Wednesday, January 31, 2024

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.

Tuesday, January 30, 2024

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. 

Monday, January 29, 2024

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.

Sunday, January 28, 2024

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

Saturday, January 27, 2024

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.

Saturday, January 20, 2024

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?

Friday, January 19, 2024

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.

Wednesday, January 17, 2024

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.

Tuesday, January 16, 2024

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.

Sunday, January 7, 2024

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.

Monday, January 1, 2024

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.