Illinois Supreme Court Amends Rules 8.4(j) and 5.1 Addressing Harassment and Discrimination

About a month and a half ago I reported that Illinois had finally adopted a version of Model Rule 8.4.  See here.  Illinois Lawyer Now has more on the story here.

Federal prosecutor accused of withholding evidence in Trump protest cases

The Washington D.C. Office of Disciplinary Counsel (ODC) has accused a former federal prosecutor who oversaw more than 200 cases related to protests of former President Trump’s 2017 inauguration of withholding evidence and of attempting to edit or obscure video evidence used against the defendants that otherwise could have been used to clear them of criminal charges.  The Hill has more on the case here.

New trial ordered for criminal defendant after attorney failed to provide effective assistance of counsel and failed to seek to suppress evidence

 Here is an interesting fact scenario.  A criminal defense lawyer does not effectively represent a suspect during a police interview, and the police obtains information useful to the prosecution.  The lawyer then realizes that he should try to fix the problem but doing so would require him to file to suppress evidence from that interview on grounds of ineffective assistance of counsel.  But this would mean the lawyer has to admit their own ineffective assistance which would be self-incriminating (and would probably require the lawyer to testify in a fact finding hearing).  So the lawyer does not file to suppress the evidence and continues to represent the defendant.  After the defendant is convicted, represented by a different lawyer, the defendant asks for the conviction to be overturned.  What should the court do?

In a recent case with similar facts, the Massachusetts Supreme Court upheld an order for a new trial. Go here to read about the case and access a link to the opinion.  The Legal Profession Blog has a summary and some key passages here.

How not to practice law: commit voter fraud

A Trump supporter lawyer who was convicted of two counts of election fraud, based upon evidence establishing that he had voted in both Florida and in Ohio in the 2020 presidential election as well as in the 2022 general election and who was later suspended from the practice of law in both Ohio and Florida, was more recently disbarred in New York.  For more on the case, go to the Legal Profession Blog here.

Judge dismisses Rudy Giuliani’s bankruptcy proceeding

July 12, 2024

Bankruptcy Judge Sean Lane has dismissed Rudy Giuliani’s Chapter 11 bankruptcy, removing a shield that for six months froze two Georgia election workers’ efforts to collect their $148 million defamation judgment. In the ruling (available here), the judge commented on Giuliani’s “continued failure” to provide financial transparency. 

Giuliani's case involves the interests of the two Georgia election workers who won a defamation claim against him, in addition to those of Dominion Voting Systems, and Giuliani’s former assistant Noelle Dunphy. The latter two have pending lawsuits, while the Georgia workers have an enforceable judgment for many times the value of Giuliani’s assets. 

Because they’re not all going to get the money they seek from Giuliani, the ones with perfected claims would like to attach all his assets now.  Dominion and Dunphy have argued that the case should remain as a Chapter 11 bankruptcy claim, while the Freeman plaintiffs urged the court to dismiss the case entirely.

And that is exactly what the judge did, leaving [for the moment] nothing for Dominion, whose defamation suit is still in discovery, or for Dunphy, who is suing Giuliani in state court for assault and various labor violations. Of course those parties would prefer that the court retain jurisdiction and adjudicate their claims while a Chapter 11 trustee babysits the debtor to ensure he doesn’t loot the estate.  I imagine appeals will follow.

For more on the story you can check:

The Hill 

Above the Law

MSNBC

Law & Crime (‘Continued failure’: Rudy Giuliani has bankruptcy case dismissed by angry judge who points out numerous ‘troubling’ discovery violations)

Courthouse News Service (Judge chides Rudy Giuliani for ‘troubling’ conduct, tosses NY bankruptcy case)

The Guardian

Above the Law (Rudy Giuliani Falls Ass Backwards Out Of Bankruptcy)

Jurist

Brady violation allegation leads to dismissal in case against Alec Baldwin

As reported in The Guardian (here), "Alec Baldwin’s involuntary manslaughter trial came to a dramatic end on Friday, after a New Mexico judge dismissed the case against the actor and found that the state had improperly withheld evidence related to how live rounds of ammunition ended up on the film set where the cinematographer Halyna Hutchins was fatally shot.  Just days after courtroom proceedings had begun, Judge Mary Marlowe Sommer ruled in favor of the defense and agreed that the charges against Baldwin should be dropped, finding that the state had concealed evidence that would have been favorable to the actor. The dismissal, made with prejudice, puts an end to the involuntary manslaughter case against Baldwin."

Law & Crime has more on the story here.  According to this account, the motions hearing "eventually spiraled into something like a Russian nesting doll of discovery violations" and near the end of the hearing it was revealed that the "first chair" prosecutor — the one who gave the prosecution’s opening statement during the trial — had resigned.

Now the question is whether the prosecutor(s) will have to face discipline for their conduct.  I guess we will have to wait and see.  

MSNBC has more on the story here.

