Hey, welcome to another edition of Thinking Like a Lawyer on Jopitrice.
Hey Jopitrice, how are you?
Great.
That's Catherine Rubino.
We're editors at Above the Law, and we are here to do our weekly roundup of some of
the biggest stories of the week that was in legal news.
Indeed.
Yeah.
But as usual, because jumping directly into things seems so, you know, so just kind of
dry and harsh.
A little harsh.
Yeah.
No, we try to have a little bit of personality.
Which kind of like were people?
Yeah.
So we do a little bit of kind of fake acting like were people.
It's also to help you understand that the show is not run by chat GPT or something like
that.
With our little segment of Small Talk.
Small Talk.
Alright, what's up?
So I spent this past weekend at a debate tournament.
As is your want.
As is my want regular listeners know that I, in my spare time, a debate coach, and this
was actually a qualification tournament for the National Debate Tournament.
Okay.
And we qualify.
Well, there you go.
Good job.
Yay.
Good job.
It was a lot of effort, but we did it.
We did it.
Yay.
Yeah.
No, that's great.
Have you been?
I went to a debate tournament and people qualified.
So I don't really know as though I have much more to say than that.
But also recently watched the new Marvel movie, The Ultimate Mania.
Have you caught up on the latest from that?
Sure.
Is that like a, you just want me to talk?
Yes.
Okay.
It's an interesting movie.
I think that it's not getting some great reviews at all.
But honestly, I thought it was a lot of fun.
Okay, cool.
Yeah.
No, I, meanwhile, am sitting here kind of waiting.
We've got a winter storm, kind of the first winter storm of any real note of the year.
We managed in New York to avoid all of that.
So hunkering down, getting ready for-
That's exciting.
Did you buy like marshmallows to toast or something like that?
No.
Do you need s'mores?
No.
But that's a decent idea, by the way.
You should.
That seems like a summer thing.
And that if you do it on your fireplace?
I guess.
Anyway, yeah.
So hunkering down for that, heading to Chicago later this week for ABA Tech Show.
Obviously, legal tech news is what most people are super excited about.
So.
That is what keeps people coming back to this podcast.
Yeah.
It's not.
Okay.
No, that'll be-
All right.
So that brings us to the end of mercifully to the end of small talk.
Let's now-
I'm frustrated with me and we haven't even gotten to the substance of the podcast.
Yeah.
So let's go-
Let's get into the substance of the podcast.
What are we talking about first?
Oh, wow.
So somebody didn't pay attention to the planning meeting?
I did.
I did.
I think actually the biggest story of-
Oh, wait, wait, wait.
Were you just being quiet there as a setup to a discussion about quiet quitting?
You caught me.
Oh, she quiet quit.
The podcast, which I frankly wouldn't care whether it was quiet or loud.
But here we are.
Yes.
There's a lawsuit in New York that was filed last week that where a law firm is suing one
of its attorneys for, quote, quiet quitting her job.
That's kind of the headline.
That's what gets the people excited about it.
Still quiet quitting be seen as a violation of any employment contracts, etc.
That's all interesting.
But when you actually dig into the complaint, there's a lot more there.
And some of the information that we have that the, obviously an answer hasn't been filed
yet or anything.
It literally, the complaint was just filed.
But it seems like there's a lot of stuff that's going to- that actually was going on
there.
But yeah.
According to the complaint, not only was the lawyer in question, quote, quiet quitting,
doing the bare minimum, not bringing in the work.
This was somebody that was off council, not bringing in the clients and the business that
her employment contract had specified, but also doing things like putting in time sheets
for a full day's worth of work.
But according to the complaint, she only logged into her work computer for a few minutes
a day and was still doing time sheets that indicated otherwise.
Some people still like researching in the library.
Maybe that's what will be revealed in the- I am shepherdizing cases.
Could always be, listen, you got to keep an open mind until you see all the documents
and everything gets kind of played out.
But she also allegedly started her own law firm while she was employed at her work.
Another law firm.
Another law firm that complained to ledges that this law firm was in direct competition
with the law firm that she was employed at as well.
So obviously there's a lot of details here.
We'll see what winds up happening, whether or not her fiduciary duties were implicated.
But she has retained counsel of the Wigdor law firm who does a ton of employment work,
especially in the discrimination field.
And that's actually what the complaint alludes to, but also the statement from her attorneys
so far also talk about is that she says that she was actually a victim of discrimination.
