A Riot By Any Other Name…

Episode Notes

Transcript

Joe Patrice:

Well, happy November to everybody. This is Thinking Like A Lawyer where we hear it Above the Law. Get together and talk about the big stories from the week that was in legal. I’m Joe Patrice, your master of ceremonies for this dark staring into the abyss of the legal industry.

Kathryn Rubino:

So we’re going to go with a cheerful note for today.

Joe Patrice:

I mean, whatever. They’re not much cheerful to be talking about, I suppose anyway.

Kathryn Rubino:

Denial is not just a river,

Joe Patrice:

But I’m not in denial.

Kathryn Rubino:

We want you to be in denial.

Joe Patrice:

Oh, want me? Should

Kathryn Rubino:

Lean into it.

Joe Patrice:

That’s not how that usually works.

Kathryn Rubino:

Correct. But we live, as you mentioned in dark times,

Joe Patrice:

So that’s Kathryn Rubino, who is also here. Chris has not really piped up, but Chris Williams is here too.

Chris Williams:

I just like watching Trees Burn. That’s what’s happening here. I’m observing.

Joe Patrice:

Oh, exciting. It’s small talk time, small talk. Yeah. So you were watching, you’re watching Trees Burn. I hit the sound effect before you started that sentence.

Chris Williams:

Oh no. Just to be clear, I was referring to that exchange. That exchange was like watching Trees Burn

Joe Patrice:

Fair. Yeah. Well, I mean, I’ve been in an existentially bad. Everything’s existentially bad feel since I attended the Rule of law conference that we talked about a little bit last week, but I did some more coverage from it and yeah, it still haunts me in ways that Halloween has not.

Chris Williams:

Thank God. I heard you do a chopped up when looking into the Abyss reference. I was like, is Joe reading nietzche wrong? This is supposed to be a hopeful work. It’s just legal tech. You’re actually applying the nihilism correctly. So carry on.

Joe Patrice:

That wasn’t a tech conference. We will get into tech a little bit here though. As we talk about our main stuff,

Chris Williams:

Tech is Joe’s eternal recurrence. It just always comes back to,

Joe Patrice:

No, there we go. Small talk wise. Yeah. How’s everybody doing? I will tell you, as a non-government employee, I was actually impacted by the government shutdown the other day.

Kathryn Rubino:

Interesting. Your snap benefits were eliminated. I don’t know.

Joe Patrice:

No, I met up with folks from law school who have government jobs, who you develop a rhythm with friends over the years where you know that, oh, this is a person who’s going to have a relatively low key. We’ll have a couple of conversations and then move on. But no, they kind of went on a rage. Currently,

Kathryn Rubino:

They don’t have to go to work tomorrow morning.

Joe Patrice:

They don’t have to go to work tomorrow morning. I mean, they had a time to. Yeah. Yeah, so

Kathryn Rubino:

So you were the responsible adult in that situation.

Joe Patrice:

Yeah. That seems wild. Yeah, no, just conversation kept going, kept going, going over everything because we had the time to have a big download, which is good, but also not what I had been planning on, and so therefore I had to take the late train, which that is always a brutal train.

Kathryn Rubino:

There’s probably a joke there or some sort of a setting of the late train. I don’t know. But what time is the late train?

Joe Patrice:

Midnight. So yeah. Where are you going? To Georgia? No,

Kathryn Rubino:

There you go.

Chris Williams:

In the spirit of government layoffs, my Halloween costume completely unrelated, but I will still make the connection. I was a freelancer, but in the historical sense of the word, it comes from people that were basically hired guns in the 18 hundreds. So there were people, there were men with lances, and they didn’t have a lure that they were attached to, so they were literally freelancers. So I was telling people that little tidbit, as I had what it was effectively, it looked like something Shrek would wear, just like a linen shirt, some black pants. And I happened to have these, so they looked like Burkes, but the top of ’em looks like a knight’s shoe. So I

Kathryn Rubino:

Like a clog.

Chris Williams:

So I was a freelancer and that was nice.

Kathryn Rubino:

Oh, that’s good. That’s good. I transitioned this weekend from Halloween to Christmas.

Joe Patrice:

There we go. I can hear Mariah Carey beginning.

