Did Robert Costello Breach Michael Cohen's Confidences?

Could attorney Robert Costello have to face ethics questions for testimony on Michael Cohen?  Professor Steven Lubet (Northwestern) thinks so.  His column is on Law & Crime. 

Op-ed in support of easing "unauthorized practice of law" statutes in favor of access to legal services

Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them.  The case is currently pending on appeal before the Court of Appeals for the Second Circuit.

I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law.  The article summarizes his view which he also argued in an amicus brief filed before the court.  You should read the whole thing, but here is an excerpt:

[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . . 

. . . . 

New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . . 

When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.

But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.

The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . . 

. . . .

The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . . 

Judge rules Trump lawyer must testify in special counsel probe of classified documents

As you probably know by now, a federal judge recently ruled that one of Donald Trump's former lawyers must testify about communications between him and his client because of the "crime fraud exception" to attorney-client privilege.  Here are some links to the coverage.

On March 22

MSNBC

Politico

Above the Law

The Guardian

Court News Service

On March 23

MSNBC

New York Times

Sixty years since Gideon v. Wainwright, defendants still face obstacles in their right to an attorney

Last week we celebrated the 60th anniversary of the decision in Gideon v. Wainwright, which recognized that defendants accused of serious crimes have the right to get an attorney appointed by the state.  

Yet, the celebration of the landmark case and the right it recognized is often hard to vindicate because of the obstacles faced by public defenders.

This unfortunate reality was highlighted in a couple of articles this week:

You have the right to a lawyer, but public defenders note a lack of resources, respect (NPR)

Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)

Rudy Giuliani files post-hearing brief in the District of Columbia bar discipline case

The Legal Profession Bog is reporting that Rudy Giuliani recently filed a post-hearing brief in the District of Columbia bar discipline case arguing that Disciplinary Counsel failed to establish any ethics violations by clear and convincing evidence or, in the alternative, that if a violation is found, the proper sanction should be just an informal admonition or reprimand.  The office of the Disciplinary Counsel filed a reply.

You can read the information and follow the links to the documents here.

Does Trump's lawyer have a conflict of interest?

 The other day I saw a story with the title: "Trump lawyer's ethics issue: He initially was approached by Daniels."  In it, the author recalls the fact that the lawyer currently representing Trump in the case related to the hush money payment made to Stormy Daniels had been consulted by Ms. Daniels before he agreed to represent Trump.  The article suggests that this means that Trump's lawyer (Joe Tacopina) has a conflict of interest.  However, I don't think we have enough information to reach that conclusion...  yet.

What we know is that Stormy Daniels approached Tacopina about representing her but he declined.  It appears that that "approach" included at least one conversation between Daniels and the lawyer, but that does not necessarily mean that "an attorney-client relationship was established at the point of that consultation" as the article states.

When a person approaches an attorney to discuss whether the attorney will take on their representation what is formed is a relationship between the attorney and a prospective client, and the duties owed to a prospective client are different than those owed to a client.  

Whether the prospective client actually establishes an attorney-client representation depends on what transpires during the conversation(s) leading to the decision by the lawyer not to take on the representation.  And that is the information we don't have in this case.

Having said that, assuming there was no attorney-client relationship formed, is there "an ethics issue" as the article says?  Assuming the rules that apply are the ones from New York, a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter although a different lawyer from the same firm could if certain conditions are met. 

Now, let's keep assuming things we don't know.  Assuming that there was a consultation during which Stormy Daniels disclosed confidential information that could be used against her in some way in the future, what would be the consequences?

Assuming all that as true, it could be argued that the lawyer violated a duty toward Stormy Daniels and could be subject to discipline for it.  

But could it lead to having the lawyer disqualified from representing Trump in the criminal case?  Well, the interesting thing about that is that the person who could object to the lawyer's representation of Trump would be the prospective client, ie, Stormy Daniels, and she is not a party in the criminal case.  She might be a witness, but according to some news reports I have seen, she did not testify before the grand jury.  

