Sunday, June 25, 2023

Trump lawyer John Eastman faces disciplinary charges in California

 Attorney John Eastman fought to overturn the 2020 presidential election and keep Donald Trump in power. Now, he's fighting to keep his law license.  The state bar of California argues Eastman knowingly pushed false conspiracy theories about the election and should be disbarred. Disciplinary hearings against Eastman started June 20.  

You can read, or listen to, more about the story here:  NPRNPR audioCourthouse NewsPolitico

Another article in Courthouse News reports that Eastman testified "about evidence gleaned from bad statistics and amateur ghost hunters" and that "[t]he disbarment hearing, initially set to last 8 days, is proceeding at a glacial pace. It will continue next week, then break for three weeks before finishing up at the end of August."

NPR has another audio report here.

For my previous coverage of Eastman's case go here, here and here.

For coverage on other Trump lawyers, go here.

Richard Painter: "I did Alito’s ethics prep for his confirmation hearing. His new excuses are nonsense."

Richard Painter, the chief White House ethics lawyer from 2005 to 2007 who helped prepare Justices Roberts and Alito for their confirmation hearings, has published an op-ed commenting on "what went wrong?" or, more specifically, "Why today do so many Americans have far less confidence in the ethics of the Supreme Court than we did in 2006?"

You can read the full article here.  

Calling some of Alito's arguments "utter nonsense," Painter answers the question, partly, by concluding that "[t]he problem is that the justices interpret federal statutes that apply to themselves and ethics norms for judges as they see fit. And when their actions depart from generally accepted ethics practices, they claim that as an independent branch of government they can do whatever they want."

And then concludes as follows:

The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.

And that Congress can fix the issue by passing legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.

Friday, June 23, 2023

Comment: Ethical Considerations for Lawyers Regarding Email Encryption

 Here is a short article on (and called) "Ethical Considerations for Lawyers Regarding Email Encryption".  You can read it here or here.

Sunday, June 18, 2023

Two stories related to "non lawyer professionals" and the market of legal services

 If you follow the news about Professional Responsibility you know that for years there has been a lot of debate about whether it is a good idea to allow non-lawyers to provide certain legal services in order to provide more, better and, presumably, less expensive access to legal representation.  Several states have created programs that provide such services and many others are discussing the possibility.

Last week, the ABA Journal published a couple of short articles related to the subject:

"Nonlawyer advocates can help tenants facing eviction in program approved in 2 states" discusses the programs in Utah and Arizona.

"How could alternative licensure alter lawyer labor supply? Law prof's research may have answers" discusses the research of Kyle Rozema, an associate professor at the Washington University School of Law in St. Louis, which concludes that if jurisdictions eliminate the bar exam as an entry to attorney licensure, the labor supply of lawyers would increase by 16%.  You can read the study's findings here.

How not to practice law: gamble away clients' funds

So, here is the second installment of the day in the "how not to practice law category" and again, as usual, the punchline says it all.  This one involves a lawyer who reportedly lost over $8 million in client funds at a casino.  The attorney will reportedly plead guilty to wire fraud and money laundering. She faces upwards of 20 years and has already agreed to pay $8,785,045 to recoup five investors.  You can read the story here.  

So what are the odds that she will get disbarred?  (See what I did there?...  "the odds"... get it?...)

How not to practice law: file fake court orders

 It has been a while since I last posted a story in our running category of "how not to practice law" in which, as the name suggests, we take a look at dumb things that lawyers do sometimes.  And today's story is an easy one:  you are going to get in trouble if you write fake court orders.  Yeah!  You can't do that! Shocking, right?   You can read the story here.

More on lawyering and the use of artificial intelligence

 A few days ago I posted some links on lawyering and the use of artificial intelligence - a topic that seems to dominate the professional responsibility blogsphere lately.  Here is an update with a few more stories from last week:

A nice short article discussing the issues raised by the use of artificial intelligence called Regulating AI in the practice of law. You can read it here.