And the complaint says that she had these allegations of discrimination in attempt to
quote, extort money from the law firm once her, you know, quote, scheme of quite quitting
was discovered, but never actually filed.
And turns out, I think when the answer when there's more filings, we will hear more about
what it would supposedly went on.
Yeah, it seems to me as though when you're when you've got Wigdor involved in this case
that the answer is going to have a lot of additional counter claims here about what was
really going on.
Yeah, no, this is going to be an interesting one to follow.
Like, look, I mean, I'm going to throw a little bit of shade here.
Like the story was mostly popular because you jumped on the incredibly tired trope of
quiet quitting for SEO purposes.
Shame on you.
Wow.
Well, I mean, first of all, I do think it's interesting because the complaint itself
calls it quiet quitting and kind of foregrounds it when, you know, you kind of get this in
the opening graphs of a complaints.
And then as you're looking at it, it's it's not necessarily what I would consider quite
quitting.
There are the, you know, the breaches of the alleged breaches of fiduciary duty.
There's the, you know, the time, time sheet discrepancies that they're alleging.
There's a lot of other stuff in there, but they both kind, they foregrounds in the complaints,
the notion of quiet quitting as well as sort of the other trend that people like to talk
about, you know, post pandemic of people working multiple jobs, surreptitiously remotely, right?
So that both employers are not aware that they have two full time jobs, but they do,
they get the money, they get the, you know, all the stuff for that and don't put in 16
hours a day, but rather throughout the course of eight hours managed to do two full time
jobs.
So they, I think that the law firm that filed it, Napoli, Schlocknik, I think that they are
wanting, you know, this kind of attention to the lawsuit.
That's, I think why they're foregrounding those arguments when I think that, you know,
breach of fiduciary duty alleged by attorney is not, it's not what they, with how they're
writing this brief.
Yeah.
Okay.
So it's not you who made a cheap SEO play.
It's the law firm.
I'm just, I'm reporting what was out there.
Oh, well, yeah.
No, it is interesting whether or not this winds up being a quite quick.
I don't know.
And again, this seems like a messier lawsuit than just is quite quitting good or bad.
Yes or no, you know, I don't think that that this is what this case will wind up being,
but I think people are interested to see how judges and, and how employment law deals with
the concept of quiet quitting and how does one prove that?
And I don't think that quiet quitting is used to mean a lot of different things, but
I, and I'm not sure everything that falls under that banner is something that is problematic
even.
I think a lot of it is perfectly fine, but you know, some of the allegations and the
complaints are not, you know, if you're putting in a timesheet saying you worked X number of
hours and, you know, that's obviously different.
Yeah.
That's different than quiet quitting, I think.
Yeah.
And this is also true that depending on practice areas, you don't need to be logged in your
computer to be doing legal work.
True.
Yeah.
And again, these are allegations is it's only in the complaint stage.
We don't know what their response is yet, but it is, it is fascinating, I think, for
that reason.
And it's, you know, fairly close to when we first even learned at the concept of quiet
quitting and this trend of having multiple remote jobs.
And so I think that's what why people are interested.
Sure.
As you know, it's important to keep your voice down when you're inside a library, but it
would be really annoying to talk like this all the time.
So I'm happy to say that even though the APA Journal's Modern Law Library podcast discusses
a new book with its author every episode, it doesn't take place inside a library so
we don't whisper on the show.
Honestly, the idea that would be the modern law library podcast part of the legal talk
network follow along wherever you get your podcasts.
Shh.
Join us on the road from Legal Talk Network for special conference coverage at ABA Tech
Show 2023.
I'm your host Lawrence Coletti, recording live from Tech Show's Expo Hall floor.
We'll be talking about the future of the legal industry with keynote speakers like Cleo's
Jack Newton, Tech innovator jazz Hampton, Legal Tech disruptor Aaron Levine, and of course,
our good friend Kimberly Bennett.
Our pre-show talk with Tech Show's co-chair Gee Sock-A-Lockies is already live and every
day during the conference we'll be releasing new episodes with insider details you'll
want to hear more about.
So just go to LegalTalkNetwork.com and search Tech Show 2023 to hear all the episodes or
listen on the road with your favorite podcasting app.
We'll see you out there on the road at ABA Tech Show 2023.
All right, so let's talk Sidney Powell.
Oh, again?
Yeah, Sidney Powell, who's best known, we referred to her as the Kraken Queen around
here.