This means that the State would have to argue that she will be a witness and that Trump's lawyer should be disqualified from representing him because the  lawyer would be in a position to disclose or use confidential information obtained from her during her original consultation that could be significantly harmful to her.  Not just harmful. Significantly harmful.  

I don't know what the rules is about who has standing to file a motion to disqualify in New York so I don't know if the State can even bring the argument.  

Do Attorneys Need to Implement Email Encryption?

Most states have adopted the view that the duty of competence includes a duty to keep up with modern technology.  Also, most states have adopted the view that the duty of confidentiality includes a duty to take reasonable measures to protect confidential information from unauthorized or negligent disclosure (which can happen if a lawyer is not familiar with certain aspects of modern technology).  

So, given those two facts, do lawyers need to implement e-mail encryption?  I have not seen any specific decision or opinion that answers that question with an unequivocal "yes" but I have seen articles suggesting that it would be the logical answer.

And here is the latest, published in Law Technology Today.  

Another update on the DoNotPay "robot lawyer" story -- more information on the lawsuit

 Last week I reported that the "world's first robot lawyer" was getting sued...  sort of...  It would be funny if the robot lawyer had been sued for malpractice, but that is not what is happening.  The company that advertised offering the world's first robot lawyer is getting sued for unfair competition, restitution and an injunction barring it from offering its legal services.

So, here is an update and a bit of commentary from Tech Dirt, which also has a full copy of the complaint.

Recent comments on AI and the practice of law

 There has been a lot of discussion about artificial intelligence recently and I am sure there will be many articles soon on different ways in which AI will affect the practice of law.  I will post links when I see new ones, but to get you started here are a few I saw this week:  

Why ChatGPT Matters for the Future of Legal Services

How AI Has Become Increasingly Practical In Law and Where We Are Heading

Latest version of ChatGPT aces bar exam with score nearing 90th percentile

ChatGPT-4 Aces the Bar Exam

Trump lawyer admits to lying about the elections in order to avoid harsher discipline; then promptly proceeds to lie about it

 This week saw a lot of coverage and debate about the decision by the Colorado disciplinary authorities to agree to a stipulated public censure for attorney Jenna Ellis who admitted that she misrepresented facts (with "at least a reckless state of mind") at least ten times during Trump’s attempts to challenge the election results in 2020, and to doing so for a selfish motive as an aggravating factor. You can read the opinion here.

A day later, however, she took to Twitter to claim that she did not admit to lying, or that she didn't lie, or something.  According to her, "lying requires intentionally making a false statement" which I guess means she admitted to making misrepresentations but that she did not know what she was doing or saying at the time; or maybe that she only admitted to making misrepresentations recklessly?  I don't know; it is hard to tell.   

Interestingly, as reported by Steve Benen, "[a]s recently as 2016, Jenna Ellis was not a Donald Trump admirer. She repeatedly described the then-candidate as an “idiot,” adding that she considered him an “unethical, corrupt, lying, criminal, dirtbag.” Ellis even took aim at Trump’s supporters, saying they didn’t care about “facts or logic.”"  

Yet, somehow, at some point I guess Ellis herself became uninterested in facts and began to misrepresent them or maybe she just did not care enough to know she was misrepresenting them or maybe she thinks it is ok to make statements with reckless disregard for the truth...?  Again, it is hard to tell.  

Either way, it all has now caught up with her, although only in a minimal way.  And this is the first issue debated this week.  Why impose such a minimal sanction, which does not include any type of suspension from practice and which she evidently felt was easy to ignore?  It is hard to say, but clearly this was a settlement.  The disciplinary authorities wanted to impose discipline and she did not want to risk a worse outcome.  Should the authorities have tried to get a more significant penalty?  I think so, but it is hard to know what limitations they were dealing with.  Not knowing what the evidence and other factors were, it is hard to say if the disciplinary authorities did the right thing.  