Chris Williams:

All I want for Christmas is November the better holiday as an adult is Thanksgiving, which is food Christmas, and I wish there was more cultural appreciation of that.

Kathryn Rubino:

I mean, I love Thanksgiving. This is not an anti Thanksgiving space here. I have a lot of Christmas trees and a lot of stuff that has to get done, so I want to appreciate it for two full months. So

Chris Williams:

You have Christmas trees up in your house in March. It’s not like Christmas trees are a month dependent thing for you.

Kathryn Rubino:

No, I thought for a while I was going to try to do a tree that changed decoration every month for the different holidays throughout the year, but eventually we had to get rid of it. It was not sustainable.

Joe Patrice:

There’s a viral social media post who I don’t remember the original author, but who says that the war on Christmas will continue until it ends. It’s the illegal occupation of November, and I thought of that while we’re conversing here,

Kathryn Rubino:

I would be very happy we should move Christmas to January 25th, I think, because I think that it’s really much sadder in January than, I mean, I get that it’s closer to the Equinox and all that kind of stuff, but really January is the most depressing month. So if we had something fun to look forward to, I think would be w

Joe Patrice:

Congratulations, you invented Eastern Orthodox. We’re going to do all this in January

Chris Williams:

To your point, but further, I just think we need to bring back Saturnalia proper. Yeah, sure. First off, to be frank, it would probably make our supreme leader happy because in Saturnalia, the king, which he is now, will parade down the street. So he’d be like, oh, parade. And they’d probably just highlight the IQ tests from him while it’s going down. It could be

Joe Patrice:

Fun. I think Saturnalia was a holiday during the republic era, which would predate a king. I thought it was just a class, a whole class thing. But I thought it predated the imperium. But that’s neither here nor there.

Chris Williams:

Neither here nor,

Joe Patrice:

But yeah, no, what we’ve just proved though, so

Kathryn Rubino:

The Roman Empire is you’re a Roman empire.

Joe Patrice:

That’s exactly what I was about. That’s the joke I was going to make. What we proved is that Chris also can only think about the Roman empire. And also

Kathryn Rubino:

Did you hear that there was some history exam that 140 students got exempt from because they were taught about the wrong Caesar.

Joe Patrice:

Yeah, I did see that in England, right?

Kathryn Rubino:

Yeah. Wild, wild, wild stuff.

Joe Patrice:

Yeah, it’s a problem. They all kept using the same name over and over again. Huh? I

Chris Williams:

Spent all this time studying and there’s no mention of croutons. There you

Joe Patrice:

Go. We got off of the Halloween conversation, which it was sad. I was prepared to talk about that more. And then we just kind of,

Kathryn Rubino:

What did you have to say about Halloween?

Chris Williams:

And on that note, sorry, we’ve got to get to the reason we’re here, which is to complain about the weak and passing.

Joe Patrice:

Oh, Chris brought the trumpet into existence there. Yeah. So what do we want to talk about after that extended, and I thought pretty fun. We don’t have to end small talk. We don’t have to talk about the horrible things in this world.

Chris Williams:

Okay,

Joe Patrice:

Fine. All right, fine. We will

Chris Williams:

Listen. If you’re going to wear a Kathryn costume, that was the Kathryn statement.

Joe Patrice:

So we have a few stories. One, there are a couple of lawyers. We were talking about lawyers who are out of work because of the government shutdown. The DOJ has not actually laid off a bunch of people over that because they still need to prosecute things. But they did suspend a couple of lawyers out of the DC US attorney’s office because

Kathryn Rubino:

They told the truth.

Joe Patrice:

It’s

Kathryn Rubino:

Not even in a, oh, they dared to say the things that no one else will say. You pull the curtain back from the wizard. This is just like

Joe Patrice:

Facts. So there’s a guy who was convicted of bringing a bunch of illegal guns in a machete to Barack Obama’s house immediately after

Kathryn Rubino:

Not encouraged. We as a society should discourage that sort of behavior.

Joe Patrice:

He went there and filmed himself saying, we got him surrounded. This was in response to Donald Trump putting out on his social media Obama’s current address.

Chris Williams:

That man is still alive. The man that went with the weapons to Obama’s house.

