John Eastman disbarred in California for role in Trump's attempt to subvert the 2020 election

 Last week, after a three-year disciplinary process, the California Supreme Court finally officially disbarred John Eastman for his role in the attempt to help Donald Trump subvert the 2020 election.  

Eastman was also suspended in Washington, D.C. pending the decision of the case, so it is likely that he will be disbarred reciprocally there soon.

Politico has more on the story here and Above the Law has a good comment here.

UPDATE 4-18-26:  The ABA Journal reports "California Supreme Court disbars attorney John Eastman for 'egregious and deceitful conduct'"

Is there a duty to report another lawyer's use of fake, AI generated citations?

 As I am sure you know, Model Rule 8.3(a), which has been adopted in some form or another in every state, holds that "[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."

So what happens when a lawyer notices that their opponent's court documents contain fake-"halucinated"-AI generated quotes or citations?  Does the lawyer have a duty to report it to the disciplinary authorities?  Evidently, it would be tactically wise to report it to the court in the litigation, and to use it against the opposition in argument, but the issue is not whether to report it to the court, the issue is whether to report it to the disciplinary authorities.

To my knowledge this question has not been addressed but a strict reading of the text of the rule suggests there is a duty to report, and a recent case in California might provide some support for that conclusion.

As reported in LawSites, 

A new decision from the California Court of Appeals adds an intriguing dimension to the growing body of AI hallucination sanctions cases, raising the question of a lawyer’s duty to detect fabricated, AI-generated citations — not in the lawyer’s own filings, but in an opponent’s.

While the court did impose a $10,000 sanction on the attorney who filed two appellate briefs containing fake citations, it also declined to award attorneys’ fees or costs to the opposing counsel, because of counsel’s failure to report the fake citations to the court or even to detect them.

That makes this what may be the first judicial decision to touch on on whether lawyers have a duty to detect and report their opponents’ AI-generated fake citations.

Of course, Rule 8.3 is based on "knowledge" and a lawyer could say that they did not know the opponents cases were fake, but then it could be argued that admitting to that is admitting to violating the duty of competence or diligence.  

So, it is possible that not only there is a duty to report, but that there is a duty to investigate and determine the validity of the opponent's sources in order to determine if the duty to report applies. 

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.

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

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.

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.

California judge issues "preliminary finding" of misconduct against John Eastman for his role in Trump's effort to interfere with the transfer of power after his loss in the 2020 election

Last week, a California judge made a “preliminary finding” that attorney John Eastman breached professional ethics rules when he aided Donald Trump’s attempt to overturn the 2020 election, a significant milestone in the lengthy proceedings over whether Eastman should lose his license to practice law.  The finding of culpability is a procedural requirement that now allows the case to move forward to the next phase, where aggravating and mitigating evidence can be introduced.   

Read more on the story here and here (this article also address the connection with the RICO case in Georgia).

Is it ethical to advise clients to delete content from social media?

 It depends.  The San Diego County Bar Association explains here.

California judge denies Eastman request to postpone disbarment litigation

As you probably know, John Eastman, one of Trumps co-conspirators in the criminal case filed in Georgia, is also facing disciplinary proceedings in California.  I reported about it here and here. 

After being indicted in Georgia, Eastman filed a motion to delay the disciplinary proceedings in California and now we know that that request has been denied.  The Hill and Politico have coverage here and here respectively.

California may make "civility" an actual duty under the Rules of Professional Conduct

I teach my students to remember the basic duties owed to clients by thinking of bad grades:  "and F, a D and a bunch of Cs."  The first two letters stand for fiduciary duty, diligence.  The bunch of Cs stand for competence, communication, confidentiality, candor, commingling and conflicts.  But I also tell them that there is another C, which is not really covered in the rules of conduct but that is important and that is "civility."

Now comes news that at its meeting on July 20, 2023, the State Bar of California’s Board of Trustees approved a proposal that calls for amendments to the Rules of Professional Conduct to make incivility a basis for discipline. 

It will be interesting to see what comes of it.  Other suggested changes are more symbolic than anything but this one would be substantive and the drafters of the amendments will have to be careful defining civility and managing the connection with offensive but constitutionally protected speech or expressive conduct.

The Legal Profession Blog has more details here. 

Comment on the newly adopted rule mandating reporting of misconduct by other lawyers in California

 Here is a comment on the newly adopted rule in California that requires disclosure of another lawyer's misconduct, a la Model Rule 8.3.  Read the comment here.

California approves rule mandating reporting of misconduct by other lawyers (similar to Model Rule 8.3)

 Last January I posted that California was moving closer to adopting a "self-reporting rule" a la Model Rule 8.3 (see here and here).

Today I am writing to report that the rule has now been officially adopted.  You can read the court order and the text of the approved rule here.

Lawyer Ethics Alert Blog has coverage here.

Ethical Grounds has a comment here.

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:  NPR, NPR audio, Courthouse News, Politico

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.

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.

Article (and video segment) on why Trump lawyer John Eastman deserves to be disbarred

 Here is a link to an article and a video discussion on why John Eastman should be disciplined.

California files disciplinary complaint against John Eastman, the lawyers for the Trump campaign credited to have come up with a plan to have Mike Pence reject the results of the presidential election

Last week, the State Bar of California filed 11 disciplinary charges against attorney John Eastman based on his efforts to help overturn the results of the 2020 election in order to allow then-President Donald Trump remain in office.  The news release by the State Bar of California is here.

According to an Op-Ed published in the Los Angeles Times, "[a]ccountability for Eastman is long overdue" because, even though he knew he was providing unlawful advice, he advised Mike Pence "to reject [Joe] Biden’s certification or otherwise tamper with it."

Here are a few links to more on this story:

The Guardian

Courthouse News Service

Legal Ethics Lawyer

MSNBC

Above the Law

Jurist

Professional Responsibility: A Contemporary Approach

Here is the text of California's proposed modified version of Model Rule 8.3

 As I reported yesterday, California is moving quickly to approve a modified version of Model Rule 8.3.  Click here for the full text of the proposal.

California moves closer to adopting a rule requiring reporting of another attorney's misconduct (a la Model Rule 8.3)

Up to now, California is the only state that has not adopted some version of Model Rule 8.3 which requires lawyers to report another lawyer's misconduct under certain circumstances.  But soon that distinction may come to an end.  

As reported in California Legal Ethics, "the California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) spent most of its meeting on Friday January 13 drafting a California version of ABA Model Rule 8.3."  

The post in California Legal Ethics explains why the rule was rejected when California adopted the rest of the Model Rules, and the argument in favor of adopting it now.  

The type of conduct that would be subject to discipline under Model Rule 8.4(g)

Two different stories from California illustrate the type of conduct that could be subject to discipline under Model Rule 8.4(g) (or similar state versions).  (Go here for my comments on the debate about this rule.)  The first one, however, would not require the adoption of such a rule because it would be subject to discipline anyway.

The first story (here) involves an attorney making a sexist comment in court, which could be subject to discipline under a rule barring conduct that is prejudicial to the administration of justice (see MR 8.4(d)).

The second story (here) involves conduct outside the practice of law but "related to the practice of law" as defined by rules like MR 8.4(g).  It involved conduct by an attorney at a law firm party/event which resulted in a sexual harassment suit filed against the lawyer.