Hello, welcome to another, well, yeah, well, there we go.
So thank you.
Let's do another addition of thinking like a lawyer I'm Joe Patrice.
That's Chris Williams.
We're from above the log.
We're here to talk as usual about the big legal stories of the week that was for those
you who are trying to, you know, keep up on the news as it happens.
It, you know, there, there were some, there were some real developments, but first we will
begin as usual by having some personality, you know, showing some personality with this
show by having a little bit of small talk.
Hi, what's your small, what's up with you?
No, I'll let you be personable first.
Okay.
Last week I attended a former host of this show, Ellie Mistal's book, his book is now in
paperback.
So I attended his paperback release party.
Yeah.
Is it plug?
What's it called?
That's a great question.
I'm pretty confident.
I know what it's called, but it's also one of those things.
I'm pretty confident it's a black guy's guide to the constitution, but I want to make
sure that I'm not misquoting it slightly.
So.
Oh, that's actually the black guy's guide to the constitution is the subtitle.
That's the issue.
It's allow me to retort is the official title and then colon a black guy's guide to the
constitution.
So yeah, so that is now out and you can go pick that up.
If you were one of those people who didn't get in hard back at a hardcover and want the
paperback, it's out there.
So yeah, so I attended that, which was fun.
I got home from that and severely twisted my ankle to the point where I had to go to
doctors.
I was fairly confident.
I'd broken it getting off the train.
So yeah, I'm assuming that part wasn't fun.
It was far less fun.
It was excruciatingly painful, but as it turns out, it was no fracture.
So I can walk around with a boot and a crutch to kind of keep me balanced.
And they say it'll get better in a couple weeks.
So.
Yeah.
Yeah.
My weekend wasn't nearly as social, but it was, it was good nonetheless.
I mean, me and Bay had a staycation and decided to like, we moved the bed to the living room
and camped in the living room.
We finished, what was this show?
It was a show called Call Me Can't Communicate, which is an adorable show.
It's about this girl that has social and extreme social anxiety.
And it's like a real nice cool like brain dead feel a good show.
It's like, it's nice and watched a couple episodes of Breaking Bad, just you know, balance
out the media consumption.
You know, we're on season three.
So for those of you that are familiar, Gus is in the part.
Gus isn't Gus yet, you know.
So he's still the guy that's, you know, at the chicken shop, but he's not the guy at
the chicken shop.
But that's right.
That's later in the part.
But it's amazing.
It's amazing.
Fair enough.
Well, okay.
So with all of that, our, we've talked about our lives.
We seem like human beings.
So like we seem relatable to the audience.
And so with that done, we can talk about law ending our small talk.
So yeah.
So the, I guess the biggest news of last week was the, you know, Trump arrangement on
federal charges.
So we have that, that, uh, now looming over everything, uh, the, is there a week or
that wouldn't have been the biggest thing in the news?
Yeah.
Uh, it's, right.
Well, so the, the arrangements already had happened, but we have more, um, or the indictment
had already happened.
The arrangement we go through, uh, we learned a couple of things.
One was that Trump doesn't have any real lawyers for him anymore and is struggling to find
anyone willing to represent him in Florida.
Uh, he still has this former solicitor general, uh, making appearances for him though, uh,
Chris Keis has made, made statements suggesting that he doesn't want to be the actual lawyer
long term, but he's willing to enter appearances right now.
Uh, it's, it's a real question if they can find a local council willing to take this
on, uh, given that he has, you know, made something of, uh, something of, uh, pattern of not
paying people and apparently that catches up with you eventually.
Hmm.
I mean, it does gotta be at least some big law, bro.
That's like, nah, I'll represent our president pro bono.
No.
Well, I can't see any big law person doing it because big law people care a whole hell
of a lot more about getting paid than they do about representing whatever.
I can see some up and come or ambulance chaser sort of person, uh, which sounds derogatory
and was meant for this particular instance.
