Don’t Let The Client Write The Brief As A Treat

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by my colleagues, Kathryn Rubino.

Kathryn Rubino:

Hey.

Joe Patrice:

And Chris Williams. And we are here to talk about the big stories from the week that was in legal. I wasn’t enthusiastic like. Okay. So a little bit of small talk to stave off the allegations that were AI bots like everything else in the world is.

Chris Williams:

I wonder how often we get those allegations, perhaps you. I mean, maybe. I think Kathryn has a budding social life and I’m watching a bunch of anime. So I’m a human. I check off the capture every time.

Joe Patrice:

That’s true. That’s what small talk is. It’s like an audio capture for us.

Chris Williams:

I don’t think you get what I’m saying, Joe, but okay.

Joe Patrice:

Yeah. No, it is. It’s like we’re proving humanity here.

Chris Williams:

Gotcha. Proof of

Kathryn Rubino:

Life.

Joe Patrice:

Yeah. Which legal is … Last week was of course a big week in legal AI because it was the clock

Chris Williams:

Process. You immediately start talking about AI.

Joe Patrice:

Yeah. Well, I mean, it is the most important thing that’s actually happening in our industry. The Claude Apocalypse happened where Claude now connects to basically everything.

Kathryn Rubino:

Is it apocalypse or are we concerned about this? This

Joe Patrice:

Seems like- Yeah, I mean, that’s a great question. I mean, they dropped all of the announcements. It wasn’t just like, oh, here’s a partnership with one company and here’s one with another. It was all of them all at once, like 30 connections dropped kind of a shock and clawed approach.

Kathryn Rubino:

Okay. Okay. And I know factually you must have been working on these for more than just now. These are not things that you came up with about a second ago.

Joe Patrice:

That particular joke I did come up with instantaneously, but I came up with it instantaneously on the other show that I am on where I’m a panelist on Luco Tech Week journalist round table. But I was plagiarizing myself here.

Chris Williams:

In actual person life, I did a 5K for the weekend. Which seems more impressive than Walk Three Miles, which I’ve done before. But yeah, this one was with the Philly bar and there was a point I was like, “That person looks like they can issue spot.” And I was like, “Wait, I’m at a lawyer thing.” Yeah. So it was nice. I think it was to raise money to fight ovarian cancer.

Joe Patrice:

Nice.

Chris Williams:

FU to cancer generally, but specifically ovarian this weekend. And it was nice. There were good snacks. There was no Lexus nexus merch, but there were granola bars and that’s nice.

Joe Patrice:

Cool. Well, with that, we should get into the meat of our conversation. What do we have to talk about? Meti. Meaty. Yeah. I don’t think there’s anything meat-like about this. We have more to talk about with the insider trading case. We’ve touched on this before, but there’s a massive insider trading scandal going on with a ring got broken up because of a whistleblower coming forward. It involved big law. I

Kathryn Rubino:

Mean, that’s really, I think, one of the most interesting parts about this. So there was a circle of insiders mostly at large law firms as well as sort of their extended network of folks, folks that they met through colleges, law schools, other sort of professional connections and made over the course of a decade bunches and bunches of money. But there was another … We knew that Wachtell, somebody at Wachtell was formerly at Wachtell was involved, but that person was identified based on some of their biographical information that was included in the original filing, although their name was not formally revealed, but Avi Sutton, who interestingly had appeared in the pages of Above the Law previously way back in 2013.

Joe Patrice:

Oh, wow.

Kathryn Rubino:

A different error entirely for ATL, but during the Legal Eagle Wedding watch that used to be a feature at ATL, his wedding was one of the ones featured back then.

Joe Patrice:

That was a feature that was a columnist did that for us and none of the full-time folks ever were really on top of it, but that’s a feature that really was classic ATL, just scouring the wedding announcements.

Kathryn Rubino:

It was a very early blog feeling, right? Like back in the gawker stalker kind

Joe Patrice:

Of- Right. Chris has a question here.

Chris Williams:

Yeah. What wasn’t exactly for people that weren’t here for the

Joe Patrice:

Last 15 years? What figured it was going

Kathryn Rubino:

To be. It was a look at the New York Times wedding announcements and anyone that was a lawyer would get featured in there and it would kind of compare them and have folks vote on the legal wedding of the week or month or whatever it was.