The one thing we can say is that the sanction does not seem to have had much on an effect on the lawyer's willingness to believe in facts or logic as a result, so not much has changed.  As argued by Dennis Aftergut in a short piece published at Verdict, 

There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. . . . 

Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.

. . . .

In Ellis’s case, . . . [t]he stipulation she signed cites 10 of her false statements . . .

The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”

Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.

Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.

For more on the disciplinary decision you can go to the Legal Profession blog, Politico, MSNBC, Rolling Stone or Above the Law, 

Another issue debated during the week by some is whether the statements were protected by the First Amendment, and whether it would be valid to impose sanctions for protected speech even if the lawyer was acting as a lawyer and the statements were made in order to advance the interests of a client.  This is an interesting question that may have played a factor in the Colorado authorities decision to settle the case rather than to risk having to litigated further.

Dennis Aftergut mentions this issue in his piece also:

Ellis’s statements . . . were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.

But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square.  . . .

The latest in the Do Not Pay saga: "the world's first robot lawyer" is now getting sued

As reported in Courthouse News Service, "[t]he world’s first robot lawyer has been practicing law without a license — doing a pretty poor job of it to boot, according to a putative class action filed Tuesday in San Francisco Superior Court."

This is the latest chapter in the Do Not Pay saga I have been reporting recently.  A lawsuit has been filed against DoNotPay seeking class certification and restitution on a state-law claim of unfair business practices.  You can read about it here.

Will Artificial Intelligence help provide more access to quality and affordable legal representation?

There has been a lot of attention lately to issues related to Artificial Intelligence ("AI"), particularly to the use of ChatGPT to generate written content and the claims that a company called DoNotPay made about offering the first robot lawyer.  

Obviously, there is a lot of uncertainty about the future of AI and whether it will be a positive or a negative in society in general and in the legal profession in particular.  If you are interested in this topic, take a look at a short article by Lance Eliot (Stanford) published in Jurist called ChatGPT and Other AI Programs Aid and Muddle Access to Justice as Non-Lawyers Seek Their Advice, available here.  It starts with this:  

Can access to justice be enhanced via the advent of generative AI such as the widely and wildly popular ChatGPT app?  I get asked this pointed question quite frequently. The straightforward answer is that generative AI provides a mixed bag, namely that in some respects this type of AI will indeed enable greater access to legal information and bolster access to justice, though there are downsides that muddle the otherwise hoped-for positive benefits. Great care and mindful attention need to be diligently considered on how AI comes into play for legal tasks.

And, if you want a quick look at some of the issues raised by the use of AI in general, you may want to watch a recent segment in John Oliver's show Last Week Tonight (below) or here if you can't see the player below. 

Illinois Supreme Court announces changes to rules on attorneys' fees

The Illinois Supreme Court recently announced amendments to Illinois Rules of Professional Conduct 1.5 and 1.15 to clarify the law related to retainers.  Unfortunately, the changes do not address the most important issue that needed to be addressed.

On the positive side, the amendments explicitly note that nonrefundable fees and nonrefundable retainers are prohibited, and “any agreement that purports to restrict a client’s right to terminate the representation or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees is prohibited.”  This is a clarification that would be helpful in many other states where the issue is still confusing.

However, the amendments did not get rid of the notion of a "special purpose (or advance payment) retainer."  The concept originates in the Court's decision in Dowling v. Chicago Options Associates, a case that was wrongly decided and which, in the end, validated a scheme to use a law firm to hide assets from a creditor.  

A special purpose retainer is defined as a “present payment to the lawyer in exchange for the commitment to provide legal services in the future."  Note how that is exactly the same definition of a security retainer, so to distinguish them it is said that the special purpose retainer "may be used only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer” and that, unlike the security retainer, a special purpose retainer is "earned immediately."

