The Trump Administration Struggled With The Bar Exam And Its Inbox

Episode Notes

Transcript

Kathryn Rubino:
Hello, and welcome to the latest episode of Thinking Like a Lawyer. My name is Kathryn Rubino. I am joined today by one of my colleagues at Above the Law, Staci Zaretsky Welcome. Hey, Staci, how are you?

Staci Zaretsky:
I’m great. How are you?

Kathryn Rubino:
I am doing well. Regular listeners, we’re probably guessing that Joe is at yet another tech conference. He does all of our legal technology coverage. And in the fall, that means he’s hopping from location to location at various tech conferences. So thank you for joining us today, Staci.

Staci Zaretsky:
I’m happy to be here because Joe has back to back to back to back tech conferences.

Kathryn Rubino:
Yeah, I think he goes literally from one to another twice this month, and we only have 10 days left in the month. So yeah, he’s got quite the schedule ahead of him, but thank you for joining us when Joe is not available. And we start this podcast with a little thing we like to call Small Talk, What’s Been Going On? Listen, there’s something that has to distinguish us from the AI box, right? And small talk it is.

Staci Zaretsky:
I’m chaperoning a school dance next week. I’m really excited.

Kathryn Rubino:
Oh my God, what age? What age? What ages?

Staci Zaretsky:
Nine and 10.

Kathryn Rubino:
Oh my God.

Staci Zaretsky:
My son said, “Don’t you dare dance. I will be so embarrassed if you dance.” I said, “Well, look away.”

Kathryn Rubino:
I don’t even think I had school dances at that age. I feel like that wasn’t until junior high or maybe even high school. I don’t even remember.

Staci Zaretsky:
I think they’re trying to get them ready for middle school.

Kathryn Rubino:
Well, listen, they say that the younger generation is a little bit more socially stunted than previous generations, so maybe this is actually necessary. So you’re doing the Lord’s work there.

Staci Zaretsky:
And it’s a Halloween dance, so I’m very, very excited for them. They’re going to have a lot of fun. Oh,

Kathryn Rubino:
That’s awesome. I just got back from Disney World, took my three-year-old to the most magical place on earth, Disney World. So that was incredibly exciting. Did a couple of the parks, not all four, even though I personally enjoy doing all of them. She’s three, got to break her in slowly into this lifestyle.

Staci Zaretsky:
Is she still young enough to be free to go?

Kathryn Rubino:
No, that is two and under. Three, we had to pay for everything, including we did a couple of character dining meals where the characters all come to your table so you’re not waiting online to meet Winnie the Pooh. And we had lunch at Crystal Palace where you meet Pooh, Tiger, Ey, and Piglet, which she loves Piglet. It’s one of her contenders for Halloween costume. She still hasn’t settled on something that’s at our Mirabelle, I think at this point. But we spent $60 for her to eat a bowl of soft serve ice cream. That’s literally the only thing she put in her mouth was chocolate soft serve ice cream. She had one bite of a lick bite of a Mickey Waffle and soft serve ice cream, but it was $60. But it was actually really good because we had done a character mill before that and she was very hesitant about the whole meet and greet kind of thing.
And she kind of went back and forth depending on which characters and her mood, et cetera, about whether or not a meat and greet was her bag. But she gave Eor the biggest hug and Eo’s face, it was just so sad by default and it was just the most adorable, heartbreaking, wonderful picture. She gave Eor a hug. She did well with Piglet too. And then by the time we got to Pooh, because the other characters come to your table, but you got to wait a little bit of a line to go see Pooh, and she just ran up and gave him a hug. Oh, that’s

Staci Zaretsky:
So cute. The memories are worth the cost.

Kathryn Rubino:
Listen, listen, there’s no money. Everything’s free. At the time that you’re in Disney, you got to pay it later or before, but in the moment you got to just lean into it and enjoy it, which is what I did. But yeah, we paid a lot of money for her to eat ice cream. It wasn’t getting good ice cream. It was the most generic soft serve ice cream, but it was the only thing she would eat. So you got to do what you got to do.

Staci Zaretsky:
Kids man.

