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

0:11Welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleagues Catherine Rubino and Chris Williams. We're here to talk about the big stories from the big stories of thinking.

0:30Okay. So a little bit of small talk to stave off the allegations that we're AI bots, like everything else in the world is. I wonder how often we get those allegations. Perhaps you. I think Catherine has like a budding social life, and I'm watching a bunch of anime. So I'm a human. I check off the capture every time. That's true. We're doing kind of, that's what small talk is. It's like an audio capture. for us. I don't think you get what I'm saying, Joe, but okay. Yeah. No, it is. It's like we're proving humanity here. Gotcha. Proof of life. Yeah, which legal is, you know, last week was, of course, a big week in legal AI because it was the Claude Pocalypse.

1:17And you immediately start talking about AI. Yeah. Well, I mean, it is the most important thing that's actually happening in our industry uh the claude apocalypse happened where claude now connects to basically everything is it apocalypse or are we concerned about this this yeah i mean that's a great question i mean they dropped all of the announcements it wasn't just like oh you know here's a partnership with one company and here's one with another it was uh it was all of them all at once like 30 connections like dropped a kind of a shock and clawed approach. Okay, okay. And I know factually you must have been working on these for more than just now.

1:57These are not things that you came up with about a second ago. That particular joke, I did come up with instantaneously, but I came up with it instantaneously on the other show that I am on where I'm a panelist on the Legal Tech Week Journalist Roundtable. But I was plagiarizing myself here. in actual person life i did a 5k for the weekend oh okay which seems more impressive than walk three miles which is which i've done before um right but yeah this one was with the uh philly bar and um it was there was a point i was like that person looks like they can issue spot and i was like wait i'm at a lawyer thing so yeah so it was nice i think it was to raise money to fight ovarian cancer.

2:43Nice. FU to cancer generally, but specifically ovarian this weekend. And it was nice. There were good snacks. There was no Lexus Nexus merch, but there were granola bars, and that's nice. Cool. Well, with that, we should get into the meat of our conversation. What do we have to talk about. Meaty. Meaty, yeah. I don't think there's anything meat-like about this. We have more to talk about with the insider trading case. You know, we've touched on this before, but there's a massive insider trading scandal going on with a ring got broken up because of a whistleblower coming forward. It involved big law, you know.

3:31I mean, that's really, I think one of the most interesting parts about this. So there was a circle of insiders, mostly at large law firms, as well as sort of their extended network of folks, folks that they met through colleges, law schools, other sort of professional connections, and made over the course of a decade, bunches and bunches of money. But there was another, we knew that Wachtel, Somebody at Wachtel was formerly at Wachtel was involved, but that person was identified based on some of their biographical information that was included in the original filing, although their name was not formally revealed.

4:13But Avi Sutton, who interestingly had appeared in the pages of Above the Law previously way back in like 2013. Oh, wow. A different era entirely for ATL. But during the Legal Eagle wedding watch that used to be a feature at ATL, his wedding was one of the ones featured back then. That was a feature that like, you know, that was a columnist did that for us. and none of the full-time folks ever were really on top of it. But that's a feature that really was classic ATL, just scouring the wedding announcements. It was also very early blog feeling, right? Like back in the gawker, stalker kind of era.

4:57Right, hold on, Chris has a question here. Yeah, well, it wasn't exactly people that weren't here for the last 30 years. Yeah, that was what I figured it was going to be. It was a look at the New York Times wedding announcements and anyone that was a lawyer would get featured. in there. And it would kind of compare them and have folks vote on the legal wedding of the week or month or whatever it was. If you've ever read the New York Times wedding announcements, there were some embarrassing things in there that were ripe for people to mock. Sure. This would have been back when the common sexual was stolen, right?

5:31Yeah. Correct. Yeah. Oh, that sounds like it would have been great. It was a moment in time that has still since passed. But what I think is really interesting, and this particular individual, it was not at Wachtell at the time that the indictment came out. He had moved on to a niche financial iBank sort of situation and no longer on their website, pulled off pretty quickly after the indictment dropped. But, you know, this person has not been indicted. So, yeah, take that for what it's worth. What I think is interesting is so many big law firms are implicated by this. Now, as indicated by the indictments, these are victim law firms.