She's the one who claimed that she was going to file loss, unleash the Kraken and file
lawsuits that would get Donald Trump reinstated because of a variety of election law claims.
She was wrong about them though.
All of these claims were frivolous and were based on, like in frivolous on the face of
them, like in which gave rise to a bunch of ethics complaints about somebody going around
and filing frivolous lawsuits because you shouldn't do that, especially if you're a lawyer.
She has been sanctioned by various courts in Texas.
The state bar looked into it and determined that, yeah, this is probably a reason to
disbar somebody and filed action to get that done.
It survived the motion to dismiss to the extent that the judge who is Greg Abbott appointee
determined that there was enough, at least in the complaint, to move forward.
But on summary, judgment has now tossed these claims, determined there was just not enough
to suggest that there's any kind of ethical issue citing, quote, numerous defects in the
state bars complaint.
So that's the headline.
Sure.
And when you hear numerous defects, you assume they didn't allege enough facts that they're
just aren't there or they're made up or yeah.
Yeah.
That's what that's what you think.
And so every story about this from mainstream outlets either put in the headline or in the
lead knew this whole dismissed because of numerous defects thing, which does give that
impression.
That is, however, I think probably what the judge wanted when they put the word numerous
defects in here to just distract the mainstream media from looking any further.
So I'm guessing being not quite mainstream.
You dug a little bit deeper.
I did.
I just was interested in what these numerous defects might be.
So I took the step that a lot of people seemingly did not and pulled up the order to see if there
was some explanation.
So it's a summary judgment order kicking a case.
It is three and a half pages long.
That doesn't seem very long for a summary judgment order.
Seems very short.
It seems like the first page almost always says almost nothing because like the whole
caption is there.
That's true.
It's three and a half pages counting the caption.
Yeah.
So it's more.
Yeah.
So it's more three pages.
Yeah.
Yeah.
So if this whole stuff about numerous defects and then in its facts section, it will or it's
section laying out the reasoning, then defects appear to be that a number of the attached
exhibits that were labeled things like exhibit A through F in the briefing itself.
Sure.
The judge found that when she looked at exhibit A, it wasn't it didn't seem to be the thing
that the brief had had claimed was exhibit A.
In fact, like some of them were claimed to be exhibit D, but it was really exhibit F when
she started looking into it.
Which I'm sure is an irritation as a judge.
Yeah.
I think it was you who made this point like and that I included ultimately in the story.
Like this is why you always should have a type A paralegal involved.
Yeah.
For sure.
To make sure these things don't happen.
However, that doesn't seem like a reason to dismiss a very serious set of allegations.
But ultimately what happened is the judge determined that because some of these things
weren't correctly cited and were misnumbered, she would only consider they did have an opportunity
to file a supplement supplementary one, which also had a few problems.
And based on that, she determined that only two of the documents she would even look at.
And of those documents, one of them she describes as not competent evidence at summary judgment.
She does not define why that is, she just says that it's not.
And then the other document is one of the complaints that had been filed, one of the
frivolous complaints that had been filed.
The argument there, she says, is that she could only consider that for the truth of the
fact that it was filed.
She can't opine on whether or not it was frivolous or not.
Which is probably true.
You need to have that complaint in evidence and then you need to have other exhibits showing
that the things in that complaint were false.
But the judge has refused to look at the exhibits that are all the evidence of why those claims
were false.
So she only, she only ultimately considered the fact that a, the fact that the complaint
was filed for the purpose of saying it was filed.
She refused to look at anything suggesting why that would be frivolous.
So she determined it wasn't.
And that's why she kicked it.
Wowzer.
Yeah.
That's not the vindication that you have to imagine Sidney Powell who believes her, her
own story wanted though.
I mean, maybe, maybe not.
I mean, I'm, I'm not altogether sure Powell cares at this point about that.
But, but you do raise an interesting point, which is if you're a judge in a disciplinary
action against an attorney that is going to go on a public record, even if you grant the
summary judgment and let the attorney off the hook, you owe it to the attorney to write
out more detailed summary judgment order because future clients are going to look at
this and say, why is it this attorney I'm thinking of hiring been brought up by the state bar
to be disbarred?
And you're going to want to see something a little bit better than I kind of thought
they, their submission was a little disorganized as a better reason why.
The other side misnumbered exhibits is not really does not fill one with confidence about
the attorney they're about to hire.
Exactly.