Joe Patrice:

Yes, very much still alive. Well, we’ll get into that. So he does that. He also threatened to blow up a federal building, so he’s being prosecuted for that. He was one of the many people who was involved in January 6th who got a pardon,

Kathryn Rubino:

Obviously

Joe Patrice:

Who got a pardon from Trump. So in his sentencing memo, I don’t know if anybody has written a, is familiar with sentencing memos. These are,

Kathryn Rubino:

Okay. White collar criminal attorney. You are obviously our in-house expert on sentencing memo.

Joe Patrice:

No reason for that attitude. I’m setting up the conversation. That’s what he’s saying. He’s saying I

Chris Williams:

Have reason to be aware, but

Joe Patrice:

Right. Come on. Alright.

Chris Williams:

And Kathryn, just to be clear, Kathryn, just to be clear, don’t ever make me defend Joe again. Yeah, you have one a year.

Joe Patrice:

So with sentencing memo, this is where the government will lay out what they think the sentence is. Obviously the conviction has already happened. Obviously there are guidelines and a range that they don’t necessarily have to follow these days, but so they laid it out and said that he should get 27 months. The argument for that was not only the severity of the crimes of trying to blow up buildings and going outside of form of President’s house with a bunch of illegal weapons, but past criminal history plays into this too. And while he was pardoned for January 6th, he participated in it. And so they said as part of his criminal history, this is a guy, he took part in a riot and now he’s doing this, maybe it should be 27 months. This was signed off upon by the US attorney for DC Judge Janine, who seemed to have no problem with it, probably because it was accurate.

But then the White House got involved according to sources, senior folks at the White House found out that this happened. Immediately suspended those lawyers, kicked them out of their offices, locked them out of their emails, and then resubmitted a new sentencing memo that does not reference the riot. That erases any reference to the fact that the guy went to Obama’s house because Trump had doxed Obama and put out the address. And ultimately it put the judge in a position where the judge sentenced the person to time served, which in fairness was 20, 20 months or something like that because he’s been held that long. So it was kind in that range. Even if the 27 had been imposed, it was only going to be really another seven months or something like that. Because

Kathryn Rubino:

I just want to compare and contrast the reaction to this, to when some person was outside of house,

Joe Patrice:

Not even outside, when some person was several blocks away from Kavanaugh’s house with weapons, and that person got, I believe eight years, is that what they ended up with? And the right wing

Kathryn Rubino:

Completely,

Joe Patrice:

Absolutely melted down over putting somebody in prison for only eight years for the wildly in Coha crime of being in the neighborhood. And that’s because that person said they were wrong, showed contrition, had no criminal history, didn’t partake in a riot to overthrow the government or anything like that. And so therefore, eight years seem to be a

Kathryn Rubino:

Reasonable

Joe Patrice:

Amount of time and eight years is a long time.

Kathryn Rubino:

Here’s the other thing that gets me about this story is the Streisand effect of it all.

Joe Patrice:

If

Kathryn Rubino:

They didn’t fire these people, if they weren’t trying to micromanage the shit out of the Department of Justice, would we even know? It certainly wouldn’t be a story because as we said in small talk, the world is freaking ending out there. This would not even, oh, a rioter got sentenced to 27 months.

Joe Patrice:

Nobody would’ve blinked.

Kathryn Rubino:

It would not even be on page a 27 of a newspaper. He would not be mentioned. There’s too much other shit happening.

Chris Williams:

Well, just to clarify on the points of the discussion. So just don’t understand it. The issue is that a thing that he was pardoned for factored into prior experience? Correct. Sentencing. Okay. That sounds like a legitimate issue. I would imagine that what is a pardon if not a blank, a slate cleaning. Right.

Joe Patrice:

That’s a great point.

Chris Williams:

So I think that that was a good move to make because again, I don’t don’t know the general jurisprudence stance on the weight of a pardon, but for example, I would imagine if a person was for some reason, say convicted of a felony at a federal level, of course, and for that reason they were no longer able to vote and then the president decided to pardon them, I would assume that they’d be able to vote again. The pardon is a slate cleaning in my mind. Is that not the case?