Uh, I support personal injury lawyers generally, but you know what I mean when I say this, uh,
somebody who is trying to make a name for themselves more than caring about whether
or not they get paid here, sure, but it's hard to believe there's many of those folks
out there at this point, especially considering there's, this is not a particularly great
case for these folks.
As we discussed when we talked about the indictment over the last couple of weeks, it's pretty
cut and dry.
Uh, there's some arguments to be made, I suppose, that the attorney notes were improperly included
and should be excluded from the jury and so on, which would make it seem less like a
conspiracy, but you know, a lot of these charges are pretty strict by ability.
I mean, you have can classify documents that you aren't supposed to have.
You warranted to the government that you did not have them anymore when you did.
I mean, those are crimes straight out of the gate, which makes it a lot harder to make
a real defense.
Uh, maybe you could cut back some of the charges, but the, but like, and we talked about
this, uh, I don't know if we talked about this on the podcast or whether it was just
in an article, but the just security did a sentencing guidelines breakdown, which obviously
the guidelines are not mandatory anymore, but guidelines for these particular charges,
even getting rid of the ones that are based largely on attorney notes that got in through
the crime products that arguably are in through the crime fraud exception.
Some of these other stat of violations straight up are 20 year sorts of sorts of crimes, uh,
which for a guy, Trump's age, 20 years is pretty brutal.
Uh, so anyway, he's having a hard time finding his lawyers was one big story.
The related story to it was of course that he made some comments and we're not a visual
medium. So you can't quite see me rubbing my head here, but he made some comments about
how it's applied.
Yeah, he's willing to plead guilty if the DOJ will agree to pay him damages for having
put him through this.
That is an interesting claim.
Yeah.
Also for anybody that's seen breaking bad, that just immediately reminded me of a season
two, this guy's themes, uh, James Kilkenny, he like goes to prison for pay, so it's, you
know?
Yeah, but, but usually the government isn't the one doing the paying, uh, the government
isn't really in a practice of paying you to agree that you committed crimes.
Uh, they're in the business of saying you committed crimes and then you paying them to get
out of it.
Uh, sometimes it's not a prison work.
Yeah.
Sometimes it may be a prison, you know, yeah, you can theoretically, not in federal, but
you can theoretically pay, have governments pay the prisons, not really relevant to this
conversation, though, because it's about, he says that he's willing to do it if they'll
pay damages.
I, but what, the reason I think these are related is it, it's indicative of not having access
to good legal counsel that you might go out and say something like this, right?
I mean, any actual lawyer would tell him, no, no, that's not, that's not how this works.
Even non lawyers, like, I don't know, like, yeah, like I, I, I haven't really asked many
people to work at Wendy's or legal opinions, but I would imagine a person working to frost
a machine and be like, hey, this, this doesn't make sense.
Well, you, what one would help unless it has civic education gone so bad in this country
that even, even regular folks don't understand that the government doesn't pay you to plead guilty.
Uh, you, the, the other part of this paid a plead guilty thing is it, that's not even
necessarily the stupidest thing Trump's saying out loud.
Jonathan Turley, who is kind of on the hilarious, oh, so
Turley, George Washington law professor is he, he's on a constant drive to get attention
from right wing media.
He doesn't really have any seemingly any consistency to his thoughts other than what
might get him attention at a given moment when the indictment, he was talking about how
the indictment was all going to be made up and it's a fake case and whatever.
And then he, when he saw the indictment, he actually came clean on TV and said, actually,
this is very damning and very serious.
Apparently, since then, he has received the message that that wasn't what would get
him invited back on TV.
So he has over the course of the following several days written more and more stories
saying, this is all politically motivated.
This isn't real yada yada because he's nothing if not consistent in the fact that he wants
to be on TV.
So with all of that, he did, however, have a moment of clarity, which I assume will soon
be walked back pointing out that Trump didn't interview with with the right wing journalism
where he started making statements about, oh, I didn't know that there were classified
documents there, which, you know, he's on tape saying that here's a classified document
that I didn't declassify.