New Hampshire expands the program that allows non-laywers paraprofessionals to provide some legal services

 Long time readers of this blog may remember old posts about how some states have slowly approved regulation to allow “non-lawyer professionals” to provide legal services.  The terminology used to describe the professionals and the types of services varies quite a bit, but the idea is to allow certain trained professionals who are not admitted to the practice of law to provide some services that would otherwise be considered to be exclusively reserved for lawyers.  Obviously, the idea is to provide more (and perhaps less expensive) access to legal representation given that studies have always shown that there is a need for such access.

The success of these programs has also varied, with at least one eventually being abandoned, but that would be the subject of a different conversation.

I am writing today to report that, as of last month, New Hampshire extended such a program for another five years and expanded the “jurisdiction” of the professionals allowed to participate in it to include all state Circuit Courts.  Eligible paralegals under the program may appear in cases related to family law, domestic violence, stalking orders of protection, and landlord-tenant cases.  The new statutory language can be found in the New Hampshire Statutes, Title XXX: Occupations and Professions, Chapter 311 (Attorneys and Counselors), Section 311:2a (Legal Services by Paraprofessionals).  You can find a link to the section here, although as of the time of this post, the section’s language has not been updated with the newly approved statute.  The original statute (as of now) is here.  It is possible that some time soon you will be able to use this same link to see the new language, but as of now this link takes you to the statute that went into effect in 2023.  If you want the new version, look for the language adopted in June 2024.

Thank you very much to Jonathan Teller-Elsberg for the update!

Rudy Giuliani is, finally and officially, disbarred in New York

In a move that I suspect surprised no one, Rudy Giuliani was been disbarred in New York.  You can read the full order here.  It concludes, in part that, 

Contrary to respondent’s allegations, there is nothing on the record before us that would permit the conclusion that respondent lacked knowledge of the falsehood of the numerous statements that he made, and that he had a good faith basis to believe them to be true. On the contrary, as the Referee properly found, the 16 acts of falsehoods carried out by respondent were deliberate and constituted a transparent pattern of conduct intended and designed to deceive. More specifically, as the Referee aptly described, respondent “told numerous lies in the numerous forums all designed to create distrust of the elective system of our country in the minds of the citizens and to destroy their confidence in the legitimacy of our government.” Undeterred, respondent went as far as to attempt to deceive this tribunal by his numerous inconsistent statements before the Referee and the AGC.

 As you probably recall, Giuliani was suspended from practice in New York in 2021 pending his disciplinary proceeding (see here) and later recommended for disbarment in Washington Dc (see here).  The proceeding took a long time to unfold in New York but the decision was finally announced this week.  

For all my posts about the claims against Giuliani, go here.

You can read coverage and commentary about the disbarment in New York, here:

The Hill, Politico, Law & Crime, Courthouse News Service, MSNBC, The Legal Profession Blog

UPDATE July 12, 2024:  Giuliani's hearing to determine if he should be disbarred in Washington DC was held recently.  For a report, go to Law & Crime, here.

Emerging Trends in Legal Tech

 The Legal Talk Network has a new article with links to podcasts on emerging trends in legal tech here.

New article on the changing landscape of the regulation of the profession

Over at Jotwell, Nora Freeman Engstrom has posted a short review of a new article by Lucian Pera called Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, 74 S.C. L. Rev. 801 (2023).  As she points out, the article 

"depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward."

You can read the review here.

You can read the full article here.

Hunter Biden’s law license suspended in DC following gun conviction

 It is never surprising to hear that a lawyer's license is suspended following a conviction, but that usually happens as a decision on the merits in a case for discipline.  As reported by The Hill, however, Hunter Biden's license has been suspended pending the proceeding.  This means that the suspension is an interim suspension, until it is decided whether he will be disciplined.  Although interim suspensions of this type are not unheard of (that is what was imposed on Rudy Giuliani in New York, for example), they are not that common.  Usually, lawyers are allowed to continue to practice until a disciplinary proceeding is decided.  

The Hill has to full story here.

New Legal Ethics Opinion Cautions Lawyers: You ‘Must Be Proficient’ In the Use of Generative AI

 As I am sure you know by now, the ABA amended the comment to Model Rule 1.1 some years ago to include a new paragraph [8] that says "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."

And thus the duty to be competent about "technology" was born.  Now adopted by a majority of jurisdictions, as the comment says, lawyers have a duty to learn about and to stay up to date with developments in "technology" that relates to the practice of law.  

Accordingly, there are a number of ethics opinions out there on this matter and LawSites is now reporting (here) on a new one specifically on the use of generative AI.  

The opinion was issued by the Pennsylvania Bar Association and Philadelphia Bar Association and it makes one point very clear: lawyers are required to maintain competence across all technological means relevant to their practices, and that includes the use of generative AI.

You can read the opinion here.

How not to practice law: Show up drunk to your hearing on drunk driving

 Here is the latest in our "how not to practice law" series.  As reported in Law & Crime, the Colorado disciplinary board recently suspended an attorney’s law license for six months after she pleaded guilty to her third DUI charge in 18 months — and she reportedly showed up drunk to her sentencing.  You can read more about the story here.

New Podcast and Video Vignettes

 The ABA recently posted a new podcast on issues related to Model Rule 1.9 (on duties owed to former clients.  You can listen to it here.