Kathryn Rubino:
Kids man. Honestly, if she had had one chicken nugget plus that, I wouldn’t even think about it. It would just be like, oh no, it was fine. It was great. But you wouldn’t even eat a single chicken nugget. Anyway, despite my best efforts, this is not in fact a Disney podcast. So we will move on to our stories of the week. Biggest story beyond kind of legal, but in general is the Trump Press Secretary that was. You wrote about this a little bit at the end of the week as well. What happened?

Staci Zaretsky:
Is she a lawyer or isn’t she a lawyer? It’s a mystery to some people, but for actual lawyers, it’s not really a mystery. She is not a lawyer.

Kathryn Rubino:
Yeah, you’ll recall that Katie Zachariah?

Staci Zaretsky:
Yes, Zacaria

Kathryn Rubino:
Was Trump’s press secretary for all of five days. She is a graduate of Pepperdine Law School, which is a true fact. She’s not, however, barred by any jurisdiction. That means that she can call herself a graduate of law school because she is in fact a graduate of law school. But as per the ethical rules that govern the profession, not a lawyer, not an attorney. Those are things that require licenses.

Staci Zaretsky:
But she claims that the university president said that she could call herself a lawyer, and the university president is himself a lawyer who I think used to work for Kirkland.

Kathryn Rubino:
At one point, I think there was some sort of ethical distinction created between lawyer and attorney, attorney being the bar version, lawyer being the non-bar version, just a graduate of law school. But I think that is not one that holds a particularly large amount of water as anybody who has worked at a big law firm and been forced to sign their emails with their signature saying

Staci Zaretsky:
Law Clerk

Kathryn Rubino:
Is familiar with because they are not a lawyer because they have not yet passed the bar and/or done all of the paperwork to become admitted to the bar because both of those things are required to hold yourself out as a lawyer. And well before she got into the Trump orbit specifically, she was making all sorts of cable news hits being called a lawyer. She used her LinkedIn to put up her job description as general counsel – General

Staci Zaretsky:
Counsel.

Kathryn Rubino:
Of a nonprofit, which general counsel is another one of those things that do in fact require you to be barred.

Staci Zaretsky:
Exactly. That’s why so many people are talking about this in many, many, many states. It says in the ethical rules, lawyer. There’s no distinction between lawyer and attorney, and that’s why people are suing about this now. I can’t remember which state this is in. Is it Florida or California that someone sued her for unauthorized practice?

Kathryn Rubino:
I know that she had taken the California bar. Pepperdine obviously is a California law school. She had taken the California bar, failed the California bar, and then kind of stopped the process, which listen, people can take the bar exam as much as they would like who have graduated law school to try to become lawyers. But that’s kind of the process of system we currently have, whether or not… Listen, our colleague Jo has written a ton about how terrible the bar exam is and how we should just have diploma privilege plus the character and fitness kind of aspect of it as well. But that is not the world we live in.

Staci Zaretsky:
We can aspire to be more like Wisconsin, but that’s not happening right now.

Kathryn Rubino:
That’s not where she went to law school. She’s not going to law school in Wisconsin, so that’s not her bag. And I love that on social media, I think Jo wrote about how people are comparing. I was like, “Well, other famous people have failed the bar exam. Hillary Clinton failed the bar exam, all this kind of stuff to make these comparisons.” Well, first of all, she took it again and passed. So cool story. But also it’s not about failing the bar exam. That is not the shame of the story. The problem is that she decided to call herself a lawyer on television and on her LinkedIn.

Staci Zaretsky:
She’s a lawyer by declaration.

Kathryn Rubino:
Which is not a thing. This is where the problem lies, not in failing the bar exam. Listen, plenty, plenty, Clint. I think that the July bar exam numbers are out, I think today. And so there’s no shame in failing the bar exam. It is a hazing ritual that lots of people don’t get through, and that’s okay. It’s not the end of the world. It is however indicative of whether or not you can call yourself a lawyer or an attorney or general counsel. That is the line there. But I think also what is interesting is that… Do you think… I don’t. I don’t think that that is why Trump fired her. There’s lots of people who do lots of shady stuff on his payroll, not his personal payroll, though he considers it that.