So he's making public statements now that seem to suggest that he was lying in these past
audio tapes.
Now that's going to, that's all going to be admissible at the point that you've been
indicted when you go out in public and say things.
That is all now fair game to be used against you.
It almost seems like this is another moment of the why, why it's important to have a lawyer,
right?
He's just shut your mouth.
Yeah.
I saw one theory and I don't necessarily ascribe to this one because I don't think that
there's much, much reason.
I mean, there might be a reason to have him surrender his passport, but there's not much
reason to incarcerate Trump.
It's not like these are crimes that other than the risk of international flight, there's
not much risk that he's going to like continue to cause problems.
Now that the government has these documents, Yada Yada, and I'm generally against pretrial
incarceration, unless it's a clear and present threat to public safety going forward.
That said, they didn't put any kind of house arrest or gag orders on him and that kind
of seems almost like that was calculated, even though they, as a moral matter probably
shouldn't have.
It also seems like the DOJ might have made the litigation tactical decision to not do
that.
More or less banking on the idea that Trump is going to say things in public that will bolster
their arguments down the road because, you know, you don't want to, if you have any concerns,
you're not going to get M. Corcoran's notes in, don't worry, just put them in the indictment
and let Trump go on TV and talk about them.
That's going to get there.
That's a way around all of these issues.
This is something that a real lawyer would be able to tell him not to do, but so far he
can't do that.
Years and years of stiffing lawyers has finally come back to haunt him.
It seems.
Funny how that happens.
Yeah.
Yeah.
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All right.
We're back and talking about one of our least favorite subjects.
Layoffs.
Don't talk about layoffs.
You kidding me?
Layoffs.
Talking layoffs.
We had a few more last week.
The first one to talk about is Orek, Orek announced that we're going to cut, I believe
6% of the global workforce divided between attorneys and staff, that news came out
and soon after we heard from Reed Smith making some cutbacks.
What was that?
You wrote that story.
How much was that?
Was that five?
I think it was like, I want to say two.
Wasn't that much.
It was about, okay.
It came out to be about 30 attorneys, but it was, okay.
So the smaller number.
Right.
So then we had Reed Smith.
This, of course, supercharged fears about more layoffs to come.
What do we think about the layoff situation?
Any takeaways from these moves?
What are we thinking?
The my takeaway is I saw that the Orek deferred their associates to January and only gave
them a 15K stipend.
What happened to 6 figs?
Well, that's a good point.
But that Cooley 6-figure stipend was for people willing to defer until January 2025.
Gotcha.
Yeah.
So that was actually interesting.
And that's worth talking about again, because put aside the distinction here, it does seem
like Orek didn't offer the push clear to 2025.
Cooley was suggesting that people in certain practice areas, if you were willing to take
a new practice area, they were deferring you until January 20, 24.
But if you were hell bent on the practice areas that they currently seem to think they
have no room for, then they would give you 6 figures to wait till 2025.
Orek not doing that seems to suggest that they think there will be a market back earlier
these folks, because they'll be able to fit them into billable work by January of 2024,
at least at this point, that seems to be what they're thinking.
It's interesting.
I actually made a tweet right before the read Smith news came out after Orek and right
before read Smith, because we internally hear it above the law have been having some conversations
about like what does this mean?
You see a lot of the other legal press talking about more layoffs, another layoff like this
is a trend, yada yada, meanwhile, it's hard to tell, there's between points and an actual
trend.
Yeah, well, yeah.
So that's the issue is what is, what does this really say?
And even though there are layoffs happening at all sorts of places, it seems that the only
connective thread between all the layoffs is the core Cooley, Orek, Wilson, like did Wilson
or it was Gunterson, I can't remember one of those firms that are all West Coast based
have a while that while several of them have a global full service law firm warping, you
know, outlook, they have core tech sector clientele, those firms are all having this issue,
which suggests to me that there is a spillover of the tech sector problems in the economy
writ large.