6:15The law firms are being characterized as the victim. But it really has to make you think what else needs to be done in terms of security to make sure that your firm is not in the news in the future, that people at your firm have committed or accused of insider trading. I mean, obviously, you know, there are professional oaths and obligations and the fact that it's a crime and all that that kind of theoretically keep people from doing this. But, you know, you probably want to do you want to be a little bit more aggressive, probably about policing it. And there are a lot of firms that are probably taking a good look about who has access to which documents.

6:59Well, yeah, and we talked about this in the past that we had that years ago, even the exchanges all claimed that they were able to suss out even if you were engaged in this sort of second order trading where like you didn't take the information, but you gave it to somebody, you know, two or three degrees removed from yourself to in order to make it work. And they said they were able to catch that back then. Clearly, clearly untrue. One would think this is one of the tasks to bring up a subject that is unavoidable these days. This is what you would think AI would be good for to monitor trades and where information is and spot irregularities because that's the thing with insider trading.

7:44No one really gets rich insider trading by making small, reasonable trades, right? Like it's always something that jumps out. Well, yes, and that's certainly true. But for a network that operated for a decade, you don't have to be kind of above the fold levels of big, splashy things. You're doing it constantly. But the other thing, which you're talking about AI and the exchanges, no, et cetera. But firms have access to and can keep track of who looks at certain documents. When you open a document, if you're on a deal, it's one thing. But if you're not on a deal, that should go on some list where some firm is looking up and saying, hey, is this something we need to be aware of?

8:32Oh, why? Ask. Oh, why did you open up that document? Oh, I was looking for a sample for this. Okay, great. All the major DMSs have those sorts of protections, and a lot of them even have protections that prevent deals from being looked at until they are public, except by the people on the team. So you can't utilize it to find a model when it's still in the process. I think one of the deals that was involved in this scheme, somebody was on a leave of absence from the firm and logged in, found out certain deal information, and then someone in the network wound up buying stock in the deal case. Yeah.

9:12I mean, it was pretty extensive. So yeah, so it's continued, but this is going to be a story for a while. We're going to get increasing follow-up. There's still plenty of people who are unnamed in the scheme. And, you know, when people are starting to suss out who folks are, that's obviously something above the law as well as mainstream media as well, because it's so large, is definitely covering. And as it kind of winds through the criminal justice system, I'm sure there'll be more to say. The thing that gets me is the greed. Like, I can't imagine making$200 ,000,$300 ,000 a year and still be like, this isn't enough.

9:48Seriously. I mean, I will say that those early years where you're making two, obviously this went on for a really long time, but those early years of making that kind of money, the chunk being taken out by the student loans makes that money seem like it's not a lot very early on. But no, like, what was it? Recently, Speaker Johnson was like, hey, you know, we have to do insider trading. We only make$170 ,000 just my year. Like, this is just that. Yeah. I don't, I don't, I think. And most of them are millionaires on top of that. Yeah. Yeah. You're not talking about big law associates, but. Correct.

10:24No, but the Congress. Yeah. Well, yeah, no. I mean, the Congress side of things, I did see that Representative Jack Kimball, which is not a real representative, but a brilliant parody account, had one of his finer outings talking about that and got all sorts of people who really should know better yelling at him over his demands for more money. I think the wording was that tweet should have been ran by the – we only make$170 ,000 a year. Tweet should have been ran by PR. We don't care about Puerto Rico. I don't care about Puerto Rico. Yeah. It's so good. All right. Well, I'm so glad that someone else saw that exact exchange.

11:07All right. Well, let's take a break, and we'll be right back.