Staci Zaretsky:
It’s our payroll.

Kathryn Rubino:
Yeah, our payroll. There’s lots and lots and lots of people who do all sorts of questionable stuff and give bad answers on TV, whatever. But I think that it was that she seemed like she wasn’t prepared and that she wasn’t defending him as that attack dog mentality that he has come to expect from his subjects. She

Staci Zaretsky:
Embarrassed him. That’s what it was. That’s why she couldn’t have the job anymore. She looked the part, but she didn’t act like it. That’s what it was.

Kathryn Rubino:
Yeah. I think that her demeanor in that first press conference really is what did it as opposed to… And I think this gives him kind of the excuse and Out to do that more than anything else.

Staci Zaretsky:
Exactly. And it’s really too bad that there wasn’t a Saturday Night Live episode this past weekend because it would’ve been so good.

Kathryn Rubino:
I mean, listen, you can still do it. You could have… Listen, she half the scaramuchi term as press secretary. And he’s also a very SNL ready character in our nation’s lore at this point. This can still happen. I don’t think you need to put those dreams to bed quite yet. This is still, I think, more than fair game, more than fair game. What I saw on, I think it was X, said that Josh Lyman no longer has the infamy of having the worst White House press conference. The character got quite the lesson in how important CJ is to, or any good press secretary is to the process, and so did The Nation when we watched. Katie, Flame Out. Well, I think we’ll take a quick break here and then come back with our next segments. Let’s do something a little bit different in this next group and do a bit of a quick fire of a bunch of different big Law stories, all of which are important, but maybe we’ve talked about previously you wrote, Staci, about Cooley.
What’s going on with them?

Staci Zaretsky:
Cooley is announcing a mill bed match for Associate Salaries. Woo, very exciting. And I’ve been saying for all these, better late than never, and except in this case, it’s really late. It’s starting in January. But a few other firms did that, so that gives permission to this firm to do it. I’m sure that Cravath is going to do the exact same thing because they didn’t match immediately like everyone thought they should have.

Kathryn Rubino:
Yeah, and I’ve also written about Cravath having a lot of partner exoduses this particular in the past 12 or so months. So there’s a lot of kiss change, I guess, going on at the firm and their decision to not immediately match is part of that overall story about what’s going on at the firm and the industry. But I do think that there’s something to be said about Cooley and making the announcement. We’re in October, several months before the actual raises kick in, but at least it gives associates that certainty of what’s going to happen. And maybe this is a little bit cynical, but probably accurate. This helps to prevent exodus of attorneys who are looking to find firms that match. At least folks know – Exactly. They’re not like, “Well, I don’t even know if I’m getting tops market.” They’re like, “Oh, I know I’m getting that salary, so this is what we can do.” And I think that that probably helps with the lateral market as well.

Staci Zaretsky:
And I especially like it that they did it without Cravath’s permission. You don’t need permission from Cravath to pay your associates what they deserve to be paid. You say you’re paying top of the market. Well, you’re not until you make this match.

Kathryn Rubino:
Yeah, I think that is a thousand percent accurate. I think at this point we can stop calling Cravath the leaders. This is the second time that they have dragged their feet on the matter. I think it’s time to ring the bells, make it very clear. Milbank is our industry leader.

Staci Zaretsky:
I agree.

Kathryn Rubino:
They did special bonuses already this year. They led the charge and raised associate salaries across the board. They were the first firm to do that. That is the industry leader. They are the standard Cravath and dragging their feet this long for… This raise went into effect July one. That’s when they went into effect. They were accounts previously to that. This is no longer Cravath’s world. This is Milbag’s World.

Staci Zaretsky:
Yes, because everyone who is still choosing to follow Cravath, their employees are losing essentially six months worth of salary. It’s absurd. All

Kathryn Rubino:
Right. Well, as I said, this is going to be a quick fire, like lots of stories in big laws. So the next one we’ll tackle is about quite a manual. The firm has a work from anywhere kind of program and they announced some changes to it, which is a bit of a scale back. Joe wrote about this story, the work from anywhere policy. The tone of it has really shift from work from wherever to, well, you’re probably going to be better if you work from the office.