Thus, the special purpose retainer is considered to be a fee that immediately becomes the property of the lawyer, whether the services are performed or not.  If that means that the retainer pays just for the commitment to perform the services, then how is it different than a classic retainer?  On the other hand, if it pays for the actual services, then it is nothing other than a fee paid in advance, which can't be earned immediately because they can't be earned until the work is done.  So, in the end, if the special purpose retainer pays for services not yet rendered but is earned immediately nonetheless, it is actually earned and not earned at the same time.  And, if that is the case, it does not matter where the lawyer deposits the money, the lawyer will be commingling.  And that is just two of the problems with it.

Years later, the Court was confronted with the consequences of that new type of retainer and had a chance to get rid of it, but instead decided to ban it in certain types of cases only.  See, In re Marriage of Earlywine (2013).  I wrote about that case back then here.

In considering the amendments recently announced it seems that the Court had yet another opportunity to fix its original mistake but again failed to do so.  

You can read more about the recently adopted changes here or here.  You can read more about my thoughts on fees that are earned and not earned at the same time here and here.

Podcast on the attorney-client privilege as it applies to entity clients

Ipse Dixit has posted a podcast with Elise Bernlohr Maizel, Acting Assistant Professor of Lawyering at NYU Law School, in which she discusses her article "The Case for Downsizing the Corporate Attorney-Client Privilege." Maizel begins by describing the attorney-client privilege and work product doctrine. She explains why the attorney-client privilege doctrine has always been a poor fit for corporate clients. And she proposes a new model for the attorney-client privilege in the corporate context that is both more conceptually coherent and practically desirable. 

You can listen to the podcast by clicking on the play button below or by going here.

Arizona Senate approves bill to eliminate mandatory bar membership

The Arizona Senate recently approved a bill that "prohibits the Supreme Court from requiring an attorney to be a member of any organization in order to become or remain a licensed attorney in Arizona."

You can read a summary of the bill here.

ABA issues new formal opinion on choice of law

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (no. 504) on the issue of choice of law.  The abstract reads:

When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.

For now, you can find the opinion here.  Go find it soon because the opinions are available free only for a limited time.  For a short comment on the opinion go to the ABA Journal here.

Even more on the DoNotPay story

If you have been following the story of DoNotPay -- the company that claimed to offer a "bot" lawyer, but which after some bad publicity decided to "quit the profession" you will be interested in the more recent developments.  If you have not been following the story, go here, here and here first to catch up, then take a look at the links below.

LawSites podcast/interview with the paralegal who broke the story to begin with and who concluded that DoNotPay’s "supposed AI-driven products were little more than smoke and mirrors and that its representations about its products constituted consumer fraud."  You can also find the podcast here.

TechDirt's podcast/interview with the same paralegal.

TechDirt: "FTC Fires Warning Shot At ‘AI’ Companies Like DoNotPay: Do Not Oversell Your AI"

New proposal to renew lawyer discipline system

 Several Professional Responsibility lawyers and scholars recently published a proposal to renew the American system of lawyer discipline.  It is not very long and it is worth reading. 

The authors point out that although there has been "a steady drumbeat of discussion" about questions of nonlawyer ownership of law firms, fee-sharing with nonlawyers, and licensing of legal para-professionals, there are other important aspects of lawyer regulation that need to be updated.  For that reason, they are calling for the ABA to engage in a revision of the infrastructure of lawyer regulation, rather than the substance of ethics rules.

For example, the proposal suggests that we should consider whether the boundaries of regulation should change, or expand.  They ask, among other things, whether regulation should expand through new types of regulation of lawyers or by bringing others under some form of regulation and whether lawyers should be the ones in charge of the regulation or whether there should be new regulators?

