New Year's resolution for the legal profession

 The Chicago Bar Foundation has published a short article called "2024 Resolution for the Legal Profession: Back to the Future, With a Twist."  You can read it here.

Legal Ethics Year in Review Program

 Happy New Year, everyone!  And, as you know, this is the time of the year when we see "top ten lists" and "year in review" programs and podcasts.  

One of my favorites is the Legal Ethics Year in Review Program put together by Lucian Pera (of Adams & Reese LLC) and Trisha Rich (of Holland & Knight LLC).  They run down their top ten stories (or topics/themes) of the year and very quickly summarize the issues and provide helpful references and materials.  Their programs are always both informative and entertaining and this year's was no exception.  I actually wish they would make them a little bit longer so there could be more of a discussion at the end.  

In any case, if you missed it, go watch the program by clicking here, and put yourself on their mailing list so you can attend next year's program when it is offered live.

California’s New Duty to Report Treason, Insurrection and Sedition

 Earlier this year, I reported that California adopted a version of Model Rule 8.3 which, subject to some exceptions, requires disclosure of misconduct by other attorneys.  (See my posts here and here.)

But I did not know until now that California also adopted, by statute, another duty to disclose.  Thus, again subject to some exceptions, Bus. & Prof. Code section 6090.8, effective January 1, 2024 imposes a duty on lawyers to disclose if another lawyer has conspired to engage in or has engaged in "seditious conspiracy," "treason" or "rebellion or insurrection."

The new provision is obviously a reaction to the criminal and disciplinary cases brought around the country against lawyers who assisted former President Trump in his efforts to overturn the 2020 election.  In California, for example, John Eastman is currently facing disciplinary charges for his role in this effort. 

Over at California Legal Ethics, ethics lawyer David C. Carr discusses the implications of the new provision.  You can read the article here.

Florida Bar’s Board of Governors votes to remove the word “zealous” and its derivatives from the Florida Bar Rules

 The Lawyer Ethics Alert Blog is reporting that the Board of Governors (BOG) voted at its December 2023 meeting to remove the words zealous, and its derivatives from the Florida Bar Rules.  

As you know, lawyers often "cite" the principle that there is a duty to represent clients zealously.  However, it is interesting to note that the word "zealously" or any variation of it is not found anywhere in the text of the ABA Model Rules (maybe there is a reference to it in a comment somewhere, but not in the text of the rules).  Some states have incorporated it in their own rules, but it is not in the Model Rules. 

So, it is interesting to see that Florida is taking it out of its rules.  And why, you may ask?  The answer should not be surprising:  because lawyers often used the argument of a duty of zealous representation as an excuse to push the envelope and engage in questionable, and often improper, conduct, particularly in litigation.  

And that is exactly what the Florida resolution states. It proposes a new comment to be placed in the Preamble of the rules that states, in part, that "[z]ealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.” The comment would also refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, which states, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

In the end, if the proposed revisions are approved by the Florida Supreme Court, Florida lawyers will be put on notice that unethical conduct under the guise of “zealousness” is a potential violation of the Florida Bar Rules.

Sixty years After Gideon v. Wainwright, there still a need to bridge the gap in access to justice

 This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, in which the Supreme Court held that states must provide counsel to people who cannot afford an attorney in criminal cases.  The principle was later extended to cover misdemeanor charges and delinquency proceedings.  Yet, as discussed in a recently published short article in The Hill, there is no question that access to public defense in the United States remains elusive and unequal.  You should read the article here.

Sadly, this is not the first time I post this exact same sentiment.  Ten years ago the same issue was discussed in various articles "celebrating" the 50th anniversary of the decision in Gideon.  I posted comments here, and here.

NPR program on recent cases that raise questions about the ethics of using AI in the legal system

 To listen to the program, go here, where you can find a written transcript of it also.

How not to practice law: use of AI to prepare a document, then (and this is the important part) don't check it -- UPDATED

Sunday, December 24, 2023

This is old news by now, but in case you missed it.  Michael Cohen's lawyer was all over the news recently because he made the same mistake as the other lawyers in New York that everyone was talking about a few weeks ago.   They used AI to prepare a legal argument - which is not wrong per se - but then they failed to check the finished product - which is.  They all neglected to check their work!  