Meanwhile, for those of you who like to use video "vignettes" when teaching Professional Responsibility, there is a new collection produced by Scalia Law School.  If you are interested, here is some information about the project.  You can access the vignettes here.

Former Trump campaign lawyer Jenna Ellis is back in the news, this time for facing charges in Arizona

 The last time we heard from former Trump campaign lawyer Jenna Ellis she had just been suspended for 3 years for conviction related to her role in the attempt to overturn the 2020 presidential election.  See here.

She is back in the news today, this time for pleading not-guilty to forgery, fraud and conspiracy charges related to alleged efforts to overturn the 2020 election results in Arizona.  See here.

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.*  When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.

This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged."  The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.

The order was affirmed in an opinion (available here) that is about seven sentences long.  It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."  

So, going back to our initial question:  in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents.  That much is clear.  But nothing else is, and the incident raises a number of interesting question not addressed by the court.

First of all, why does the court refer to the documents as privileged?  The court refers to the documents in question as "corporate files."  What were these documents?  If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake.  But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.

Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else?  The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it). 

The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.

And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss.  It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake.  Could the lawyer be subject to discipline for this?  In theory, Yes; absolutely.  But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.  

Could the lawyer be liable in tort for negligence?  Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance.  Lucky for the lawyer!

 I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.

________________

* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.

Illinois adopts a version of Model Rule 8.4(g)

Back in November 2023 I reported that the Illinois Supreme Court Rules Committee held a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  You can read my comments about the hearing and the proposal here.

Yet, I had not seen anything about the proposal since then.  So, I was very surprised when I read in Faughnan on Ethics that the proposed amendment was officially adopted and that the new rule would go into effect in July.  See here.

I say I was surprised not because I was surprised to hear that the new rule was adopted but because I have not seen it reported anywhere here in Illinois! 

If you are a long time reader of this blog you know that I have criticized the Model Rule and the versions of the rule adopted in some other jurisdictions for being vulnerable to attack under First Amendment principles.  The adopted language in both the rule and its comment in Illinois is not as robust as the rule adopted in New York, but it is not bad. 

The original proposal included explicit language in the text of the rule itself stating that the rule would not apply to Constitutionally protected speech or conduct.  Unfortunately, that language was deleted from the rule and moved to the comment.  

Another issue with the adopted language is that while the text of the rule states that it is limited to conduct "in the practice of law", the explanation of what "in the practice of law" means included in the comment is the same used in the ABA Model Rule's comment to describe conduct "related to the practice of law" which is a broader concept.

We will have to wait and see how the rule is applied and interpreted, and whether it will get challenged as others have in other jurisdictions. 

The new Illinois Rule appears in Rule 8.4(j).  You can see a redline version here, and a clean version here.

As expected, the District of Columbia Board on Professional Responsibility has recommended disbarment for Rudy Giuliani

If you are a long term reader of this blog you know that I have been following the cases against many of the lawyers for the Trump administration, the most famous of whom is probably Rudy Giuliani.  And, you also probably know that his license was suspended in both New York and the District of Columbia while his disciplinary proceedings are pending.

Today I am here to report that, as expected, the District of Columbia Board on Professional Responsibility has recommended disbarment.  The Legal Profession blog has a summary and a link to the decision here.  

More coverage in The Hill, MSNBC and The Conversation.

Jenna Ellis suspended for 3 years for her role in the attempt to overturn the 2020 election

 Do you remember Jenna Ellis, a relatively insignificant member of the "Kraken team" of lawyers for the Trump campaign who paraded around lying about the 2020 election?  Back in March 2023, to avoid a harsher sanction, she agreed to a censure (with no suspension) in Colorado for her lying, only to proceed to lie about it in the media later on.  Some time later she was indicted in Georgian and, true to form, she also pled guilty to avoid a harsher sentence.  

After the settlement in Colorado, I wondered here why the Colorado authorities thought she deserved such a light sanction when Rudy Giuliani was likely to get disbarred for the same conduct.  After her guilty plea agreement in Georgia, I wondered here if she could be sanctioned in Colorado even if her plea agreement had been worded precisely to try to avoid sanctions.

Well, my questions have been answered.  A few days ago it was reported that Ellis has been suspended for three years in Colorado.  The Hill has the story and a link to the order itself here.  

In commenting on the story, Above the Law has a profile of Ellis here recounting her employment history and her embellishing of her resume.  (spoiler alert: she apparently lost her job as a traffic court prosecutor for incompetence, which won her unemployment benefits after an appeal held that she had “perform[ed her] duties to the best of her ability” given the “deficiencies in her education and experience” and that she had committed irreparable egregious acts in just a few of her cases. You know, not all of them; just a few...)  It is worth a quick read.

MSNBC also has the news here.

Another article on A-I and the practice of law

 In my previous post I mentioned a couple of recent posts regarding AI and the practice of law.  Here is another one:  "Is The Legal Industry Ready For AI?; It's crucial to consider these questions" published in Above the Law.  You can read the full article hereread the full article here.

Generative AI and the practice of law

As reported by Ethical Grounds, last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters, which discusses many different issues and the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI).  You can read the opinion here.