11:14You like legal podcasts because you're curious and want to be the best attorney you can be. I'm Dave Scriven-Young, host of Litigation Radio, produced by ABA's litigation section with Legal Talk Network. Searching your favorite podcast player for Litigation Radio to join me and my guests as we examine hot topics in litigation and topics that will help you to develop your litigation skills and build your practice. I hope you'll check out Litigation Radio and join the ABA litigation section for access to all of the resources, relationships, and referrals you need to thrive as a litigator.

11:51Imagine getting a free marketing consultation or workshop for your law firm every month without ever booking a meeting or paying it done. Sounds too good to be true, right? They don't have to imagine it, Conrad, because they can actually experience it. Our podcast, Lunch Hour Legal Marketing, which you can watch right now on YouTube, has dozens of episodes explaining how to update your Google business profile, what kinds of campaigns are working for lawyers, and what SEO strategies you should implement. And that's just scratching the surface. Now, there are a lot of people out there who think they know the ins and outs of SEO, social media, and paid marketing.

12:26But in reality, they're just greedy or grifters or faking it most of the time. As agency owners, my co-host Guy and I know what we're talking about and would love for you to be part of our growing community. Check out our library of episodes and subscribe to the Lunch Hour Legal Marketing YouTube channel or wherever podcasts are found.

12:47Okay, so the next thing that I think we should probably talk about is we had another brief in the ballroom case. I know, Catherine, you've been following this. I've been following, you've been following the ballroom case generally. I've been following the back and forth of these this current motion. Yeah, I think that if you were to kind of break down our division of labor on this pretty large issue is that I kind of have been tracking Judge Leon's increasingly frustrated and agitated responses to what's going on. Whereas you've been covering kind of the brief craft of it all. Yeah. You know, it's it's interesting because this whole case is basically a legal writing classes nightmare.

13:27Right. So if you're if you're a 1L taking legal writing, this case is a nightmare because Judge Leon has never met an exclamation point that he doesn't want to make. Listen, he knows what he thinks. Yeah. And what's happening in the rest of the case is that even though a brief, which is not signed by the actual lawyers who are doing most of the case, the actual career prosecutors involved in most of the case are not, I mean, civil side, but the career DOJ lawyers who are doing most of the case are not signing off on these. They're being signed by Blanche and Woodward and McCotter. They are submitting briefs demanding that the case be dismissed.

14:10How shall we put this? They do not read like people who have law degrees wrote them. Or edited it even. Or even bothered to edit. They do not read like people who write wrote them. Yes. They do read like one person wrote them, probably on Truth Social, and it got formatted with a caption. The concern here, though, so they put in this first brief that is riddled with wrong capitalizations and incoherent claims, and it really does read like one of the Truth Social posts, which - It's literally like, what if Truth Social didn't have a character limit? Yeah, exactly. It's being signed by lawyers, and what we wrote about at the time is this is the problem.

14:59You have an obligation not to let your client dictate things. Run into a buzzsaw. But it's also harder to work on that obligation when the Supreme Court says that your client can do whatever the f*** he wants with no consequence. Well, I mean, and I point this out in both my articles about this subject. It is also worth noting that he is not, in fact, the client. The client should be the United States government, not the current occupant of the White House. But that aside. If Trump had a pithy I am the state, he would say it. Yeah. But so it's riddled with errors. The first one was the response brief came back, which was very straightforward.

15:40Four pages of you got to be kidding me with this. And then that's where I kind of thought the reply brief would do cleanup. Basically, they'd sandbag everything to the reply brief and it would be written professionally. That turned out not to be the case. it doubled down on the kind of incoherent rambling. And this gets to, and we've talked about how I think that the long term, the only real accountability for lawyers involved with this administration is in disciplinary action after the fact, disbarment, sanction, whatever. This is some Rule 11-y stuff, right? You can't, as a lawyer, say, hands off, I'm letting my client write this and then I'm going to sign it without checking.