The authors of the proposal also point out that there are several old documents adopted by the ABA to help jurisdictions implement their regulatory systems that have been largely ignored or that are in need of updates.  For example, the ABA Model Rules for Lawyer Disciplinary Enforcement were adopted to provide jurisdictions a template for investigations and proceedings governing lawyer discipline. These model rules were adopted in 1989 but have not been revised in decades.  The same is true for the ABA Standards for Imposing Lawyer Sanctions which were last amended 30 years ago and for the Model Rules for Lawyers’ Funds for Client Protection Funds (last updated in 1989) and the Model Rules for Client Trust Account Records which were last amended in 2010. 

Given all this, the authors of the proposal suggest 

. . . that the ABA president should appoint a group of experts from all the relevant constituencies to survey the current landscape and experience of the last few decades. This review should include the more than 50 versions of disciplinary enforcement rules currently operating in US jurisdictions, as well as innovations in regulation US jurisdictions might adopt from other countries.

This group should examine carefully the full scope and record of other regulatory approaches and should also reinforce the strengths in our current system. 

If you are reading this blog, you must be interested in Professional Responsibility issues; and if you are interested in Professional Responsibility issues you must be interested in discussing lawyer regulation.  And for those reasons you should read the proposal in full.  You can find a copy here. The Legal Profession Blog also has an excerpt here.

Program on sanctions imposed on Trump and his lawyers

I recently reported that Donald Trump and his lawyers were fined to the tune of almost a million dollars in one of the many frivolous cases he has filed.  See here, here and here.  

The YouTube channel "Legal Eagles" recently dedicated an episode to the case.  You can watch it here. 

Sanctions imposed against Trump's lawyers affirmed on appeal

 It is difficult to keep up with all the different legal actions that Trump is in the middle of these days.  A few days ago I reported on an order in federal court imposing almost a million dollars in sanctions against Trump and his lawyers.  See here and here.

Now comes news that in a different case a judge found Trump to be in civil contempt for delaying or evading discovery requests and imposed a sanction of $10,000 per day until Trump complies with discovery as ordered by the court.

Trump and his lawyers appealed the order, but two days ago the order was upheld by an appellate court.  You can read the two page order here.

Special counsel alleges Trump lawyer's testimony is not privileged because of the crime/fraud exception

The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury.   Because the lawyer is likely to (if he hasn't already) argue that the information sought is protected by the attorney-client privilege, the  special prosecutor is reportedly arguing that the privilege has been waived because the information relates to the client's intent to commit a crime or fraud.

Overcoming the privilege is no easy task, and I am very interested in what will happen next! Stay tuned!

As you would expect, this story has gotten some attention, so here are some links:

Special counsel seeks to force Trump lawyer to testify, reports say (Politico)

Prosecutors Seek Trump Lawyer’s Testimony, Suggesting Evidence of Crime (NY Times)

Special counsel seeks answers from Trump lawyer on classified docs (MSNBC)

Why Jack Smith going after crime-fraud on Trump attorney privilege matters (MSNBC)

Prosecutors Sent Trump A Special Valentine's Motion To Pierce Attorney-Client Privilege Under The Crime-Fraud Exception (Above the Law)

More fallout regarding the series of articles on the DoNotPay saga

I have been following the story of DoNotPay, a company that at one point offered a million dollars to anyone who’d let its chatbot argue a case at the Supreme Court.  If you don't know what I am talking about go read my posts here and here, and follow the links to the original sources.  

If you do know what I am talking about, you know that through a series of articles, Kathryn Tewson, has been criticizing DoNotPay's claims that it can use its AI to provide legal services and eventually the company's CEO Joshua Browder announced it was not going to continue providing legal services after all.

Commenting on the articles and the "back and forth" between Tewson, Browder and others, an article in Above the Law stated that "[t]here is some disagreement at ATL was to whether DoNotPay CEO Joshua Browder is an obnoxious charlatan or a pioneering entrepreneur providing a good service for the underserved. Time will tell."

Fast forward to today, when it is now clear (as if it wasn't already) that Tewson is in the camp that thinks Browder is a charlatan.  