Staci Zaretsky:
It’s work from anywhere, but with an asterisk.

Kathryn Rubino:
Yeah. And I think that you have to get approved to work in the program. There are certain requirements to come to the office every couple months to do a certain amount of days into whatever your home office is. You’re responsible for any travel costs to get to said home office. And they also made it clear that if you are passed over for promotions because you’re not in the office, that is a risk you are taking if people don’t feel like they know you as well or you’re not part of the team in the same way as somebody who comes into the office three days a week. Obviously, this is a difference in tone and the program as a whole, but I actually want to give Quinn a ton of kudos here. First of all, they’re keeping the program. So for folks who don’t care necessarily, who really value that flexibility, it’s top of their priority list, they have that option.
Congratulations, you can still do what you have to do. You have to meet the benchmarks that the firm has laid out, but you can still do it. But also, they’re honest about it. To be very clear, this has always been true. You are more likely in meetings where they’re voting on the new partnership class, whether you have somebody who’s multiple people who are willing to defend you in that meeting and to advocate for you, it’s because you know how well you know them, and it is easier to create those sorts of relationships in person. That has always been true, but at least Quinn is telling everyone that that is true and letting them be aware of the risks. And listen, there are benefits to working from home. There are downsides to working from home. At least Quinn is being honest about it. It is a good transparency story, even if it is not as great on the work from anywhere, work from home kind of.

Staci Zaretsky:
It’s just a sign of the times.

Kathryn Rubino:
Yeah, that’s the other thing too. The fact that they’re still keeping the program in a time when more and more firms are saying you have to be in the office, three or four days a week is also incredibly notable. But the last kind of story in our big Law Roundup is something you covered about parental leave.

Staci Zaretsky:
I love this story. I was so excited about this story. Lowenstein Sandler is doing NICU leave for parents who have a child who has to have an extended stay in the NICU. This is so important for parents who have a child who has to go to the NICU after they’re born. My oldest had to go to the NICU for a little while. It’s your worst nightmare as a parent to have a kid and not be able to bring them home from the hospital, to have to stay in the hospital, be worried about work at the same time. You don’t have to worry anymore with this sort of a policy. It’s such a good policy and they’re one of the very first firms in the country, if not the world, to have this sort of a policy. That’s why I think more firms should be paying attention to something like this.
More firms should be doing something like this. It’s part of a firm’s culture to recognize when an employee is suffering like this, you should do something about it. And this firm is trying to help, and I really, really hope that other firms will try to do something like this too.

Kathryn Rubino:
And this is on top of standard parental leave, right? Uh-huh. Yeah. So it doesn’t come out of… You still get the bonding time at home as part of it, but you get to also not worry while your kid is actively in the hospital.

Staci Zaretsky:
Exactly. So important, and I really hope other firms recognize this.

Kathryn Rubino:
Oh, I love that story. Okay, so that was a little bit of a… You just obviously not feel good when a kid is in the NICU, but it feels good that the firm is recognizing that they are made up of human beings and not a bunch of AI agents spinning legal work. So I guess that’s good. All right, we’ll take a quick break and then we’ll come back with our final segment of the podcast. Our last segment is another one where government lawyers wind up not looking great. That’s become a whole segment of our jobs since 2025.

Staci Zaretsky:
A constant theme.

Kathryn Rubino:
A real constant theme. This was about the Trump administration was running basically Trump propaganda based on the taxpayer dime. A bunch of former campaign ads were being rerun, a bunch of other kind of propaganda stuff was being run, and it was being charged to taxpayers to something like 19 or $20 million. It’s a ton of money. There was a TRO that was granted by Judge Roshan of the Southern District of New York and said that they needed to stop the ad buys immediately. The order was effective as of 6:45 on Sunday. However, the ads continued to run on Sunday night.

Staci Zaretsky:
Surprise.