Based on this opinion, Michael Kennedy (of Ethical Grounds), has posted two new comments on issues related to generative AI and the practice of law.  In the first one, available here, he discusses why it is not necessary to amend or change current rules of professional conduct in response to the effects of generative AI in the practice of law.  In the second one, available here, he begins to address issues related to the professional duties most likely to be implicated by a legal professional’s use of GAI by discussing the duty of confidentiality.  I expect he will address other duties in future posts, so stay tuned.  

Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?

 Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?  New Jersey thinks so.  Here is the story, as reported in the Legal Profession Blog.  

ABA Issues Formal Opinion cautioning lawyers to be careful not to disclose confidential information when talking about the representation of clients

As all of you know, the ABA's Standing Committee on Ethics and Professional Responsibility frequently issues Formal Opinions to help answer questions and clarify aspects related to the interpretation and application of the ABA Model Rules.  Last week, the Committee issued a new opinion on confidentiality.  Its summary reads as follows:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation. 

Whether the conclusion is limited to listsevs is actually not that relevant since the same can be said of any instance in which a lawyer discusses a client's representation in a public setting (when addressing a group discussion, as an example in a meeting, when teaching a class, when participating in a CLE program, etc, etc.)  But the focus of the opinion seems to be on lawyers who turn to listservs to seek help on a matter they are working on for a client, a practice I can safely say is very common in at least one of the listservs I follow.

Lawyers like talking about their work, their clients and often share war stories or use their experiences as examples to illustrate issues, or to ask questions.  Often, they also ask others for help in finding support for an argument or to find sources of information on how to handle a particular issue.  The problem is that, in doing so, it is possible to disclose confidential information, which, of course, could be a problem.

Yet, although the opinion follows the logic of the broad approach to confidentiality reflected in the rules, it was quickly criticized by some, ironically, in a listserv I follow.  Likewise, Bob Ambrogi, who writes about legal technology in the website LawSites, wrote a good article in which concludes that the opinion "takes an overly heavy-handed approach to an issue it should have addressed, if at all, maybe 20 years ago. In other words it is too much, too late."  You should read his opinion here.

Micheal Kennedy also has a comment on the opinion here.

Following California, DC Court of Appeals temporarily suspends John Eastman's license pending the resolution of his disciplinary case

As reported by The Hill, the D.C. Court of Appeals has temporarily suspended the law license of former President Trump’s ex-lawyer following a similar order made in late March by a California State Bar Court.  You can read the court's order here.  Go the The Hill for the full story.

Judge rejects John Eastman's motion to lift interim suspension

 A judge in California turned down an urgent plea Wednesday from John Eastman to allow him to keep practicing law while he fights an effort to permanently revoke his license.  The judge ruled that Eastman’s motion failed to show that he no longer presents a threat to the public.

Politico has the full story here.

How not to practice law: when caught, try to alter the evidence in your computer

 April 27. 2024

As reported in Above the Law:  Confronted with an ethics investigation zeroing in on a number of different types of conduct that justified discipline, a lawyer in New Hampshire apparently thought he could get out of his troubles by destroying or altering evidence stored in his computer.  He could not; and got disbarred.  

Above the Law has the full story here. 

UPDATE 5/1/2024:  The ABA Journal has the story here.

Washington's Supreme Court Approves Three Ways To Skip The Bar Exam - Updated

March 20, 2024

The ABA Journal and Above the Law are reporting that the Washington Supreme Court has adopted alternative pathways to a law license, becoming the second state to do so in a little more than four months. The court approved three ways to bypass a bar exam, with different standards for law school graduates, law students and law clerks participating in a lawyer-tutoring program already in existence. All involve apprenticeships or internships.

You can read the different standards in the court's press release here.  The ABA Journal has more details here.  Above the Law has the story here.

UPDATE (April 13, 2024): Lex Blog has published a comment on the story here.

Disciplinary panel finds that Jeffrey Clark violated ethics rules

A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election.  This is only a preliminary ruling that starts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law.  So, stay tuned....

The Legal Profession Blog describes the process as follows:  

"The Jeffrey Clark bar disciplinary hearing in the District of Columbia has now concluded its evidentiary phase.  The Hearing Committee announced a non-binding conclusion that a disciplinary rule violation has been proved by clear and convincing evidence. It will make formal findings after receiving briefs from the parties.Those findings and conclusions will be reviewed by the Board on Professional Responsibility, which (unless it dismisses, which Disciplinary Counsel can appeal) will in turn be reviewed by the Court of Appeals."

Politico and The Hill have more details.

More on AI: recent articles

1. Jenny Brobst (Memphis Law) recently posted an article offering a look at the role of technology and ethical competency rules, vis-a-vis how tech has rolled out unevenly in the United States. You can take a look at it here.