Joe Patrice:

If you’ve ever read the New York Times wedding announcements, there were some embarrassing things in there that were ripe for people to mock. Sure.

Chris Williams:

This would’ve been back when a common sexual was salon, right?

Joe Patrice:

Yeah. Correct.

Chris Williams:

Oh, that sounded like it would’ve been great.

Kathryn Rubino:

It was a moment in time that has still since passed.

Chris Williams:

But

Kathryn Rubino:

What I think is really interesting, and this particular individual was not at Wachtell at the time that the indictment came out. He had moved on to a niche financial iBank sort of situation and no longer on their website pulled off pretty quickly after the indictment dropped and this person has not been indicted.

Chris Williams:

Yeah.

Kathryn Rubino:

Take that for what it’s worth. What I think is interesting is so many big law firms are implicated by this. Now as indicated by the indictments, these are victim law firms. The law firms are being characterized as the victim, but it really has to make you think what else needs to be done in terms of security to make sure that your firm is not in the news in the future, that people at your firm have committed inside or accused of insider trading. I mean, obviously there are professional oaths and obligations and the fact that it’s a crime and all that that kind of theoretically keep people from doing this, but you want to be a litle bit more aggressive probably about policing it. And there are a lot of firms that are probably taking a good look about who has access to which documents.

Joe Patrice:

Well, yeah. And we talked about this in the past that we had that years ago even the exchanges all claimed that they were able to suss out even if you were engaged in this sort of second order trading where you didn’t take the information, but you gave it to somebody two or three degrees removed from yourself in order to make it work. And they said they were able to catch that back then, clearly untrue. One would think this is one of the tasks to bring up a subject that is unavoidable these days. This is what you would think AI would be good for to monitor trades and where information is and spot irregularities because that’s the thing with insider trading. No one really gets rich insider trading by making small, reasonable trades. It’s always something that jumps out.

Kathryn Rubino:

Well, yes, and that’s certainly true, but for a network that operated for a decade, you don’t have to be above the fold levels of big splashy thing because you’re doing it constantly. But the other thing, which you’re talking about AI and the exchanges know, et cetera, but firms have access to and can keep track of who looks at certain documents.

Chris Williams:

When

Kathryn Rubino:

You open a document, if you’re on a deal, it’s one thing, but if you’re not on a deal, that should go on some list where some firm is looking up and saying, “Hey, is this something we need to be aware of? Oh, ask. Oh, why did you open up that document? Oh, I was looking for a sample for this. Okay, great.”

Joe Patrice:

All the major DMSs have those sorts of protections. And a lot of them even have protections that prevent deals from being looked at until they are public, except by the people on the team. So you can’t utilize it to find a model when it’s still in the process.

Kathryn Rubino:

I think one of the deals that was involved in this scheme, somebody was on a leave of absence from the firm and logged in, found out certain deal information and then someone in the network wound up buying stock in the deal case.

Joe Patrice:

Yeah.

Kathryn Rubino:

I mean, it was pretty extensive,

Joe Patrice:

But this is going to be a story for a while that we’re going to get-

Kathryn Rubino:

There’s still plenty of people who are unnamed in this scheme and when people are starting to suss out who folks are, that’s obviously something above the law as well as mainstream media as well, because it’s so large is definitely covering and as it kind of winds through the criminal justice system, I’m sure there’ll be more to say.

Chris Williams:

The thing that gets muse degreed, I can’t imagine making 200,000, $300,000 a year and just don’t be like, “This isn’t enough.” Seriously. I mean,

Joe Patrice:

I will say that those early years where you’re making two, obviously this went on for a really long time, but those early years of making that kind of money, the chunk being taken out by the student loans makes that money seem like it’s not a lot very early on.

Chris Williams:

But no, what was it? Recently Speaker Johnson was like, “Hey, we have to do insider trading. We only make $170,000 of smart years.” This is just that. I think- And

Joe Patrice:

Most of them are millionaires on top of that.

Chris Williams:

Yeah. Yeah.

Kathryn Rubino:

You’re not talking about big law associates, but-

Joe Patrice:

Correct. No, but the Congress. Yeah. Well, yeah, no. I mean, the Congress side of things, I did see that representative Jack Kimball, which is not a real representative, but a brilliant parody account had one of his finer outings talking about that and got all sorts of people who really should know better yelling at him over his demands for more money.