Like if you're, if you're saying the person had done nothing wrong, you owe it to them
to give a full reasoning of a detailed reasoning of why it is there aren't claims here, why
there is not a material issue of fact to go forward to use the summary judgment logic
here.
And that's just not there.
The reason there is not a material issue to go forward is she summarily determines that
she's not going to look at most of the evidence and then says, well, that's it.
If you decide not to look at the majority of the evidence that someone submits, it is unlikely
that is going to be a successful submission.
And Powell's book of business at this point probably doesn't depend upon any of this.
Sure.
In fact, it probably is enhanced by the fact that they, that the state bar tried to go
after her.
But that's, you shouldn't, you shouldn't decide your practices as a judge based upon
how wire cases.
Exactly.
This reflects a deeper problem with how they're dealing with cases.
Yeah.
Anyway, it's, it's real, it's real bad.
You know, that's, that's what's up with our, our friend Sidney Powell, who has emailed
us before.
So, you know, before, before getting really off the rails.
Fair enough.
Yeah.
Like in the old days, I, I do remember who we, we, I didn't, but another editor here
wrote a story, a profile of her years ago.
Like she, she used to be kind of in the, in the good graces of folks professionally.
That was true.
That's true.
A lot of folks who kind of got on the Trump wagon and have seen a precipitous decline in
their reputation in across the mainstream, right?
Yeah.
I mean, we didn't always think of Rudy Giuliani as completely out to lunch.
Interesting.
No, you did it.
Listen, you may not have liked him.
You may not have voted for him as New Yorker.
And fine.
But you didn't think of him as the guy who went to the wrong, who, who would deliberately
book a landscaping company thinking it was the four seasons hotel with, you know, fake
hair and eyes streaming down his, this is not the guy you thought of when you thought
of what happened in New York City on 9-11.
Yeah.
No, no, no, I mean, maybe.
Yeah.
I don't know.
Fair point.
I don't know.
Four seasons total landscaping.
I had not.
That was not when you think of the guy who took on the mafia in New York City as a US attorney,
you don't think that that turns into what you now know of Rudy Giuliani.
I guess that's fair.
Anyway, he's, I wonder, does he still have his cameo up?
We should look into that.
I guess we should see if we can get him to do some stuff.
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Go ahead.
I'll wait.
All right, let's talk about Encyclopedias.
Like, Encyclopedias Brown?
I remember those books.
Did you like them when you were a kid?
I did like them when I was a kid.
It seemed like the type.
Where did that come from?
How do I want?
It wasn't a dig.
It seems to me, if you ask, as a child, did Joe Patrice like Encyclopedias Brown?
Yes or no?
I think the safe money's on.
Yes.
I just remember having a conversation with a friend of mine years ago about those books.
Long after they had faded into memory, I brought them up and I was talking about like,
oh, Jan, his friend Sally, and he responded instantly with, Sally was a thug and he had
a very detailed, detailed take on why Sally should not be viewed as the hero.
It's not about Encyclopedias Brown.
Anyway.
But it is true since you were a child.
Folks is in...
That's...
Wait, I don't like how that was frayed.
Don't you though?
Since you were a child, polio has disappeared.
Yeah, what?
You're coming back.
I guess there's that.
No, but since you were a child, the notion of what people think of when they think of
the word encyclopedia has changed dramatically, right?
You used to have...
Physical books.
Maybe your physical books, maybe you kept it in your living room or something like that.
And now most people use Wikipedia.
Yeah.
So as it turns out, Wikipedia has been involved over the last several years in a lawsuit in
an effort to help the whole country's rights against unnecessary or warrantless surveillance.
For whatever reason, I don't really know why Wikipedia is the plaintiff who decided
to bring this of all plaintiffs possible.
But they brought suit in 2015, I believe, trying to argue that the way in which the federal
government surveils people is unconstitutional.
And in particular, it is the way in which the government has taken the stance that they
are able to search anyone's and everyone's internet traffic warrantlessly as part of an
upstreaming effort to see what international communications are happening.
And I assume it wasn't exactly clear to me from a lot of the coverage of this, but that
Wikipedia's argument is that they are looking into who's editing stories and not, even though
they don't have a warrant to be gathering that information.
Really, they just don't want the NSA to be able to tell what happens when you fall down
a Wikipedia rabbit hole.
Yeah.
Like when you accidentally are nine links in, they, and you accidentally have ended up
on Al-Qaeda now.
But I didn't, it made sense at the time.
I was just clicking the next link.
It made sense.