As reported in TechDirt, a couple of days ago, Tewson filed a petition with the NY Supreme Court asking for an order for Browder and DoNotPay to preserve evidence, while also seeking pre-action discovery, as she plans to file a consumer rights suit, arguing that DoNotPay is fundamentally a fraud. The petition lays out that DoNotPay is advertising a bunch of legal services that there is little indication it can actually provide, and calls out the similarities to Theranos.

For more details on this new development in the story, go read the article at TechDirt.

First "AI-Robot Lawyer" has a rough week, ending in quitting the profession apparently - UPDATED x2

 A few days ago I posted a story on a company called DoNotPay which at one point offered a million dollars to anyone who’d let its chatbot argue a case before the Supreme Court.  The company had planned to help represent some clients in a lower court, which ended poorly before it even happened, all of which in the middle of some bad publicity.  See here.

In response, the owner of the company decided to speak out in a very well known podcast on law and technology.

So, how did it go?  You can decide for yourself by listening to the podcast, but as described in an article in Above the Law which summarizes most of the recent controversy, 

There is some disagreement at ATL was to whether DoNotPay CEO Joshua Browder is an obnoxious charlatan or a pioneering entrepreneur providing a good service for the underserved. Time will tell... But there can be zero dispute that the 26-year-old CEO made a spectacularly bad choice when he agreed to do Bob Ambrogi’s Legalnext podcast.

You can listen to the podcast here, or by using the player below.  For more on the controversy and lots of links, read the latest at article on the subject at TechDirt.

Artificial intelligence and the practice of law

There has been a lot of attention paid to artificial intelligence in the practice of law recently.  One of the main sources of debate has been the use of ChatGPT.  I have seen articles discussing whether it would affect education (by having students use it to write papers), or whether as one author put it "how ChatGPT is going to revolutionize this industry or utterly destroy that one" whether it will it end lawyering as we know it, whether it could pass law school classes, etc.  

In case you want to catch up on that, take a look at these stories:

ChatGPT Almost Passed the Bar, But Competent Lawyers Do Much More

Judge Uses ChatGPT To Render Decision

How not to practice law: work on your computer out in public where anyone can read what you are doing

 Most states now adhere to the notion that the duty of competence includes an element of competence over the use of technology.  But there are lots of cases and stories out there involving lawyers making mistakes, getting cases dismissed, disclosing confidential information, and more because they don't seem to understand how to use technology.  So, here is the latest.

Here is a story of a lawyer working on an airplane in a way that another lawyer siting several seats away could "in a matter of seconds, and without really trying to," figure out the lawyer's specialty and "what her major upcoming deadlines were, her staffing needs for the next few months, and the fact that she was waiting for a particular federal appellate decision to guide her strategy in her case in the lower court."

To read the full story, go here.  

More importantly, try not to work in public, but if you must, try to do so in a way that protects the privacy of your work.

DC Disciplinary Counsel rules that Rudy Giuliani should be disbarred

The Legal Profession Blog is reporting that the District of Columbia Disciplinary Counsel just filed a 46-page Proposed Findings of Fact and Conclusions of Law in In re Giuliani concluding that Rudy Giuliani should be disbarred.  It concludes that 

The Hearing Committee should recommend that the Court of Appeals disbar Mr. Giuliani because the integrity of the legal profession demands it. The Court must send a message that lawyers who misuse their law licenses to undermine our constitutional form of government cannot continue to practice law. One hopes that no other lawyer will ever engage in comparable conduct. Alas, as divided as our country is and as distrustful as many of us are of the basic institutions of our democracy - a distrust that Mr. Giuliani fostered and continues to foster - that may be a forlorn hope. But at the very least, the bar needs to know clearly that the consequences of such a betrayal of one's oath to support the Constitution is the loss of the privilege to practice law.

 

Another article on the disciplinary claims against John Eastman

 A few days ago I reported that the California Bar has filed a disciplinary complaint against John Eastman, a main player in the plot to overturn the 2020 presidential election.  See here and here. 