Joe Patrice:

So that’s a great question and it is a disputed one. Generally speaking, people take the stance that if you’re pardoned, you have to acknowledge that you had been convicted and that you had received post-conviction clemency for it, which means that you are still there and it should still factor in. Other people though, think that that shouldn’t be how it works. But generally speaking, the tradition has been that you are still a convict. You, however, have been pardoned your crimes. Not in theory, it’s not given to somebody because they’ve decided that the conviction was wrong. It’s given to somebody in the logic of this person was convicted, did do this thing. But we don’t, I as the president believe that they should not continue to be punished for it is how it’s supposed to be structured. But you’re right now, we are in a position where we’re issuing, for instance, preemptive pardons for people, which Biden had to because he was afraid of the weaponization of the Department of Justice under Trump. Weird. What a weird theory that he had. And so now that we’re in that world, it does raise that question of, is that what we should think of pardons as anymore? Yeah, no, absolutely.

Chris Williams:

But beyond the easy jabs, ha, I do think it is honestly an interesting question. And personally, I would probably have to look into the

Kathryn Rubino:

Let’s not sane wash what happened, right? Because none of the reason why they fired or suspended these DOJ employees has anything to do with the esoteric meaning of what a pardon means. And you know that because it was signed off on initially, right? It is not about that. And also we know it because the parts of the sentencing memo that talked about what Trump did that led to the actions were also scrubbed from the filing. Sure. This

Joe Patrice:

Is

Kathryn Rubino:

Everything to do with the micromanaging of the historical record of what we think of January 6th in a hundred years.

Joe Patrice:

Right. Well, and that gets to I think, Chris’s point, which I think is true that I

Chris Williams:

Think both things can be true though.

Joe Patrice:

Yeah, no, I agree. And I think Chris’s point is true. What does that mean? But also it’s not like the fact that he pardoned those people means that the action didn’t happen for understanding. This gets to a deeper criminal justice question. To what extent does prior criminal history properly weigh into this sort of stuff? You can’t be convicted of something because you’ve done stuff bad stuff before. Crimes are supposed to be treated independently. That said, in sentencing we say, if you’ve already beyond a reasonable doubt committed the second crime, now we look at

Kathryn Rubino:

That

Joe Patrice:

Within a greater context of recidivism and whether or not that changes how we sentenced

Kathryn Rubino:

The standard is different.

Joe Patrice:

And so to that extent, whether or not it’s a slate cleaning the fact that it happened does speak to whether or not you are a person who’s going to commit more crimes in the future. And so it really is a deeper philosophical question. That is interesting. I do think you’re right, Kathryn, that it has nothing to do with that. But Chris is right that there’s a philosophical question here,

Chris Williams:

And this may be a stretch. So the person issuing the pardon, does it become a separation of powers issue if the person operating in an executive function says this thing should no longer be a factor, but the judiciary is like, no, it should still be a factor into determining if prior action factors into how we are regulating this particular behavior at later point.

Joe Patrice:

Interesting. So the pardon power is exclusively executive, but whether or not it should count whether or not pardons race history,

Chris Williams:

Yes, whether or not prior actions factor into future rulings is a judiciary function. But if the pardon is a slate wiping, which is an executive function, the executive should be able to say, you cannot factor in this prior event into future judgments. So that there’s a tension

Joe Patrice:

There. I think this goes back to how the proper way to view them historically was right, that you view it as, yes, you are a convict, but you don’t get punished for that anymore. And then it fits in and then it all works. But yeah, this is question. I will say at that conference I was at the rule of law conference, this wasn’t the subject of a specific panel, but there was definite more than once people referenced taking away the pardon power from the president is a high priority to restoring the rule of law because at this juncture, it is no longer being operated. And one example that somebody made was that, what was it they gave an example of just to show the distance that we’ve come as far as pardons go, now we’re giving them to Binance ass chief because Binance helped create a mean coin for Trump. But 30, 40 years ago, it was something like the president gave a pardon for someone who gave, and the example, I don’t remember, but it was the most mundane of possible crimes. It was like somebody forgot to put a stamp on something and that’s what it used to be for. And here we are. Alright, well we should move on. We’ve been on this for quite some time. We’ll take a break here. Pardon here. Oh,

Kathryn Rubino:

Okay. Full credit.