They're impacting those firms, meanwhile, firms like Goodwin, Reed Smith, I'm struggling
to see what the connective tissue is, which makes me wonder, and this is the real question,
are these firms indicative of a law for legal industry wide pending layoffs or are they outliers,
whereas the other firms in the tech sector are their own thing, meaning we have a bunch
of layoffs, but only some of them have a connective tissue that makes them all one issue,
whereas the others are just general outliers that are taking advantage of, hey, you can
fire people right now and people won't blame you.
Do you think there is any fault with, say, somebody confusing market coincidence since
we're market trends?
Do you think that other firms will end up copying?
Yeah, I do think that, and I also think, I think there's something to be said for law
firms don't like, no company likes, but law firms in particular don't like looking like
they've screwed up, right?
And they also don't like looking like they're reactive to things.
The law firms, by their nature, lawyers like to look like they are solid as a rock, right?
I mean, it seems like they want to show that they are risk averse and so on.
And so nobody wants to, even when law firms have financial problems, they don't like laying
folks off.
It's why during the Great Recession, for instance, the layoffs that we saw in law firms tended
to be lagging the rest of the economy.
They would come several months afterwards because they would really hope to not do them,
because they would take a loss in order to look stable.
We're seeing with this with the non-tech firms, the more non-heavy in tech firms, I should
say.
We're seeing firms willing to say, oh, you know, the market's trouble, so we're getting
rid of folks.
And I feel as though more than the idea that there's some real pressure on firms to do that,
I feel like they're trying more taking advantage of the fact that there's a media and pushed
somewhat by the Federal Reserve and so on.
There's an effort to say that a recession is coming, which the numbers don't seem to
suggest it is, but given that that's out there, it seems like they're taking advantage
of it.
Some firms are willing to say, oh, look, a lot of people believe there's a recession coming,
so we're going to use this as an opportunity to make some cuts that we otherwise wouldn't
because we don't really have a huge financial need to do it, but people aren't going to blame
us because it's going to seem like we're reacting to a recession.
Recessions happen everywhere, like we're all going to have to do this.
And I think they're banking on the idea that other firms are going to do the same thing,
given that they aren't necessarily, unless a real recession starts to hit, you start feeling
like they're going to be holding the bag and look like firms that overreacted, look
like firms who were arguably stretched financially so thin that they couldn't deal with a small
slowdown in Q1, spilling into Q2, that they had to react before Q3 and 4.
I saw what's posthuring.
If it is posturing, I'm not really seeing the benefit of being the first mover.
Yeah.
And that's the thing.
The idea is that you really are playing on the market, but you know, yeah, well, if you
get the market as shitty, you would want to present yourself as if despite the market
being how it is, we are, you know, stalwart, whatever, whatever like, full works, you know?
Yeah, exactly.
Like the, the idea is that you probably do have 30 lawyers, too many in certain practice
areas.
Like M&A has been slow for a couple quarters, so you have these people you're paying
high salaries to, and you're taking something of a loss on them.
Now, query loss, it just means that the partners are making $2 million a year instead of $3
million a year, or probably even less, rather than 2.5.
Anyway, whatever, you've got some people who are arguably dead weight.
That is true.
And if you think that you're that's going to continue for another quarter or two, you
might get rid of them and just say, then we'll get the first years in and they'll pick
up that slack.
And we don't need to worry about this.
That is, is really happening.
There is over staffing in certain practice areas.
The question is, and this goes to your point about being a first mover.
I think some of these firms want to get that ball rolling and hope people are going to follow
them.
So it looks like, hey, everybody in the industry had to react to a session.
And so far, I think outside of the tech-related firms, it's few and far between.
And yeah, there are several of them, like Goodwin, Deckard, Marie Smith, whatever.
But they are more few and far between.
They are more staff-related than attorney-based in a lot of these cases.