Will AI Be Writing a Lawyer’s Blog Posts?

Chat GPT: A Lawyer’s Dream Come True or Their Worst Nightmare?

Lawyer Figures Out ChatGPT Made Up Fake Cases In His Brief On Day Of Hearing

Saturday, June 10, 2023

IAALS Releases National Framework for New Tier of Legal Professionals

As you know, and we have discussed in this blog many times, a number of states have programs that recognize "non-lawyer" legal professionals who can provide certain types of legal services.  Some of these programs have been a success, while others have struggled but they continue to be part of the debate as to options for the market of legal services.

Today I am writing to report that the Institute for the Advancement of the American Legal System at the University of Denver recently released a new report called Allied Legal Professionals: A National Framework for Program Growth which includes multiple research-informed recommendations to help standardize a new tier of legal professionals across states, with the goal of increasing the options for accessible and affordable legal help for the public.  You can read the report here.  The announcement of the publication is here.

ABA Formal Ethics Opinion on "non-lawyer" assistants -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a Formal Ethics Opinion (No. 506) on a lawyer's responsibilities regarding non-lawyer assistants.  You can read it here. The abstract reads as follows:

A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.

UPDATE 6-18-23:  2Civility has analysis of the opinion here

Sunday, June 4, 2023

Judge requires lawyers to certify that they did not use AI to prepare documents filed in court

As I reported earlier this week, there has been a lot of discussion about AI and the practice of law this year.  See here for my blog posts on the subject. So, today I am writing to report that a Texas federal judge is now requiring attorneys to pledge they did not use artificial intelligence to draft their documents.  See Courthouse News, and The Hill.

Thursday, June 1, 2023

Lawyering and the use of Artificial Intelligence -- UPDATED

June 1, 2023

The Professional Responsibility blogsphere was dominated this week by a discussion of a New York Times story called “Here’s What Happens When Your Lawyer Uses ChatGPT."  TechDirt has a good summary of the story here.

In a nutshell, a lawyer used ChatGPT to do research in order to draft a brief.  The lawyer did not double check the result and it was later determined the brief contained cases/citations that were totally made up by the AI.  

The court has now issued an order to show cause against the attorney.  You can read the full order here.

Joe Patrice has a good comment on the situation at Above the Law (here), which summarizes what should be obvious:  don't blame the AI for the lawyer's conduct.  The issue is bad lawyering, not bad AI.  This other comment in Real Lawyers Have Blogs agrees.

UPDATE June 4, 2023

Above the Law has published a comment titled "Lawyers Who Used ChatGPT To Fake Opinions Are In Real Trouble".  You can read it here.

Multistate Analysis of the Ethical Rules Governing Attorneys Working Remotely

 Here is a link to a recently published short analysis of ethical rules regarding remote work.

Conference Report: Representing clients in multi-district litigation

 Multidistrict litigation, or MDL, now dominates federal dockets, impacting hundreds of thousands  of plaintiffs and routinely grappling with issues of national import. Though its rise is undeniable, its growth has also exposed, and helped to create, a series of deep cleavages regarding how best to adjudicate cases involving mass harms. Proponents tout MDLs’ procedural flexibility, efficiency, and access-to-justice benefits, while detractors criticize this procedural tool for restricting litigant autonomy, promoting unbounded judicial improvisation, and favoring wholesale settlements over substantive and procedural justice. 

In light of these competing narratives, on May 20, 2022, the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Berkeley Law Civil Justice Research Initiative hosted a small group of distinguished scholars, judges, policymakers, and practitioners to discuss the lawyer-client relationship in MDLs. . . . the Convening sought to analyze contemporary MDLs’ plaintiff-related strengths and weaknesses and to identify practical steps that judges, lawyers, or policymakers might take to address various deficiencies. 

You can read the full report here.

Thanks to the TortsProf Blog for the update.