Joe Patrice:

Alright, well we’re back. Let’s jump ahead to another topic just to kind of break up the conversation about the government a little bit. The billable hour, it’s something that people have been saying is about to die forever, ever. As long as I’ve been involved in the legal industry,

Kathryn Rubino:

But also the stodginess of the legal industry, very much militates towards keeping, if it ain’t broken, we’re going to bill $1,800 for it.

Joe Patrice:

We have an ain’t broke, don’t fix it situation. We have just general laziness.

Chris Williams:

Is it ain’t broke fix or is it broke? We don’t care.

Joe Patrice:

Well, I think it’s ain’t broke. Don’t fix it. Because in my conversation about this, it was occasioned by, well, I’ll get into that in a second. Anyway, I begin in my conversation about this in my article from a specific premise, which is lawyers like to make a lot of money.

Kathryn Rubino:

Yes.

Joe Patrice:

Alright, let’s hold that as a golden rule. Let’s assume that is an inviable value here, proceeding from that value. They like to make a lot of money. The billable hour allows them to make a lot of money in ways that meet ethical rules and so on and so forth. My contention here in this case was occasion by a new report that came out about AI and adoption of AI and concerns that lawyers have over it. One of the things that happens is a lot of people are chattering about this is going to make legal services so much more affordable because they won’t, when it doesn’t take 10 lawyers a month to do something, it takes AI five minutes that all that time is picked up and then clients don’t have to pay for it. And that’s the thing, you can’t charge for time. That didn’t happen under The Un-Billable hour model. Of course,

Kathryn Rubino:

But you don’t need to use the billable hour model.

Joe Patrice:

Yeah, exactly. You don’t have to use the billable hour. You can do something else. And that’s why I think we’ve lived in a world where the billable hour has been,

Chris Williams:

Wait, I just want to roll that back. Is that true? Is there really no fluffing that can happen under the billable hour model? Correct. Ethically correct.

Joe Patrice:

Ethical rules in all jurisdictions would say you can’t start billing for hours. That didn’t happen. So you can’t say, oh,

Kathryn Rubino:

It should have taken me five hours, but I was lickety split.

Joe Patrice:

Now that said, what you can do is you can charge, you can say we aren’t charging by the hour. We charge some sort of specific fixed price for something. You can say, oh, you have a document review that involves X number of documents, we can charge by the document or whatever, and B

Kathryn Rubino:

Or the review will cost $5,000

Joe Patrice:

Or if, whatever, it’s $80,000 or whatever you set it as. And you can set it at that and you can make that be what you assumed the amount of billable hours would’ve been under the normal system. But you have to set a fixed price. And I think there’s lawyers who think have historically clung to the billable hour because oh, what if we’re wrong? And what if we end up wasting a lot more resources than we predicted on this and then we lose money. And that’s true, but the flip side is also true. And that’s where, yeah,

Kathryn Rubino:

I think you’re right that fundamentally the stodginess of the industry was part of it for sure, but we might make less money was the actual reason. And now that they might make less money because of other factors, they’re going to be fast to change.

Joe Patrice:

So as I see it, if AI and put aside whether or not it continues to evolve and do the tasks that people think it can do, but just the tasks that it can accomplish pretty effectively. Now, things like accelerating document review, things like helping

Chris Williams:

Poisoning the environment

Joe Patrice:

Mean not really, not in any big something was like eating one hamburger is like a million queries of ai, so let’s slow our role about where it fits in that it’s still’s still not great. But in the grander scheme of things, we put that in perspective. And remember I have the AI skeptic hat of, I think a lot of this industry is going to explode because I think it’s stupid and it’s a bunch of money that is being wasted on things, but the tasks that it can accomplish very well will reduce a lot of time. There are three things then that a law firm can do. It can either accept that it makes less money and pass savings onto a client. Lowell.