Chris Williams:

I think the wording was that tweet should have been ran by the, we only make $170,000 a year tweet, should have been ran by PR. And this one’s like, “We don’t care about

Joe Patrice:

Puerto Rico.” I don’t care about Puerto Rico. Yeah. It’s so good. All right. Well, I’m so glad that someone else saw that exact exchange. All right. Well, let’s take a break and we’ll be right back. Okay. So the next thing that I think we should probably talk about is we had another brief in the ballroom case. I know, Kathryn, you’ve been following this. You’ve been following the ballroom case generally. I’ve been following the back and forth of this current motion.

Kathryn Rubino:

Yeah. I think that if you were to break down our division of labor on this pretty large issue is that I kind of have been tracking Judge Leon’s increasingly frustrated and agitated responses to what’s going on, whereas you’ve been covering the briefcraft of it all.

Joe Patrice:

Yeah. It’s interesting because this whole case is basically a legal writing classes nightmare. So if you’re a 1L taking legal writing, this case is a nightmare because Judge Leon has never met an exclamation point that he doesn’t want to make.

Kathryn Rubino:

Listen, he knows what he thinks.

Joe Patrice:

And what’s happening in the rest of the case is that even a brief, which is not signed by the actual lawyers who are doing most of the case, the actual career prosecutors involved in most of the case or not, I mean civil side, but the career DOJ lawyers who are doing most of the case are not signing off on these. They’re being signed by Blanche and Woodward and McCotter. They are submitting briefs demanding that the case be dismissed. How shall we put this? The do not read like people who have law degrees wrote them.

Kathryn Rubino:

Or edited it even.

Joe Patrice:

Or even bothered to edit.

Chris Williams:

They do not read like people who write wrote them.

Joe Patrice:

Yes. They do read like one person wrote them probably on Truth Social and it got formatted with a caption. The concern here though, so they put in this first brief that is riddled with wrong capitalizations and incoherent claims and it really does read like one of the Truth Social posts, which- It’s

Kathryn Rubino:

Literally like, what if Truth Social didn’t have a

Joe Patrice:

Character

Kathryn Rubino:

Limit?

Joe Patrice:

Yeah, exactly. It’s being signed by lawyers and what we wrote about at the time is this is the problem, like you have an obligation not to let your client dictate things. Run

Kathryn Rubino:

Into a buzz saw.

Chris Williams:

But it’s also harder to work on that obligation when the Supreme Court says that your client can do whatever the fuck he wants with no qual rights.

Joe Patrice:

Well, I mean, I point this out in both my articles about this subject. It is also worth noting that he is not in fact the client. The client should be the United States government, not the current occupant of the White House, but that aside.

Chris Williams:

If Trump had a pithy, I am the state, he would say it. He just

Joe Patrice:

Doesn’t. So it’s riddled with errors. The first one was the response brief came back, which was a very straightforward four pages of, “You got to be kidding me with this. ” And then that’s where I kind of thought the reply brief would do cleanup. Basically they’d sandbag everything to the reply brief and it would be written professionally. That turned out not to be the case. Nope. It doubled down on the kind of incoherent rambling. And this gets to, and we’ve talked about how I think that the long term, the only real accountability for lawyers involved with this administration is in disciplinary action after the fact, disbarment, sanction, whatever.This

Is some rule 110 stuff, right? You can’t as a lawyer say hands off, I’m letting my client write this and then I’m going to sign it without checking. That’s a problem. I don’t know as though there’s like this comes close to … It doesn’t make any fraudulent claims. It is a frivolous motion, but they quote the rule. So I guess it’s not probably across the line of real frivolity, but if this is the standard operating procedure that they’re going to go down, this is the sort of thing that should implicate the licenses of the lawyers who are actually signing their names to it.

Kathryn Rubino:

I mean, it won’t.That’s

Joe Patrice:

A whole other story that we aren’t really talking about this week, but the DOJ is also suing the DC Bar in order to block them from to basically threaten them to not pursue ethical claims against government lawyers. In this case, they’re mad about cases that are involving Jeffrey Clark specifically, but also Ed Martin, they reference, but don’t really make a claim. Obviously, Clark attempted to have the DOJ lie about fraud in the election that they knew didn’t exist in order to set up a bid to have a coup. And Ed Martin has been running around threatening people, even though as he pointed out, we don’t necessarily have charges, but we’re going to shame people, which is not how lawyers in prosecutorial roles are supposed to operate by

Chris Williams:

The

Joe Patrice:

Ethical rules that we have. But the DOJ is trying to get those cases killed on the argument that the DC Bar shouldn’t be allowed to prosecute government lawyers for ethical claims, ethical violations.

