot and stick.

Kathryn Rubino:

Well, I mean, it’s just a stick. Yeah. It has the effect of saving money in the current year. You announce it and as a going forward measure certainly as the full carrot and stick.

Joe Patrice:

Yeah. I mean, yeah, sure. But that’s why you don’t do it retroactively. You don’t get the, it’s pretty, you’re

Kathryn Rubino:

Just cheap. Yeah. Yes. Well, again, that’s why I think it’s not coincidental that it happened in a year when raises were also announced in a year where I think the raises were very much unexpected. Thank you. Millbank, and then CR Bathroom coming over the top for that. I don’t think that the majority of folks expected it to happen this year, and I think that while people, particularly the ones that are known for being in the top 50, want to be able to say, of course we match. It’s easy for us to match that. The financial reality may not be there for everyone or maybe, but then their partners might take a hit and that’s not something they’re willing to pay. I mean, when you’re talking about someone who’s already making millions, perhaps a hit is not the right way to phrase it, but you get

Chris Williams:

What I saying? Yeah. I think the partners making hundreds of millions of dollars in profit can afford to pay their people a little more.

Joe Patrice:

Yeah. All that’s a thing to be on the lookout for, whether it’s happening or not at your firms, you should always be giving us the tips.

Kathryn Rubino:

If you hear again, please, please reach out if you’re not comfortable confirming on the record, even just on background helps us build out these stories and note trends in the industry, all that kind of stuff. Again, it’s tips at Above the Law dot com

Joe Patrice:

And I’ll take this opportunity to be like, this is a thing that’s been true for a while. One thing that we often hear long after a story is somebody will write and go, I can’t believe you didn’t write this. And it’s like, well, nobody spoke. We asked, and we can’t divine this sort of stuff. And I think there’s a reticence. Some people have to tell us because they think, oh, this is important enough. Somebody else is going to tell them, well believe that everyone else in the firm is thinking the same thing, and if you all believe that, then we never hear, so we would rather hear the same story multiple times than not hear it at all

Kathryn Rubino:

Alright, I’m going to run to a pediatrician here, but thanks for your indulgence. Excellent. And Frankie Ale Ru’s first podcast appearance.

Joe Patrice:

Alright, well there we go. Thanks everybody for listening. You should be subscribed to the show to get new episodes when they come out. You should be listening to the Jbo Kathryn’s other show. I’m a guest on Legal Tech Week Journal Roundtable. You can also listen to the other shows on Legal Talk Network. You should give stars and reviews to this one and hey, all of those two, why not helps other people find them? You should be reading Above the Law, so you see these in other stories. Before we talk about them here should follow us on social media. The blog is at ATL blog on Twitter. I’m at Joseph Patrice Kathryn’s at Kathryn one, the numeral one Chris is at writes for rent as in writing, writes for rent. We’re also on blue sky. Everybody’s kind of the same except I’m Joe Patrice over there. I got that handle first. So with all of that said, I think we’re done. We will check in with you all next week.

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