It can change its hourly rates such that it retains its current revenue stream with fewer resources going into it. And remember, this isn’t just hours, it’s also leverage. It’s not just the hours, it’s the people you have doing those hours. Because right now you have 10 associates working around the clock to get that done. If it’s one associate who pushes a button and gets it done in a day, that’s bigger too. So you can up the billable hour such that you’re billing out $10,000 an hour for that associate or something like that to get that money in. Even if that’s the same amount of money. I think that’s something that clients are going to find ridiculous and have a hard time justifying. And so even if it’s the same amount at the end of the month, they’re going to prefer something that is fixed. And I think that’s why I feel like the billable hour for some tasks, some tasks, you can’t get around it. You don’t know how many hours you’re going to be in trial and you’re going to bill for the time you’re in trial. But four tasks, document review, first drafts of motions, stuff like that, that AI can and does currently accelerate. I think you’re going to see a push towards more value-based. Otherwise firms are just giving up money to the clients.

Kathryn Rubino:

And let’s be clear, I don’t think that they’re going to get a ton of pushback from clients because they’re still that fixed amount of money so they can plan their budgets more effectively and supposed to, we guess it’s probably going to cost about whatever they have a fixed amount, it helps them budgetarily. And if there are issues with AI that wind up taking longer than even if you had done it in an analog sort of way, the firm is still on the hook for that. So you’re kind of building in your QC process into that amount of money.

Joe Patrice:

Well, and there’s arguments to be had for, well, you’ve saved all this time, you can get more legal work. And I think that may well be true at a certain segment. There might be small law firms, mid-sized law firms where there’s untapped legal need because of how expensive it is that they could tap and do efficiently and and

Kathryn Rubino:

Doing a volume business just

Joe Patrice:

Get money on volume. That is not the situation at global law firms.

Kathryn Rubino:

Correct. I think that’s fair.

Joe Patrice:

Anybody who’s a client of a global law firm is hiring a law firm because they need a law firm. And so Yeah, agreed. Anyway, that’s why I think the billable hour is in trouble. Alright, well our final topic. Are you a law student who thinks you’re going to do public service, work on the public interest, work on the backend,

Kathryn Rubino:

Prepare to be poor,

Joe Patrice:

Prepare to be poor?

Kathryn Rubino:

And that was always kind of true because there’s just more money available in big law and other sort of non-public interest work. But really the current administration really wants to stick it to you if you want to help the world

Joe Patrice:

Prepare

Chris Williams:

To be poorer.

Joe Patrice:

Poorer.

Kathryn Rubino:

Yeah.

Joe Patrice:

So we’ve already talked about how the administration and the Congress work together on their budget bill to really kneecap some of the access to loans that people have to make it harder for folks to go to law school. The new move is a new rulemaking that the DOE put out over the objections of a lot of folks that redefines how the public service loan forgiveness program operates. This is beyond just legal, but this is the overarching policy that allows folks to do public interest work and get some amount of their loans forgiven. It has been rewritten with a series of vague clauses and words. This was pointed out in the Department of Education says, we have considered this and we don’t think these are vague, but they’re vague and say things like We no longer will consider illegal activity to be eligible for public service loan forgiveness. You might be thinking, obviously illegal activity wouldn’t be covered by that and that would be fair. But the reason why they’re saying illegal activity won’t be covered anymore is explained in some of the commentary that the Department of Education has given around it because they’re also taking the stance that when they say it can’t cover illegal activity, what they mean by that is representing immigrants in asylum hearings. What they mean by that is advocating for transsexual folks.

Chris Williams:

My thing is, and this is to build off what Joe is saying, I saw we shared it on Facebook and somebody commented, oh, this is good. Public service issues should never be partisan or they should be nonpolitical either way. So even at the level of the thing I care more about is the presumption of guilt that if you’re representing somebody in an immigration hearing that you presumed to be guilty. But the thing I think is more insidious is the discursive change where it was like, oh, all this stuff is political. So even if it was fair at that level, you shouldn’t be basically funding biased work. But the thing is, it’s like I’m old enough to where I remember these things used to be couched in liberty interests or doing things because of the rule of law, which to say that they’ve always been political because litigating on behalf of liberty is liberty interest is a political stance, but there was at least some carve out where there were seen as societal values that were nonpartisan and we aren’t seeing that anymore. Where even if somebody’s like, there used to be used to be the hands up, oh, innocent until proven guilty. But now it’s like you’re representing an illegal, you’re representing an alien, which is a change in the narrative of how the work happens and I think is very dangerous for the rule of law.

