New proposal to renew lawyer discipline system

February 27, 2023

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.

Update 10-21-23

The New York Legal Ethics Reporter has a comment 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.

UPDATE 10-21-23

I have posted multiple times on this story.  In order:  January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

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.

UPDATE 10-21-23

I have posted multiple updates to the story here:   January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

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.

UPDATE 10-21-23

I have posted multiple updates to the story here:   January 29, February 14, February 16, March 4, March 10, March 17 and October 21.