Sunday, January 29, 2023

California files disciplinary complaint against John Eastman, the lawyers for the Trump campaign credited to have come up with a plan to have Mike Pence reject the results of the presidential election

Last week, the State Bar of California filed 11 disciplinary charges against attorney John Eastman based on his efforts to help overturn the results of the 2020 election in order to allow then-President Donald Trump remain in office.  The news release by the State Bar of California is here.

According to an Op-Ed published in the Los Angeles Times, "[a]ccountability for Eastman is long overdue" because, even though he knew he was providing unlawful advice, he advised Mike Pence "to reject [Joe] Biden’s certification or otherwise tamper with it."

Here are a few links to more on this story:

The Guardian

Courthouse News Service

Legal Ethics Lawyer

MSNBC

Above the Law

Jurist

Professional Responsibility: A Contemporary Approach


First "AI-Robot Lawyer" has a rough week, ending in quitting the profession apparently

A few weeks ago, the head of a company called DoNotPay offered a million dollars to anyone who’d let his a chatbot argue a case at the Supreme Court. I do not know if anyone took him up on the offer but it was later reported that two lawyers agreed to let the bot represent two defendants fight speeding tickets in traffic court.  

The story picked up a lot of press (including the Smithsonian magazine), but some time later, the plan was scrapped and DoNotPay announced that its chatbot is quitting the legal services business to concentrate on consumer protection products instead.  

What happened?  It is not entirely clear, but if you are interested in the possibility of A-I in the legal field you should read the account of the Kathryn Tewson's account of her experience with DoNotPay which was published in two parts in Tech Dirt here and here.  The story ends with DoNotPay blocking Tewson about which she writes: ". . .  DoNotPay.com would rather block me, ban my account, retcon his terms of service to disallow any test usage at all, and claim to pull out of the “Legal Services” industry that his site is PLASTERED with branding for, rather than show me the two documents I generated and tried to buy."  

Not a good look...  Above the Law also has two comments on the story here and here.  The second one of these stories deals with the bigger questions raised by this whole debacle.  Could a robot help provide legal representation to clients in certain situations?  Would that be a bad thing?

In general, at this point the answers are probably no and yes.  But for traffic court... the answers may be different.  The fact that the company was apparently trying to do something surreptitiously in court eliminated the possibility and the fact it acted so strangely when challenged by someone trying to test its product did not help its image among lawyers, but does that mean that AI legal aides don't have a place in the market of legal services?  

If you are interested in this topic, you should read the article by Joe Patrice in Above the Law in which he argues that AI-driven legal aides are going to keep getting more sophisticated and that much of the arguments against allowing AI services "read a lot as though lawyers only want technology that keeps them properly installed as the sole gatekeepers of justice. . . . . In an ideal world, everyone who finds themselves before the law would have access to an attorney. But since we seem committed to a legal services model that makes that a fantasy, we need to have serious discussions about what tools we let people use to pursue their own rights."

Thursday, January 26, 2023

Idaho Supreme Court issues opinion explaining why it rejected Model Rule 8.4(g); hint: because it is unconstitutional...

In November 2021, the Idaho State Bar Commissioners recommended an amendment to Idaho Rule of Professional Conduct 8.4 to include anti-discrimination and anti-harassment provisions along the lines of those in Model Rule 8.4(g).  After the resolution was adopted by the members of the Bar, the proposal was sent to the Idaho Supreme Court but the Court declined to adopt the proposed amendment.  

Last week, the Court issued a full opinion providing a full explanation of its rejection of the resolution explaining that it was “appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future.”  

The Court the proceeded to explain that although it commends the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession it felt obliged to reject the proposed resolution because, among other things, the proposed amendment “violates the First Amendment because it is not narrowly tailored to withstand strict scrutiny” and because it is void for vagueness and could have a chilling effect on speech.

You can find a link to the full opinion here.

I am not surprised by the opinion.  I, and many others, have been arguing that Model Rule 8.4(g)'s constitutionality is questionable for a long time.  You can read all my posts on the subject by going here and scrolling down.

Saturday, January 21, 2023

More coverage on sanctions on Trump and his attorneys

Yesterday I reported that a federal court imposed almost a million dollars in sanctions on Donald Trump and his lawyers for a frivolous case that the court said "should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it." 

Interestingly, soon after the imposition of sanctions, the Trump team decided to withdraw another case they had filed in a different court, which suggests that the sanctions may have had an effect!   

Not surprisingly the news about the sanctions has generated a lot of coverage.  Here are some links:

MSNBC (story and video)

New York Times

Courthouse News Service

NPR

Above the Law

Jurist

And here are a few links on the story about the withdrawal of the other case

Why Trump abandoned his suit against New York’s attorney general (MSNBC)

Trump withdraws Florida lawsuit against New York attorney general (Politico)

Friday, January 20, 2023

Another judge imposes sanctions on Trump's lawyers; but this time Trump himself may have to pay too

It can't be a good thing for the petitioner when the opinion of the court starts by saying "This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it." 

Those are the first lines in an order filed yesterday by US District Judge Donald M. Middlebrooks in a case filed by Donald Trump against Hilary Clinton.  

And,  as you would expect, the result was not favorable to the petitioner.  In fact, in the end the judge concluded that "Plaintiff Donald J. Trump and Plaintiff’s lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39."

Ouch!   Jointly and severally liable.  That means that Trump himself may have to pay part or all of that sanction.  I wonder how well that is going to go.

You can read the full order here.  The Guardian has the story here.

Monday, January 16, 2023

California moves closer to adopting a rule requiring reporting of another attorney's misconduct (a la Model Rule 8.3)

Up to now, California is the only state that has not adopted some version of Model Rule 8.3 which requires lawyers to report another lawyer's misconduct under certain circumstances.  But soon that distinction may come to an end.  

As reported in California Legal Ethics, "the California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) spent most of its meeting on Friday January 13 drafting a California version of ABA Model Rule 8.3."  

The post in California Legal Ethics explains why the rule was rejected when California adopted the rest of the Model Rules, and the argument in favor of adopting it now.  

Sunday, January 15, 2023

Podcast on jury nullification

If you are interested in the topic of jury nullification, Radio Lab has a recent 1 hour long podcast on the subject.  You can listen to it here.

Friday, January 13, 2023

Supreme Court to address issues related to attorney-client privilege - UPDATED

January 9, 2023

If you are reading this blog, you probably know already that the US Supreme Court agreed to hear a case on whether a communication involving both legal and non-legal advice is protected by the attorney–client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication.  The case is called In re Grand Jury, and the oral argument is today!

Here are a few links with commentary.  I will continue to update the list as more commentary is published after the oral argument.

SCOTUS Blog

Presnell on Privileges

UPDATE (1-13-2023):  Here are a few more links to stories that discuss the case:

Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes

ABA Law Journal:  "Law firm's more protective test for attorney-client privilege 'is a big ask,' Kagan says"

The National Law Review: "The Scope of Attorney-Client Privilege Over Dual-Purpose Communications"

The National Law Review:  "U.S. Supreme Court Is Asked to Adopt the ‘Significant Purpose’ Test to Permit the Withholding of Dual-Purpose Communications as Subject to the Attorney-Client Privilege"