I don't necessarily think they're cause for alarm yet, as far as industry-wide cause
for alarm.
We'll see.
But if M&A starts picking up in the second half of this year, those firms are going to
move on and some of the firms that didn't do any cuts are going to take advantage of
that.
It's still a situation in flux.
I just, I don't know.
I still feel reasonably confident that this is more of a tech hangover than a general economy
hangover.
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Go ahead, I'll wait.
Okay, we're back and let's talk.
So you did a write up of a decision, an interesting decision, because it kind of moved the law,
and expanded the law in a little bit of new direction out of Massachusetts.
Yeah, so there was a guy in Massachusetts, a guy named Anthony Dew, who was assigned
a counsel, a guy named Richard Doyle, and he ended up taking a plea bargain service from
time.
None of that is exceptionally interesting, but what happened was he after that, he realized
that Richard Doyle, his attorney, was a bit of a major bigot, you know, just run of
the mill, I hate blacks, I hate Muslims, I hate black Muslims, and then after you see
stuff like that on his Facebook, which was, you know, public for going to see the wheels
begin to spin.
I mean, there were, I mean, there were moments during the trial where I say, so he wore the
mushroom of the name for the religious hat that Muslims wear, but the goofy, he had a
goofy on, and his turn, he was like, why are you wearing that shit sort of thing, which
is like, ugh, when he was wrong with you, like that's a reason to say, but if I necessarily
show Richard prejudice in the process of representing someone, I don't know, but what
was interesting about this decision was that the Supreme, that the court decided that the
fact that this guy was a racist was sufficient to win in the insufficient, what is it, the
IAC assistance council, yeah, yeah, assistance council.
And I just think that was a, I think it's a cool outcome, but I'm wondering what the lines
are like.
Yeah, because one thing from your post that I thought was interesting was that, so historically,
ineffective assistance required showing in the, in the kind of general sense, it usually
requires showing that the lawyer did something specific wrong in your case, but they didn't
necessarily have evidence that the guilty plea was necessarily that normal, yeah, right,
but they extended it to this guy is so bad that like, so racist that we have to jump in
and say, it, it per say, have to have been ineffective, right, and I think that's interesting
because it could have been the case that like, and the example, like, you know, there's
this judge, I think, wow, at this point, it feels like it was damn new two years ago, but
there's this judge who started slurring some dude because apparently, because of some,
some drugs she took, Michelle, hold on that, hopefully I'm saying her name correctly.
And she ended up going like, so I use that as an example, like what is she end up going
to do, you know, defense work? And she, she argues phenomenally, you know, get some,
like, does some equivalent of somebody being charged with having 37, you know, government
documents, they shouldn't have and get some like two months, like amazing, loyering, if
there, if her history is like, hey, you're racist, like does that invalidate what happens
now, you know, I mean, I guess, I guess the hope is that it can only work in favor of
the defendant, because they'd be the one who doesn't, but, but, I mean, this is a good
point. Like, also, there are a lot of lawyers who do that kind of criminal defense work,
who, you know, he probably would say, yeah, my defendant's guilty, yeah, my defendant,
like, hangs out with put aside racism, hangs out with people, people who do bad things,
like whether it's, you know, you can do that in a racist manner, you can also do that
with mob folks in certain areas of New York, like, it can be a more broad statement.