Whatever program they used to prepare the work, it generated (or as they now say, "hallucinated") cases that did not exist, complete with made up citations and quotes.  Big mistake!  The story was picked up by many different sources.  Here are just a few:

Lex Blog

Above the Law

Politico

The Hill

UPDATE 12-30-23

Several news sources are now reporting that the original mistake of citing "hallucinated" cases was Michael Cohen's and not his lawyer's.  Apparently, he supplied the information to the lawyers who then used it.  But that does not excuse the work of the lawyers in not checking it, which is the key part of the story.  Double check your work!!    For the latest, you can check: 

Courthouse News Service

eThinking

NPR

Court imposes sanctions for instructing client not to answer questions during deposition

 Long time readers of this blog have heard (or have read, rather) me complain often that courts do not do enough to discourage misconduct during discovery in civil trials.  But every now and then I am happy to report a case that comes along and shows some judges are doing their part.  Today is such a day.  The Legal Profession blog is reporting on a case out of the District of Columbia Court of Appeals in which the judge reprimanded a lawyer for wrongfully instructing a client to refuse to answer questions during a deposition -- a practice that is not uncommon but that often goes unchallenged allowing lawyers to get away with it.  I am glad to see that did not happen in this case.  You can read more about it here.

Recent study in Ohio finds nearly 100 prosecutors who were found to have violated their duties, but none were sanctioned

NPR has published a long, disturbing article, titled "Ohio prosecutors broke rules to win convictions and got away with it" (see here) detailing the results of a study that found that state courts determined that about 100 prosecutors across Ohio had violated standards meant to preserve a defendant's civil rights in criminal trials and yet the state Supreme Court has not imposed sanctions on any of them.  The study also found, among other things, that (1) most misconduct resulted from failing to disclose evidence and making inappropriate comments in closing arguments, (2) in nearly 80% of the cases, the misconduct was ruled not egregious enough to warrant a reversal, (3) none of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court and (4) all of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

You should read the full article here.  

Lawyers for Kari Lake may face discipline for frivolous cases challenging election results

The Hill recently reported (here) that a committee overseeing attorneys in Arizona has found probable cause that lawyers who represented Kari Lake in election cases should face discipline.  Each one of the lawyers has been already been sanctioned by Arizona judges for cases where Lake challenged the election results after she lost to Democratic Gov. Katie Hobbs in 2022.  The Attorney Discipline probable cause order now allows the state bar to formally file complaints against the lawyers and pursue further actions. 

Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence

 Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence.  Lawyer Ethics Alert Blogs has the story (and the opinion) here.

Court of Appeals for the Fifth Circuit considers adopting rule to regulate use of AI in generating legal documents

Yesterday I reported that the Colorado Supreme Court suspended a lawyer for using artificial intelligence.  Also, back in June I reported that a Texas federal judge began to require attorneys to pledge they did not use artificial intelligence to draft their documents.  See here.

I am writing about this again today because Law Sites is reporting that "[i]n what it appears would be a first for a federal circuit court, the 5th U.S. Circuit Court of Appeals is considering adoption of a rule change that would require lawyers and unrepresented litigants to provide a certification regarding their use of artificial intelligence in preparing court filings.  Lawyers and other filers would be required to certify either that they had not used AI in drafting the document or that, if they did, “a human” had reviewed the document for accuracy."

Go to LawSites for the full story.

Colorado imposes sanctions for use of AI

Last summer I posted a few times about a case in New York in which two lawyers got in trouble for using AI to write a brief which the court later determined included invented cases and cites.  See here and here. The lawyers ended up having to pay fines of $5,000 each.

Now comes news that the Colorado Supreme Court has suspended a lawyer for 90 days for his use of Chat GPT in composing a brief which contained fictitious caselaw.  Go here for the full story.

For all my posts on artificial intelligence go here and scroll down.

Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice - UPDATED

November 23, 2023

Long term readers of this blog will remember the saga of the company "Do Not Pay" which at one point claimed to provide the services of the first robot lawyer, but was later the subject of an investigation that exposed it did not live up to many of its claims.  Eventually, a law firm filed a class action claim against the company claiming that it was providing legal services in violation of the Illinois statute on the unauthorized practice of law.

If you want to refresh your memory on the details of the original story, and to review how we got to this point, go back and check out my posts from January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

Today I am writing to report that, as the title of this post points out, the court in the case alleging unauthorized practice of law agreed with DoNotPay, holding that the plaintiff law firm had failed to establish standing because it had failed to allege that it has suffered any concrete injury.

For more details on the story and links to the court's order and more, go to LawSites, here.

UPDATE 12/1/23: The decision has generated some commentary.  Here are a few links

In Case of ‘Real Lawyers Against A Robot Lawyer,’ Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice (Law Sites)

Judge tosses UPL suit against 'robot lawyer' DoNotPay, saying law firm plaintiff was not harmed (ABA Journal)