16:27That's a problem. And I don't know as though there's – like this comes close to – it doesn't make any fraudulent claims. It is a frivolous motion, but they quote thus the rule. So I guess it's not probably across the line of real frivolity. But if this is the standard operating procedure that they're going to go down, This is the sort of thing that should implicate the licenses of the lawyers who are actually signing their names to it. I mean it won't. That's a whole other story that we aren't really talking about this week, but the DOJ is also suing the DC bar in order to block them – well, to basically threaten them to not pursue ethical claims against government lawyers.

17:15In this case, they're mad about cases that are involving Jeffrey Clark specifically, but also Ed Martin. They reference but don't really make a claim. Obviously, Clark attempted to have the DOJ lie about fraud in the election that they knew didn't exist in order to set up a bid to have a coup. and Ed Martin has been running around threatening people even though, as he pointed out, we don't necessarily have charges but we're going to shame people which is not how lawyers in prosecutorial roles are supposed to operate by the ethical rules that we have. But the DOJ is trying to get those cases killed on the argument that the D.C.

18:05Bar shouldn't be allowed to prosecute government lawyers for ethical claims, ethical violations. Listen, you miss 100 % of the shots you don't take, which appears to be the mantra for this DOJ. One of the dumber things, and there's a lot of dumb to dumb through, but I just feel like whoever wrote this, and it was probably Trump, it seems like they forgot the first rule of Fight Club. It's like, I think the first rule about the top secret military ballroom is you don't refer to it as top secret military ballroom. the militarily top secret ballroom like it's not even a it's not even a phrase that makes sense like a phrasing that makes sense it just there are so many places there is a point where later in the brief the word bereft gets used and i'm like oh they slipped that one past the goal like there is no way i mean that was one of the takeaways of what was it the times somebody who had the big newspaper who had the article about how we went to war with iran and there was apparently an exchange where i believe it was one of the military leaders said that it was farcical to believe the simple airstrike would result in regime change and rubio apparently jumped in and said that means it's not likely and it's just like he he understood that the word farcical was got to go way the hell over Donald Trump's head.

19:28He needed to jump right in and be like, what that means is. We live in the dumbest timeline. I wonder if anyone was there to do that for the, I'm not going to say his name correctly, I'm sorry, but the Xi thing where he was like, he invoked that, I think it was like a Greek parable, like the problem of like falling nations and like rising ones. Oh, the city or something like that. The trap. Yeah, the trap. Yeah. Yeah, and I'm sure Trump was eating his burgers like, who's trapped? Yeah, the only thing he understands about Grease is I'm sure he has opinions about Christopher Nolan's The Odyssey now that that's apparently the right wing rage of the weekend.

20:08I think it was about like Elliot Page being Achilles or something, and he's not even the character playing that role. They were mad about Page, but they've moved on to Lupita Nyong 'o playing Helen of Troy. They're like, why are you changing the race of this character that didn't actually exist? I personally think they should have picked the, I'm classical in this regard. They should have picked the person that was born of an egg. Yeah, yeah, right? Like, was Helen an egg? It definitely was a Zeus offspring. Yeah, I think there was a swan involved of some kind, you know. But yeah, it's one of those things where like, it's like when Christians quote the Bible at you.

20:48It's like, you didn't do the reading. You're just saying the words. You don't know the context. All right. Well, let's take a break and we'll be back in a moment. All right. Finally, this is a story, a feel good story for Catherine to talk about. Yeah, it's kind of a different, different tact. But, you know, sometimes law firms do things that are intended to just develop their associates in a way that is really meaningful and good. Seussman Godfrey got a shout out from Judge John Tiger because they let a young associate handle a recent argument. Third year associate, well, first year at the law firm, but, you know, two years of federal clerkships under his belt, as is Seussman's want.

21:35Yeah, they generally only hire folks who have already done some clerkship, have clerkship experience and let him handle the with a partner, but let him handle the majority of the oral argument. And the judge was really, really impressed, said, you know, said to him. And so this is your your your first year at the firm. You've only started how long, however long ago at the firm, less than a year. You have your you got your J.D. in 2023. Is that right? And nonetheless, the firm thought it would be a good idea for you to argue in federal court. What I want to say to Susan Godfrey is good for you.