Some criminal defense lawyers know those communities and know that, oh, they hang out
there, they get referrals because of that sort of thing, is having that opinion, does
that carry over to, then you were ineffective or are you a zealous advocate for them, despite
thinking that they probably did in real life do it. We do have lawyers, I mean, with several
years ago, we did, we covered a criminal defense lawyer who was openly advertising on my clients
are all guilty, but I can get them off. And like, at that point, are you conveying even
it, obviously, racial and religious discrimination being the motivation is the problem here, but
this is one of those things where, like, the facts in this specific case, like they form
a general rule that is going to be applied generally, you think about some of the texts
that Doyle sent that have become, or comments on Facebook that become the issue here, can
somebody in the future say, you know, my lawyer said that every, you know, all of my friends
are guilty and whatever. And he was just trying to get, trying to get us off for the money
and whatever. But if, if that person is, like, a, is something of a, a real committed to
the legal concept that everyone deserves a lawyer, and even if I think you're guilty, I'm
going to get you the best deal. Does that, is that possible? Like, are there going to be
situations that walk a line where somebody can say that, like Doyle was clearly off the charts,
right? Like, we don't have to go into specifics of some of his comments, but like, if you read
the compilations, and you don't need to read anything. Yeah. Well, I mean, you put the
link in there. Folks want to read the whole opinion you can. This guy is clearly off the scale,
but you're right. When you said, like, like you just said, like where you draw the line, I do
wonder there are criminal defense lawyers who will say things like, yeah, I know my people
are guilty that I'm representing. And some of those comments are, you know, budding up against
some of the things that this guy said, and are they going to use this opinion to get around
that? Like, it's, it was an interesting decision, because it does open the door in ways that
we hadn't had before, because we definitely used to, historically, you try to tie it to this
person should have gotten a year and they grin in for five, because the lawyer didn't care.
And this very much kind of took the stance that they don't need to prove that anymore.
Right. Or at least in, at least in this state. Yeah. Exactly. But it's interesting because,
and I'm not necessarily saying that that's wrong, right? Because the flip side of it is requiring
that set a super high standard of proving some sort of, you know, counterfactual, right?
Like, especially in plea deals, how do you say, oh, you could have gotten a better deal? You
don't necessarily know. Like the prosecutor is not going to say, oh, I was considering something
better. Like, it, it's that non-realistic standard that allowed for ineffective assistance
to never be checked. So yeah, it, I think this is a really fascinating case that you've found
that like, gets, gets into a whole bunch of issues as to how we deal with criminal defense
going forward. Yeah. I don't know how much of this would be a good
lowering or courting the, the, the bar to hit you, but it'll be like, hey, it's some
just mad at somebody being like, I hate blacks. And I get amazing plea deals. And then if,
and if the plea deal goes great, phenomenal, if it goes wrong, hey, my lawyers racist.
Yeah, I, I, you might have some bar issues with that, but, but as a, but as a, a criminal
batter, like, yeah, that's a good question. That's a good question. Yeah, like, hey, if you walk
out, if you walk out to being an ax murderer and this kid's daycare, tell all your friends
you're representing, but if you, you know, serve life or whatever, you know, here on my Facebook
posts. Yeah. It really interesting. I feel like this is an opinion that could give rise
to law review articles and stuff, because I, I, I think it's an interesting policy question
how we deal with ineffective assistance. And this, there, there, there are threads to untangle
here, really interesting. All right. Well, I guess we've gone on. And so we should probably
close up for the week. Thanks everyone for listening. You should subscribe to the show,
get new episodes when they come out. You should leave reviews, stars, write something,
all of that helps. You should be reading above the law every week so that you read these
and more stories before we talk about them. You should be following us on social media.
The publication is at ATL blog on Twitter. It also has a Facebook page. Chris is at
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both of us on Twitter there. We as in Joseph, like, like biblical as in Joseph. Yeah. And then
I'm at Joe Patrice on blue sky for whatever that's worth. And not that I've been, I've been doing
a really bad job of that. And I really need to do that. Other people there. There are a lot of
people right now are doing, they're doing Twitter and then copy pasting that tweet and putting it
on blue sky, which I should do. I just did, it's, it's an extra step that slows me down and I
shouldn't do, you know, but I should do better. Then you should be listening to the Jibbo,
Catherine's, our usual co-host podcast. You should listen to the other offerings of the legal
talk network. I'm also on the legal tech week journalist's round table. And yeah, that should
cover everything. We will talk to you all next week. Peace.
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