As you would expect, the case has attracted a bit of attention and here is yet another article on the subject.

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

January 29, 2023

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."

UPDATE 2/4/23

Here is a follow up story on DoNotPay's less than stellar businsess practices.

ABA asks for comments on possible amendments to Model Rules

 The ABA Standing Committee on Ethics and Professional Responsibility and ABA Standing Committee on Professional Regulation is seeking comments on the Committees’ Third Discussion Draft of possible amendments to the ABA Model Rules of Professional Conduct (Model Rules). 

The Third Discussion Draft addresses possible amendments to ABA Model Rule 1.16 (Declining or Terminating Representation) relating to lawyers’ client due diligence obligations. Your comments will assist the Committees in determining how to proceed with a Resolution for the 2023 ABA Annual Meeting.

You can access the discussion drafts and other information here.

Pleases submit written comments to Natalia Vera, ABA Center for Professional Responsibility Senior Paralegal at natalia.vera@americanbar.org by March 3, 2023. All written comments may be posted online.

The Committees will hold a Zoom public roundtable on the Third Discussion Draft on February 28, 2023. Those wishing to present comments will be allotted five minutes for their presentation. The Committees would appreciate if speakers also submit written comments by March 3, 2023. To register to attend, please contact Ms. Vera at natalia.vera@americanbar.org by February 17, 2023.

Article (and video segment) on why Trump lawyer John Eastman deserves to be disbarred

 Here is a link to an article and a video discussion on why John Eastman should be disciplined.

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

Idaho Supreme Court issues resolution 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 resolution 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 then 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 the court's resolution here or, through another link 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.

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)

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.   

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

Here is the text of California's proposed modified version of Model Rule 8.3

 As I reported yesterday, California is moving quickly to approve a modified version of Model Rule 8.3.  Click here for the full text of the proposal.

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.  

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.

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"

How not to practice law: continue arguing the arguments the court told you not to argue anymore

Above the Law is reporting that last Wednesday New York Supreme Court Justice Arthur Engoron sent a note to lawyers for the Trump family and the Trump Organization stating that "[u]pon thoroughly reviewing the papers in support of some defendants’ pending motions to dismiss, this Court is considering imposing sanctions for frivolous litigation . . ., for setting forth the same legal arguments that this Court previously rejected . . ."

You can read the full story here.

Judge suspends law license of lawyer for Alex Jones following Sandy Hook document leaks

 A lawyer for conspiracy theorist Alex Jones has been suspended from practicing law in Connecticut for six months for improperly giving Jones' attorneys in Texas confidential documents, including the medical records of relatives of victims of the Sandy Hook Elementary School shooting.

“We cannot expect our system of justice or our attorneys to be perfect, but we can expect fundamental fairness and decency,” the judge wrote. “There was no fairness or decency in the treatment of the plaintiffs' most sensitive and personal information, and no excuse for the respondent's (Pattis') misconduct.”

Pattis said Friday in a text message that he plans to appeal the discipline and seek a stay of the punishment while he challenges it.

You can follow the story her:

Courthouse News Service

CNN

Above the Law 

Louisiana Legislature adopts provision that affects a plaintiff's ability to recover in a legal malpractice action

 As reported in Louisiana Legal Ethics, last year, the Louisiana Legislature enacted La. Rev. Stat. 9:5605.2, which provides that "[i]n any action for damages by a client against an attorney, the client’s recovery against the attorney shall be limited to the amount of damages which the attorney shows by a preponderance of the evidence would have been the maximum amount of damages that the client could have collected in the client’s underlying action in which he was represented by the attorney."

The statute is unusual in that it switches the burden of proof to the defendant to prove the amount of the recoverable damages.  This should not be the case.  The burden should remain on the plaintiff.

The statute is a response to the Louisiana Supreme Court’s 2020 decision in Ewing v. Westport Insurance Corporation, 315 So. 3d 175 (La. 2020) in which the court held that “proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.”