2. Above the Law: Maybe We've Got The Artificial Intelligence In Law 'Problem' All Wrong

Several Stories about AI and the Practice of Law from this week's headlines

I think that issues related to the use of AI in the practice of law are the number 1 topic of the year and I see stories on it almost every day.  Here is a list of links from the past few days:

Exploring the Impact of AI on the legal profession (podcast) 

How Generative AI Will Improve Legal Service Delivery (Above the Law)

Judges To Generative AI: You're Out Of Order! (Above the Law)

AI Won’t Replace Lawyers -- But It Will Change How They Work (Above the Law)

AI Smarts For The Legal Sector: Preparing Your People And Content For AI (Above the Law)

California Judge recommends disbarment for John Eastman

 A California judge has formally recommended that attorney John Eastman be disbarred for his role in Donald Trump's legal effort to remain in power after losing the 2020 presidential election.  You can read the decision and order here.  The judge concluded that 

While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system.

More details and commentary here:

The Legal Profession blog

Politico

The Hill

Coutrhouse News Service

NPR

MSNBC

ABA publishes new Formal Ethics Opinion on conflicts of interest because of duties owed to prospective clients under Model Rule 1.18

 Today the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 510 on whether an attorney should be disqualified from representing a new client against a former prospective client.  Go here to access the full text of the opinion (you can download it too).  Here is the opinion's summary: 

Under Rule 1.18 of the Model Rules of Professional Conduct, a lawyer who was consulted about a matter by a prospective client, but not retained, is disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter if the lawyer received from the prospective client “disqualifying information”—i.e., information that could be significantly harmful to the prospective client in the matter. But, if the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the firm takes specified procedural precautions, then the lawyer’s conflict of interest is not imputed to others in the lawyer’s firm.

This opinion addresses the “reasonable measures” necessary to avoid the imputation of conflicts of interest under Rule 1.18.1 First, information that relates to “whether to represent the prospective client” includes information relating to (1) whether the lawyer may undertake or conduct the representation (e.g., whether a conflict of interest exists, whether the lawyer can conduct the work competently, whether the prospective client seeks assistance in a crime or fraud, and whether the client seeks to pursue a nonfrivolous goal), and (2) whether the engagement is one the lawyer is willing to accept. Second, to avoid imputation, even if information relates to “whether to represent the prospective client,” the information sought must be “reasonably necessary” to make this determination. Third, to avoid exposure to disqualifying information that is not reasonably necessary to determine whether to undertake the representation, the lawyer must limit the information requested from the prospective client and should caution the prospective client at the outset of the initial consultation not to volunteer information pertaining to the matter beyond what the lawyer specifically requests.

You can access all other ABA Ethics Opinions (dating back to 1984) here. The most recent ones are available to everyone, but the older ones are now available only to members.  So if you are not a member, download what you need now before it becomes unavailable.

How not to practice law: Yet another lawyer suspended for citing fake cases created by AI

 LawSites has the full story here.

Free Legal Research Startup Now Offers AI Generated Summaries of All State Supreme and Appellate Opinions

 LawSites is reporting (here) that a new website that provides access to legal research called descrybe.ai is focused on using artificial intelligence to provide free and easy access to court opinions and that it recently began to offer access to AI-generated summaries of all available state supreme and appellate court opinions from throughout the United States. 

The story you heard about a lawyer avoiding discipline because the state Supreme Court justices recused themselves is not what they are saying it is...

 The headline in Above the Law reads: "Convicted Lawyer Too Well-Connected To Face Discipline".  Elsewhere, the story was reported as "After most Illinois Supreme Court justices recuse themselves, Ed Burke keeps his law license".   The ABA Journal reported the story as "Convicted alderman keeps law license after recusals prevent state supreme court from acting."  You may have heard or or read something like that somewhere else, but the full story is not what it seems.

These headlines suggest that a convicted lawyer could not be disciplined even though he was convicted of a crime.  But that is not necessarily the case.  What happened is that the Disciplinary Agency asked the Supreme Court of the state for an interim suspension because he was convicted of a crime.  "Interim" means that the suspension would be in effect while the Agency decides the disciplinary case.  Some justices in the Court recused themselves and there were not enough justices left (following the state constitution) to grant the petition.

This does not mean that the lawyer will not be disciplined, or that he will avoid discipline.  The lawyer will avoid a suspension while it is decided whether he will be disciplined, but that is a different thing.  It may very well be that the disciplinary agency decides to impose discipline -- in fact, it is possible the agency will decide to disbar the lawyer.   

Now, what happens after that, I don't know.  If the disciplinary agency disbars the attorney, he then has the right to appeal to the state's supreme court.  If the same justices who recused themselves regarding the interim petition recuse themselves from the appeal, the court can't hear the appeal.  Does that end the case and the decision of the disciplinary agency stands?  That's my guess, but I have not looked into it.

New Training for Lay Legal Advocates in Arizona Aims to Expand Access to Justice Statewide

 LawSites has the full story here.

Two articles on the justice gap and legal tech

 LawSites recently published two articles with commentary about the justice gap and legal tech that are worth reading.

In the first one, LawSites's editor Bob Ambrogi argues that "[t]he justice gap in legal technology is a reflection of the justice gap more generally, and both reflect a capitalist society in which the balance of wealth and resources is wildly out of whack. But more can be done. "  You can read the article here.

In response, Jess Lu and Mark Chandler argue that "Justice tech — legal tech that helps low-income folks with no or some ability to pay, that assists the lawyers who serve those folks, and that makes the courts more efficient and effective — must contend with a higher hurdle than wooing Silicon Valley VCs: the civil justice system itself."  The article is available here.