Kathryn Rubino:

Listen, you miss 100% of the shots you don’t take, which appears to be the mantra for this DOJ.

Chris Williams:

One of the dumber things, and there’s a lot of dumb to dumb through, but I just feel like whoever wrote this, and it was probably Trump, it seems like they forgot the first rule of fight club. It’s like, I think the first rule about the top secret military ballroom is you don’t refer to it as top secret military ballroom.

Joe Patrice:

The militarily top secret ballroom. It’s not even a phrase that makes a phrasing that makes sense. There’s so many places. There is a point where later in the brief the word bereft gets used and I’m like, “Oh, they slipped that one past the goaling.” There is no way. I mean, that was one of the takeaways of, was it the Times? Somebody who had the big newspaper who had the article about how we went to war with Iran and there was apparently an exchange where I believe it was one of the military leaders said that it was farcical to believe that a simple airstrike would result in regime change and Rubio apparently jumped in and said, “That means it’s not likely.” And it’s just like he understood that the word farcical was going to go way the hell over Donald Trump’s head and he needed to jump right in and be like, “What that means is … “

Kathryn Rubino:

Oh, we live in the dumbest timeline.

Chris Williams:

I wonder if anyone was there to do that for the … I’m not going to say his name correctly, I’m sorry, but the she thing where he invoked that, I think it was like a Greek parable, like the problem of falling nations in rising ones- The city, something like that. The trap. Yeah, the trap.

Joe Patrice:

Yeah.

Chris Williams:

Yeah. And I’m sure Trump was eating his burgers like, who’s trapped?

Joe Patrice:

Yeah. The only thing he understands about Greece is I’m sure he has opinions about Christopher Nolan’s The Odyssey, now that that’s apparently the right wing rage of the weekend.

Chris Williams:

I think it was by Elliot Page being Achilles or something. And Elliot, he’s not even the character playing that role or …

Joe Patrice:

They were mad about Paige, but they’ve moved on to Lupita Nuanga playing Helen of Troy and they’re like, “Why are you changing the race of this character that didn’t actually exist in real estate?” I

Chris Williams:

Personally think they should have picked a … I’m classical in this regard. They should have picked a person that was born of an egg.

Joe Patrice:

Yeah, right. Was Helen an egg? It definitely was a Zeus offspring.

Chris Williams:

Yeah. I think there was a swan involved of some kind, but yeah, it’s one of those things where it’s like when Christians quote the Bible at you, it’s like, “You didn’t do the reading, you’re just saying the words. You don’t know the context.

Joe Patrice:

All right. Well, let’s take a break and we’ll be back in a moment. All right. Finally, this is a story, a feel good story for Kathryn to talk about.

Kathryn Rubino:

Yeah, it’s kind of a different tact, but sometimes law firms do things that are intended to just develop their associates in a way that is really meaningful and good. Susman Godfrey got a shout out from Judge John Tiger because they let a young associate handle a recent argument. Third year associate, well, first year at the law firm, but two years of federal clerkships under his belt as is Susman’s want. They generally only hire folks who’ve already done some clerkships have clerkship experience and let him handle with a partner, but let him handle the majority of the oral argument. And the judge was really, really impressed said to him, and so your first year at the firm, you’ve only started however long ago at the firm, less than a year, you got your JD in 2023, is that right? And nonetheless, the firm thought it would be a good idea for you to argue in federal court.

What I want to say to Susman Godfrey is good for you. Good for you, really. Which I kind of enjoy how it feels like it was slow played there. I think it’s actually a wake-up call or should be for the majority of big law that it actually helps and matters when you’re spending the time and effort to give your associates meaningful experience early in their careers.