Joe Patrice:

Well, one of the problems with it is, and that’s fair, but one of the problems with asylum work in particular, and they don’t really limit it just to that they talk about immigrants generally, but Well, the problem with asylum work is, and this is similar to the pardon conversation we were having, the procedural posture in an asylum case is you say, I am admitting I don’t have legal status here. I need you to give it to me because, so just the nature of how that is postured, you have to begin from the premise. I don’t have legal status here, which means the person is already admitting that they are illegal. There is a law that allows them to go through this process, but they’re already set up there, which is as lawyers, we see that and they’re like, right. That’s just how that has to be postured. But bad actors are in a position to do something like this and say, well, you’re representing people who are here illegally and then they take away loan forgiveness.

Kathryn Rubino:

There’s also a difference though, between illegal activities. The actual lawyering for people who have committed crimes, even if it was a crime crime and whatever the actual lawyering for it is not in and of itself illegal.

Joe Patrice:

Right, exactly. And the way they deal with that is they don’t suggest that the lawyer is doing something illegal per se. And they also, part of this also includes a series of crimes. They say if your organization has a history of being involved in various crimes and they’re all crimes that are the sorts of pretextual tickets that get written at protests like vandalism, disrupting peace, whatever. And what the structure of this new rule is to say, if your organization has bunches of people involved in a protest or involved with supporting migrants, then you are involved in a pattern of supporting aiding abetting illegal activity.

Kathryn Rubino:

And the notion that representing criminals regardless is a pattern of aiding and abetting crime is a problem.

Joe Patrice:

Sure. Yeah. Actually, and this goes back to what Chris was saying, and it more so than the immigration one. That one,

Chris Williams:

Yeah. And a little more concretely, as for what Joe is saying, an example will be the ACL U. If you want to work with the ACL U, they’re saying you’re supporting illegal.

Kathryn Rubino:

Yes. You do not get loan forgiveness. It’s very clear now you get loan

Chris Williams:

Potentially.

Joe Patrice:

Yeah. And the A CLU does things that don’t necessarily get into that, so they might be able to skate on this, but I think there’s a lot of organizations that,

Kathryn Rubino:

I mean,

Joe Patrice:

Look, as I understood the wording,

Kathryn Rubino:

It’s not like, oh, 75% of your work is this work, therefore you’re not eligible if your organization is involved in this work in a pattern.

Chris Williams:

Exactly.

Kathryn Rubino:

And I think they’re going to go for those big fish, the ACLUs, because those are the organizations that are the biggest thorns in the side of the administration. So yes, trying to do something where they are not able to recruit as many people. Yeah, I think that that is exactly what they’re getting

Joe Patrice:

At. I think that’s possible. I think there’s some language about, if I recall, I don’t have it in front of me if I recall, I think there’s some substantial language and stuff like that that could limit the ACL U. Random First Amendment work does not necessarily get into this, but you’re right that they do some work that would potentially fall under this. Substantially aside. But there’s definitely smaller organizations that only do this kind of work, that only work with asylum cases that only work with protecting people who are involved in protests. Those are the sorts of organizations that are clearly targeted. By the way this is written

Chris Williams:

And in the spirit of spillover, we are focusing largely on how this will impact public, public service lawyers. But this is bigger than that. So if you have friends who are like, say, becoming actual doctors and are thinking about doing things, I don’t know, doctors Without Borders, and they’re like, oh, you’re helping Gazen, that means you’re helping. I don’t know. It’s a much bigger spread out than just lawyers. And I think that’s important to mention.

Joe Patrice:

Oh yes, no, it is absolutely not just limited lawyers. That’s fair.

Chris Williams:

Yeah. Yeah.

Joe Patrice:

Well, I mean a lot of it is medical doctor, as you said, a lot of the transsexual references have been related to medical. Yeah. Alright, well, we are way over time. Thanks for indulging everybody. We are. You should subscribe to the show to get new episodes when it comes out. Leave reviews, stars, all that. You should be listening to the gibo, the Legal Tech journalist round table. You should be listening to other shows, the Legal Talk Network. You should read Above the Law. Of course, you should be following on social media above law.com over at Blue Sky at ATL blog at the formerly known as Twitter. I am at Joe Patrice Kathryn’s at Kathryn one. Chris is at Writes for Rent and we’ll talk to folks later. Peace.

Continue Reading