Are you ready for some pickleball?

If you are a college football fan you know about "naming rights"...  So what used to be the Fiesta Bowl suddenly became the Tostitos Fiesta Bowl, and the LA Bowl became the Jimmy Kimmel LA Bowl, and so on.  Brands and people pay a lot of money to have their brand or name associated with a big event.  

It is a form of advertising, right?  So, would it be ethical for a law firm to buy naming rights.  It has been done for law schools, of course.  Temple University Law School (where I got my Masters degree) is now the James Beasly Law School, for example.

But have you seen a sports event named after a law firm?

And then there are "official partners" associated with leagues. Different leagues have official partners, and they promote them as such.  Thus, you have "the official car of the NFL" (it's Toyota, in case you did not know), or the "official pizza of the NFL" (as of two years ago it was Little Ceasars, which is embarrassing if you like pizza!)

But one thing the NFL does not have is an official law firm.  

So, why am I babbling about this?  Because, other than naming rights on a law school, I have never seen a law firm have naming rights or an official partnership claim with a sports league or event.  

Until now.  Enter pickleball, the self proclaimed fastest growing sport in the US today and the firm of Lerner & Rowe, which was recently announced as the "official personal injury attorneys" of USA Pickleball:

USA Pickleball, the National Governing Body for pickleball in the U.S., today announced personal injury law firm Lerner & Rowe as its Official Injury Attorney in a year-round partnership that welcomes the firm into America’s fastest-growing sport, with nearly 50 million pickleball players in the United States according to the Association of Pickleball Players in 2023.

Lerner & Rowe will serve as the Presenting Partner of the USA Pickleball Golden Ticket tournament in Mesa, Arizona this April. The firm will have a strong presence throughout the event that is expected to host 1,200 of the best players from Arizona and surrounding areas competing for their spot at Nationals. Additionally, Lerner & Rowe will continue supporting USA Pickleball’s mission in the community through community clinics, introducing underserved children to the game of pickleball and providing them with equipment to continue playing upon completion of the program.

Here is the full announcement in USA Pickleball's website.

Podcast on the right to an attorney and the role of public defenders in the criminal justice system

 Here is a 50 minute NPR program on the right to an attorney and the role of public defenders in the criminal justice system.

New ABA Formal Opinion on confidential government information

 The ABA Standing Committee on Ethics and Professional Responsibility just released a new Formal Opinion (Number 509).  The title is Disqualification to Prevent the Misuse Use of “Confidential Government Information” and the summary reads as follows:

Model Rule of Professional Conduct 1.11(c) protects a person from the misuse of certain information about the person that the government used its authority to acquire. The confidential information protected by Rule 1.11(c) is defined by the Rule as information obtained under government authority about a person which the government is prohibited from disclosing to the public or has a legal privilege not to disclose and is not otherwise available to the public. The Rule provides that a lawyer who acquired the information while serving as a government officer or employee is disqualified from representing a “private client” whose interests are adverse to prevent the confidential government information from being used to the material disadvantage of that person. The Rule applies regardless of whether the lawyer seeking to represent the private client has left government employ or office or maintains a private law practice (e.g., a part-time practice) while still in government employ or office. The Rule applies to a lawyer representing a “private client,” meaning a client whom the lawyer represents in private practice, regardless of whether the client is a public entity or private individual or entity. 

 For now you can access (and download) the opinion here.  After some time, it will be archived and available to members only, so go get it now.

ABA Working Group asks for comments on possible amendments to allow more cross-border practice

 A couple of days ago I posted that I think a lawyer in good standing in a state should be allowed to practice law in any other jurisdiction.  And just a few hours after I posted that comment, I heard that a working group of the ABA Center for Professional Responsibility has requested public comments on an Issue Paper on possible amendments to the model rules which would recognize permissible cross-border practice.

You can read the notice asking for public comments here.  You can read the Issue Paper here.  You can read more about the issue here.

Should A License To Practice Law Be More Like A Driver's License?

 Should A License To Practice Law Be More Like A Driver's License?  In a word, YES!  I do think so.  I think that once admitted in one state lawyers should be free to practice in any other state - as long as they are in good standing and comply with the state rules of professional conduct, of course.  I understand that there are lots of state variances when it comes to local rules and procedure but all lawyers are trained in how to do research and figure out the law of any jurisdiction.  

I am mentioning this today because I just saw this post in Above the Law:

"How do you only practice law within your state boundaries when we’re in a global economy and a global world? It’s kind of a preposterous concept, right? [The Association of Professional Responsibility Lawyers]’s point is, ‘Do I stop knowing how to drive when I drive outside of Maryland? And as soon as I get to the border in Virginia, I’ve forgotten how to drive?’ It doesn’t make sense."

This is a quote by Charity Anastasio, in comments given during an ABA Techshow 2024 panel titled, “One Bar License, Will Travel—Are Changes in Multi-Jurisdictional Rules on the Way?” Anastasio, who also is the chair of the ABA Law Practice Division’s Professional Development Board, went on to encourage lawyers to “[s]ay it loud, say it proud. We should be able to practice anywhere we can drive.”