22:13Good for you, really. Which I kind of enjoy how it kind of feels like it was slow played there. I think it's actually a wake-up call or should be for the majority of big law, right, that it actually helps and matters when you're spending the time and effort to give your associates meaningful experience early in their careers. You know, we talked previously, we've talked a million times, I think, probably about the sort of overall big law model about kind of burning and churning through associates that the number of folks they hire as first years are not at all the number of people they want, you know, eight years later when they're making partnership decisions, right?

22:51They want people to leave for other pastures. That's sort of the model. But that's not true at Suisse Man, which is a weird kind of a firm in the sense that it is big law because of its revenue, which puts it pretty high overall. It's in the AMLA 100. But it's also the smallest firm by headcount in the AMLA 100. I think it's just about 300 attorneys or something like that. So it's kind of – and it certainly started as a litigation boutique. But, like, I don't know. Do you still call it a boutique? because it's definitely has the money to be big law. Yeah, no, I struggle with that one. That's an internal categorization problem we have at Above Law.

23:31I always am wondering like, where do we, because, you know, Boyce-Shiller is another one kind of in that situation where you're like, technically big law by how many people they have, but like they function in sort of the boutique mindset. And I also think that in some ways, I think that about Quinn Emanuel too, obviously very huge, But if you're a firm that is kind of litigation only or at least litigation forward, the boutique term kind of fits. Yeah, and certainly that's how a lot of these firms started. I don't think that when Susan McGarvey started, they thought that they would be where they are.

24:09Maybe they did, but long term. But in terms of categorization and internally at Above the Law, I feel pretty confident calling any firm that has the revenue that places it in the top 100 or 200 firms calling them big law. I think that's right. I think that that is a clear, bright line. I'm comfortable with that. But I do think that always kind of needs a little bit of an asterisk when you're talking about, you know, the firms that started their journey as litigation boutiques. And Seussman just does litigation to this day. They want people who want to go to trial. Yeah. So it's definitely a different model.

24:40If you are committed to a new word, boutique is French for shop. I think whatever it would be, it would be something that's the French equivalent of like medium shop or a larger shop. Yeah, just kind of like not a big box store, like artisanal. Artisanal law firm. I think that's true. Artisanal firm, yeah. I like it. It's pretty artisanal. Organic. but i think that's true also of some other shops that focus on you know ip or yeah you know some another good one ip boutique they're they're just ip boutiques probably should be called artisanal actually oh that was that was that was good i hate that that was good we like that uh but but it is we're thinking about that these words we use to kind of broadly talk about the industry are not actually one size fits all.

25:34Yeah. Well, all right. We're done a little bit early today. Good for us. Yay, we did it. Y 'all, we did it. We were efficient. Well, you know what it is. The last story doesn't have a lot of anger to it. It's just like a good job. Yeah. And you know what? I have to say thank you to the readers for reading that story that just sometimes you need a good pat on the shoulder for, you know, you did a good job. It's just a happy story. It was one of those that made you kind of have some faith in humanity because, yeah, it was not one of our salacious stories and people flocked to it anyway. Yeah, let me say that the associate in question was Dylan Salzman.

26:12So congratulations to him as well for a great oral argument. Yeah. All right. Well, thanks, everybody, for coming and checking out the show. You should be subscribed to the show so you get new episodes always before they drop. You should be listening to the Javot, Catherine's other podcast. I'm a guest on the Legal Tech Week Journalist Roundtable. We've got – we're talking about tech. We've got other shows by the Legal Talk Network to listen to. You should be reading Above the Law to read these and other stories before they come out. Social media, AboveLaw.com. Obviously, I'm at Joe Patrice. Catherine's at Catherine1, the numeral one.

26:52Chris is at Rights for Rent, as in writing, not as in – Not for the things the Supreme Court recently eviscerated when it comes to voting. I mean, civil rights. I guess I don't need to make that clarification anymore. Civil rights not being a thing. I can now say rights only means that you're physically writing things. And then with all that, we will check in later. Peace. Peace. Bye.