Kathryn Rubino:
Yeah, not great. But plaintiffs were very upset about this, and part of what they had said leading up to the TRA that the government had said is that, “Listen, we’re going to run out these ads soon anyway. There’s no need to do this because we only have a few more buys left.” The judge was like, “LOL, that’s not how… You can’t delay and delay, delay and run out the clock like this. You actually have to stop it.” But they continued to run the ads, and that was apparently, according to the filings that the DOJ made in this case that they said, I’m trying to find the exact wording, was that counsel for the government emailed the TRO to the agency council at 7:58 PM, but they did not become aware of the council’s email until this morning, meaning Monday morning. So that is why they blew past the TRO deadline.

Staci Zaretsky:
“You’re a lawyer, check your email.”

Kathryn Rubino:
Yeah. And that’s like an old school ATL joke, check your email, right? That was a thing because it has always been true that you really just need to check your email. You’re not used to seeing the government face plant this notably this frequently as we have been in the last couple of 18 months or so. You know what I mean?

Staci Zaretsky:
Yeah, it’s not so great. I mean, it’s great for us because we get to write about it, but not so great for the country.

Kathryn Rubino:
Rule of Law, who’s her? Yeah, I think it shows a couple of things. First of all, if you had sent an email being like, “Hey, here’s a TRO,” and you haven’t heard back received or like, “Oh, what does this mean?” You don’t follow up, you don’t text, you don’t call, you don’t make sure. That’s kind of a big question. Red receipt, are your red receipts on? There’s a lot of questions that I have. And also, I think that even if the government, they sent the email at the appropriate time, the DOJ lawyers did, but it also, I think, shows that they had not impressed upon all of the actors in this case how important a TRO is and how this is something that’s active. And it kind of goes back to the whistleblower talked about Emil Bove saying that they were going to blow these judges kind of thing.
And now he is in fact a federal judge because we live in the worst timeline, guys. But I think it really shows the fundamental lack of respect for the process, for judges. And none of this stuff happens at isolation. This is also happening at a time where we’re seeing crazy spikes in threats against judges. We’re seeing all sorts of social media posts about judges in ways that are wildly problematic.
The executive has done a remarkable job over the last 18 months of just tearing down the judicial branch at every opportunity, every time that something is different than exactly what was in Donald Trump’s head at the moment. It is an opportunity for the far right to tear down these institutions.

Staci Zaretsky:
And it’s such a shame because it’s going to continue happening in perpetuity now, and it’s so discouraging.

Kathryn Rubino:
It’s really hard to even imagine what we, as a society, even post this Trump administration, do to rebuild the institutions. I’m not sure that the lever goes both ways and might only click kind of in one direction. Kind of terrifying news.

Staci Zaretsky:
Not so great.

Kathryn Rubino:
Not so great news, but also overarching theme to every attorney or law clerk out there who’s working at a law firm or in a legal capacity. Check your emails. You literally have devices on you. You have devices on you that give you all of your emails in instantaneous time. You’ve got to actually, in fact, check those with some regularity. That’s part of I think your pretty basic professional responsibility.

Staci Zaretsky:
You’re always on, even if you don’t want to be.

Kathryn Rubino:
Especially when you know that there’s a TRO being argued in front of a judge. You know that. You know that. There’s a TRO being discussed. There’s a hearing about a… You’ve got to be checking. Yeah. Well, sorry. I don’t know. In the legal profession in litigation, when their TRO is DEFCON seven, high alert, that is the moment that you prep for. That’s the moment. And to be like, “Oh, I didn’t check it till Monday morning. Peace out. I was off the clock,” is just real wild, real wild to me, real wild to me. It looks like we are running out of time here, but thank you all for listening. You can check out the other offerings from the Legal Talk Network. I am also the host of the Jebo Podcast. You can always read us at Above The Law. Check us out on social media.
It’s ATL Blog. I’m @Kathryn1. Your handle, Staci, is just Staci Zaretsky?

Staci Zaretsky:
Yes. Staci with an I, Zaretsky with a Y.

Kathryn Rubino:
I think that is all the things from the week that was. Bye. Peace.