US Supreme Court rejects appeal from Trump-affiliated attorneys in Michigan sanctions case

 Not surprisingly, the US Supreme Court has denied review of the sanctions imposed on Trump attorneys in Michigan.  Jurist has the story here.  

For all my blog posts related to Trump lawyers go here.

UPDATE 2-21-2024: MSNBC has the story here.

Yet another instance of ChatGPT hallucinating cases -- UPDATED

February 18, 2024

As reported in Courthouse News:  An appeals court in Missouri lambasted a pro se litigant for submitting multiple “fictitious cases” conjured up by the A.I. chat bot ChatGPT, which offered citations “that have potentially real case names — presumably the result of algorithmic serendipity,” that pointed to either non-existent rulings or to irrelevant ones. The litigant must pay $10,000 to opposing counsel for wasting their time with the “frivolous appeal.”  The court's ruling is here.  For other instances of similar conduct in Courthouse News go here and here.

UPDATE 2-20-2024:

Legal Ethics Lawyer has more on the story here.

The Marshall Project report on the practice of charging indigent defendants to pay for fees related to representation by state appointed counsel

 I have blogged before about the unfortunate reality that even 60 years after Gigeon v. Wainwright, there are still deficiencies in the process to get access to representation for people who can't afford it. See here, for example, and the section on right to counsel for lots more on the subject.

Today I am writing, unfortunately, to point out a new article in The Marshall Project on how many defendants are getting charged fees to pay for their "free" appointed counsel.  

According to the report, the reality is that legal representation by appointed counsel is rarely free. The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the costs and that more than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.  

The report focuses on the practice in Iowa, which it says takes these efforts to the extreme.  According to their investigation, not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.

Illinois Supreme Court Amends Rule to Add ‘Sexual Harassment Prevention’ to CLE Topic Areas

Two weeks ago, the Illinois Supreme Court amended a Supreme Court Rule to add “sexual harassment prevention” to the enumerated topic areas for which lawyers may receive professional responsibility CLE (PR CLE) hours.  The amended Rule 794(d)(1) now reads as follows:

Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, sexual harassment prevention, diversity and inclusion, or mental health and substance abuse.

2Civility has more details and commentary here.  LexBlog has the story here. 

How not to practice law: falsify evidence

 Here is another "how not to practice law" story.  The lessons from these stories always seem so obvious; yet here we are.  In this one, the hearing board found that the lawyer falsified some documents.  He was suspended for six months for violating Rule 8.4(c) regarding dishonesty.  The Legal Profession blog has the story here.

California standing committee on professional responsibility and conduct practical guide for the use of generative artificial intelligence in the practice of law

 I missed this report when it came out, but better late than never...  Here it is.

Will AI make the practice of law more accessible? Not everyone agrees

Saying that AI will affect the practice of law is old news.  It already has.  The question now is whether it will affect the practice of law for the better.  And the answer to that will depend on many factors including what you consider to be "better."  With that in mind, take a look at this comment titled "AI can make law better and more accessible; it won't."  

How not to practice law: Show up drunk

 This is not the first time we have seen this example of "how not to practice law," but there are two interesting questions.  In this particular instance, discussed in the Legal Profession Blog, the lawyer was charged with "attempting" to violate rule 1.1 on competence.  So my first question is:  why charge with attempt to violate a rule?  Can't we argue that appearing drunk before the court in and of itself constitutes incompetence?  

The second question is common to many cases: what should be the proper sanction?  Is it a mitigating factor if the lawyer has a health problem, mental health problem or issues with alcohol?  Is it an aggravating factor?  In this case, the lawyer also had a history of disciplinary sanctions; yet, the sanction was reduced from 90 days to 30 days.  

How to reply to negative online reviews

 The issue of how to reply to negative online reviews is not new.  If you go to the "internet" section of this blog and scroll down you will find a number of stories on it.  The most recent one is from October of last year on an Arizona Ethics Opinion that concludes lawyers can disclose confidential information when replying to negative online reviews.

Today I am writing to link to a recent post over at LexBlog that again provides basic tips on the subject.  Here it is.

How will generative AI affect digital investigations and e-discovery?

 How will generative AI affect digital investigations and e-discovery?  The ABA Journal has an answer here.

Another comment on the lawsuit by firm against departing lawyer for compensation because clients left with the lawyer

 About a week ago, I posted a link to a comment on whether employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer would violate the Rules of Professional Conduct.  The article related to a case in which a firm sued a departing lawyer seeking compensation because a bunch of clients left with the lawyer.

Faughnan on Ethics now has added to the discussion with a post on the case. 

Guide on best practices for using AI

 A couple of days ago I reported that the Florida Bar recently issued an ethics opinion on using generative AI technology in the practice of law.  

Meanwhile, noted law blogger Carolyn Elefant has published a short guide on best practices on using AI in the practice of law.  You can see her post on it here and you can download the guide here.

Articles on why the allegations against Fani Willis are irrelevant to the criminal case

 If you have been watching the news about the case against former president Trump in Georgia, you know that the defendant has argued the case should be dropped or that the prosecutor should be disqualified because of certain alleged inappropriate conduct. 