We talked previously, we’ve talked a million times, I think probably about the sort of overall big law model about burning and churning through associates, that the number of folks they hire as first years are not at all the number of people they want eight years later when they’re making partnership decisions. They want people to leave for other pastures. That’s sort of the model, but that’s not true at Sue Smith, which is a weird kind of a firm in the sense that it is big law because of its revenue, which puts it pretty high overall. It’s in the Am Law 100, but it’s also the smallest firm by headcount in the Am Law 100. I think it’s just about 300 attorneys or something like that. And it certainly started as a litigation boutique, but I don’t know, do you still call it a boutique? Because it definitely has the money to be big law.

Joe Patrice:

Yeah. No, I struggle with that one. That’s an internal categorization problem we have at Above Law. I always am wondering where do we … Because Boys Chiller’s another one in that situation where you’re technically big law by how many people they have, but they function in the boutique mindset. And I also think that in some ways, I think that about Quinn Emanuel too, obviously very huge, but if you are a firm that is kind of litigation only or at least litigation forward, the boutique term kind of fits.

Kathryn Rubino:

Yeah. And certainly that’s how a lot of these firms started. I don’t think that when Susan Montgomery started, they thought that they would be where they are. Maybe they did, but long term. But in terms of categorization and internally at Above the Law, I feel pretty confident calling any firm that has the revenue that places it in the top 100 or 200 firms calling them big law. I

Joe Patrice:

Think

Kathryn Rubino:

That’s right. I think that that is a clear bright line. I’m comfortable with that, but I do think that always kind of needs a little bit of an asterisk when you’re talking about the firms that started their journey as litigation boutiques. And Seusman just does litigation to this day. They want people who want to go to trial. So it’s definitely a different model.

Chris Williams:

If you are committed to a new word, boutique is French for shop. I think whatever it would be would be something that’s the French equivalent of medium shop or a larger shop.

Joe Patrice:

Yeah. Just kind of like not a big box store

Kathryn Rubino:

Like

Joe Patrice:

Artisanal … Yeah.

Kathryn Rubino:

Artisanal law firm. That’s true.

Joe Patrice:

Artismal

Chris Williams:

Firm. Yeah.

Kathryn Rubino:

I like it. It’s pretty artisanal, I

Joe Patrice:

Think. Organic.

Kathryn Rubino:

But I think that’s true also of some other shops that focus on IP or some other- Another

Joe Patrice:

Good one, IP Boutique.

Kathryn Rubino:

They’re distinct-

Joe Patrice:

IP boutiques probably should be called Artisanal

Kathryn Rubino:

Actually.

Chris Williams:

Ooh, that was good. I hate that. That was good.

Kathryn Rubino:

That’s good. We like that. But it is worth thinking about that these words we use to kind of broadly talk about the industry are not actually one size fits all.

Joe Patrice:

Yeah. Well, all right. We’re done a little bit early today. Good for us.

Kathryn Rubino:

Yeah, we did it. We all. We did. We

Joe Patrice:

Were efficient.

Kathryn Rubino:

We were efficient. Well, you know what it is. The last story doesn’t have a lot of anger to it. It’s just like a good job. Yeah. And you know what? I have to say thank you to the readers for reading that story that just sometimes you need a good pat on the shoulder for … You did a good job. It’s

Joe Patrice:

Just a

Kathryn Rubino:

Happy story.

Joe Patrice:

It was one of those that made you kind of have some faith in humanity because yeah, it was not one of our salacious stories and people flocked to it anyway. Yeah. Let me

Kathryn Rubino:

Say that the associate in question was Dylan Salzmann, and so congratulations to him as well for a great oral argument.

Joe Patrice:

Yeah. All right. Well, thanks everybody for coming and checking out the show. You should be subscribed to the show so you get new episodes always before they drop. You should be listening to The Jabo. Katherine’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable. We’ve got talking about tech. We’ve got other shows for the Legal Talk Network to listen to. You should be reading above the law to read these and other stories before they come out social mediaabovelaw.com. Obviously I met Joe Patrice, Katherine’s at Katherine one, the numeral one. Chris is at rights for rent as in writing, not as involved.

Chris Williams:

Not for the things Supreme Court recently eviscerated when it comes

Joe Patrice:

To- I mean, civil rights. I guess I don’t need to make that clarification anymore. Civil rights not being a thing. I can now say rights only means that you’re physically writing things. And then with all that, we will check in later.

Chris Williams:

Peace. Peace.

Joe Patrice:

Bye.