Yeah.
I started it raising roundies.
But yeah.
Anyway, so that was the claim, the interesting element that made this a Supreme Court case,
well, not a case the court had rejected it.
That's the story.
But how this got in front of the Supreme Court is that the federal government responded
to this suit not by defending their practice or anything like that, but by invoking the
state secrets doctrine, which says, just big middle finger.
Yeah.
We can kill any litigation that might be out there.
If pursuing the litigation any further might result in us having to disclose state secrets.
This becomes extra problematic when the state secret it would disclose is in fact the potentially
unconstitutional thing, creating something of a lawlessness zone.
Yeah.
Feedback loopy, really.
Yeah.
Feedback loop is stupid, as you will, where the federal government can do something unconstitutional
and call it a state secret and then never have it be viewed.
So that's not great.
Doesn't sound great.
So this got to the Supreme Court and the Supreme Court denied cert.
And so we, we still are being surveilled at all times.
Widely unsurprised by that.
Yeah.
I mean, the question is who's doing the surveilling?
Because I'm sure there are multiple folks who are surveilling me us as we speak.
Sure.
And like, look, people get upset about big tech corporations doing it, but you know,
at least they're you've kind of opted into that decision.
You've chosen to use.
It chose not to use dah-dah-go.
Right.
Exactly.
You know, like when you choose to use some of these tech products that make their real
money off of data collection, you are, you know, you're saying that that service is worth
it to me.
And you're inviting that.
Yeah.
When the government is looking into suspiciously suspiciously, without suspicion.
Yeah.
That's much better way to say it.
Yeah.
When they're doing warrantless without suspicion searches of all communication and then running
it through their systems to figure out if they should be suspicious of it, that gets
the cart well ahead of the horse and then kills the horse.
It's not good.
No.
Yeah.
And this is an ongoing problem and it's kind of a lingering effect of the warrant error
that like nobody, you know, people granted this state of emergency and then nobody has
nobody.
We haven't unwound any of that.
Of any political stripe seems willing to unwind it because nobody wants to be seen as
the person going backward to when the country ran efficient.
You know, not efficiently when the country ran properly.
Sure.
I mean, part of it is, you know, you don't want to see be seen as supporting terrorists.
So this country is not great at nuance in politics.
So here we are.
Yeah.
I think the nuance point is the key one.
Yeah.
For sure.
I mean, I don't actually think people who are opposed to this are pro terrorist, but
I see how that might be the story at the end of this.
Yeah.
All right.
Well, so is there anything else real quick?
I think that's everything.
That's everything for the last week of February.
Is it?
Yeah, I guess it is.
It's a short month.
February is rough on me.
I like it.
It's only a couple of days, but it's the couple of days that make all of my calculations
for how my month is going off.
I'm like, there's no way it's almost over.
There's plenty of days left.
And then it just really isn't amazing.
In fact, this episode's not even coming out until March.
So technically, sure.
This is your first day of March.
Yes.
Yes.
Absolutely.
It's a purely tactical matter.
All right.
Well, we'll be back next week when I'm sure I'll have a lot to talk about ABA Tech Show,
because of course, legal technology, the most exciting thing for everybody.
Yeah.
Yeah.
Catherine doesn't like legal tech as much as I know.
As much as you do.
I don't think anyone likes legal tech as much as you do.
Oh.
I do.
That's my opinion.
I could guarantee that's not true.
Anyway.
Pepsi challenge.
Yeah.
I mean, I've been screaming into the wind that there are a lot of people who like it
more.
But anyway, with that said, we're coming to the conclusion of this episode.
Thanks, everybody, for tuning in.
You should be subscribed to the show.
You should leave it reviews.
Write thanks.
Give it stars.
I think I've broken Catherine.
She's giggling.
And it's about to come through the radio here, I think.
You should be-
I got my shit together.
Maybe.
You should also be reading above the law so that you can see new stories before they
come out.
We talk about here before we even get to here.
You should be following us on social media at atlblog.
I'm at Joseph Treece.
She's at Catherine 1, the numeral one.
You should be listening to other podcasts.
She's the host of the Jibo.
I'm a guest on the Legal Tech Week journalist roundtable.
We're also-
Other people really like legal tech.
Other people on that also really like legal tech.
You should listen to the other shows by the Legal Talk Network.
And with all that, we will let Catherine off the hook before she bursts out laughing
again.
And be done.
Be strong.
Thank you.
♪♪♪♪