The conduct in question should be taken seriously but it is irrelevant to the case in question.

Here are two articles that explain why:

Why Fani Willis Is Not Disqualified Under Georgia Law, in Just Security, by Norman L. Eisen, Joyce Vance and Richard Painter

Defendants in the Georgia election case have no reason to complain — even if the Fani Willis allegations are true, in CNN, by Bruce Green

Florida Bar issues opinion on using generative AI technology

Last December I reported that the Florida Bar was considering an opinion on the use of AI as part of the practice law.  See here.  

Today I am writing to report that the opinion was approved and published. See here. It concludes that lawyers may ethically use generative AI technologies, provided they are careful to adhere to their ethical obligations.

For the text of the opinion go here.   Read more on the story here.  The ABA Journal has more on the story here.

DC bar authorities file disciplinary charges against pro-Trump 2020 election lawyers

 Politico has the details here.  The Legal Profession blog comments here.  The Hill has coverage here.

Do employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer violate the Rules of Professional Conduct?

 Michael Kennedy, over at Ethical Grounds, discusses the issue here.

How not to practice law: after having been told not to coach the witness, go ahead and coach the witness ... and make sure you do it while being recorded

 The Legal Profession blog recently published a summary of a recent case that earns the most recent entry in our "how not to practice law" series.  Here are the basic facts:

The parties are engaged in a "virtual trial" which is being recorded.  The court warns a lawyer not to coach a witness.  Technical difficulties interrupt the trial.  During the break, but while still being recorded, the lawyer coaches the witness in violation of the court's admonition.  The judge then watches the recording.  Guess what happens next.

Dismissal with prejudice.  Go here for the full story.

What should happen next?  Would you represent the client against the lawyer for malpractice?

Another year in review program

 About two week ago I posted a link to a year in review program that discussed the top ten stories of 2023 in legal ethics.  See here.

Now, here is another one. This is a link to the video of Legaltech Week’s year-end show, in which a panel of journalists and bloggers picked the year’s top stories in legal tech and innovation.  You can also find it on YouTube, here.

LegalTech Week, by the way is a weekly podcast on topics related to law practice and technology.

Another new year's resolution for the profession: more diversity

 2Civilty has published a short article on diversity in the profession:  Women Associates Reach Important Milestone, But Legal Profession Faces Many of the Same Diversity Challenges

How not to practice law: invent your own rules of evidence, then try to get your own made up evidence admitted under them

Here is an interesting story about a lawyer who was recently fined over $250,000 for trying to support a claim with a fake newspaper article.  According to the story, he sought to enter the news article into the record for “demonstrative purposes.”

Now, stop!  That's not how the rules of evidence work.  If the lawyer was trying to get a newspaper article admitted, it must have been to prove the fact that the article was in fact published -- which is not likely to happen because the other side would rather concede the point in order to avoid having the jury get access to the article so they can read it -- OR to prove what the article actually said, which would be inadmissible hearsay unless one of the exceptions applied.

So what does it mean to admit an article "for demonstrative purposes"?  Well, apparently, it meant that the lawyer wanted to "prove" what could have been written in some other alternative universe in which the news was what he wanted them to be -- because the article was a fake ...  in which case the proof should be inadmissible as being fabricated or, at best, speculation.

Any way you look at it, what the lawyer tried to do did not make sense and could be interpreted as an attempt to mislead the court or the jury.  

And then, as a bonus, the lawyer didn’t show up for the sanctions hearing.  

You can read the story (with links) here.

Judge orders Trump to pay legal fees to opposing side for frivolousness

 A New York judge has ordered former President Donald Trump to pay nearly $400,000 in attorneys fees to the New York Times and three reporters following a frivolous lawsuit over the publication of Trump’s finances.  You can read the order here.  You can read more about the story here.

Tennessee Court of Appeals rules that inadvertent email waives privilege

 As you probably know, the answer to the question of whether an inadvertent disclosure of privileged information constitutes a waiver of the privilege is answered differently in different states.  Here is the most recent decision I have see on the issue.

In this case, as reported in the Legal Profession blog, the Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived the attorney-client privilege.  The case is called Masquerade Fundraising, Inc v Horne, and you can read the opinion here.

A lawyer’s duties when using artificial intelligence

We start the new year with a story about what is likely to be one of the most debated topics of 2024: the use of artificial intelligence in the practice of law.  Over at Ethical Grounds, Michael Kennedy has published a very short post on "a lawyer's duties when using artificial intelligence."  You can read the full story here.

Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?

 I recently read a story that, if accurate, is disturbing.  According to the story, published in The Hill, Brigadier General Warren Wells was relieved of his position as the Army’s Lead Special Trial Counsel over a single decade-old email in which he encouraged army lawyers to do their jobs zealously and ethically.  The message, sent back in 2013, encouraged a group of fellow defense attorneys to uphold their duty to represent their clients zealously and read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

Maybe I am missing something - after all, this is a story that flew under my radar - but it seems to me that this is what we expect, and should expect, from all lawyers - particularly criminal defense lawyers, and, therefore, that getting fired over this message sends a wrong impression about what is important to the leaders of the military justice system.