Court Kicks Lawyers Off Case After Finding Fake AI Cases In Filings

 As more and more cases of fake citations, and faulty use of AI in lawyering pile up, judges may be ready to start imposing stronger sanctions.  Read the story here.

Tips on the rule that prohibits communication with a represented person

 Michael Kennedy, bar counsel for Vermont, has published some helpful tips on the rule that prohibits communication with a represented person here.

Yet another case of sanctions for relying on AI to write briefs (resulting in cites to cases that do not exist)

Two attorneys who were representing MyPillow CEO Mike Lindell in a defamation case in Denver have been fined $3,000 each as sanctions for submitting an inaccurate, AI-generated brief to the court in April.  Go here for the story.  

Above the Law has more on the story here, arguing the sanction was too low.

NPR has a comment here arguing that the case serves as a stark warning.

ABA Committee releases new Formal Opinion on discrimination in the jury selection process

 The ABA Standing Committee on Ethics and Professional Responsibility has issued  a new Formal Opinion: ABA Formal Ethics Opinion 517 - Discrimination in the Jury Selection Process.  

If you recall, paragraph [5] of the comment to Rule 8.4 states that "[a] trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)."  For this reason, the opinion attempts to address the following questions: 

Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)? Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law? 

The opinion then proceeds to address the questions and concludes that Rule 8.4(g) does NOT prohibit a lawyer’s discriminatory but lawful exercises of peremptory challenges, but also that 

A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. 

You can read the full opinion here. 

How not to practice law, Trump lawyers edition - UPDATED

 It has been a long time since I posted an entry into the long running series of "how not to practice law" featuring stories illustrating dumb things lawyers do that they should know better not to do...  So here we are today with a Trump edition, courtesy of the team of lawyers representing [sic] Trump in a case in Iowa against a pollster.  

In a nutshell, aside from the fact that the case is almost certainly frivolous, the story of the litigation reads like a script for a law related blooper reel.  You can read the details of the story in Above the Law here.

UPDATE, July 6: TechDirt has an update on the lastest details on this developing story here.

Rudy Giuliani's lawyers call it quits

 Well that took longer than I expected but it is not surprising.  Rudy Giuliani's lawyers have been trying to cover for his obvious attempts to avoid complying with court orders for a while and now that the judge finally threatened issuing an order for contempt of court, the lawyers apparently decided it was not worth to stick their necks out for their delinquent client.  

The specific reason or reasons for the two lawyers’ requested withdrawals aren’t fully clear because the court filing asking for withdrawal is partially redacted, but the lawyer's cited a rule equivalent to Model Rule 1.16(b)(4) which states that a lawyer may withdraw when the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement and another local rule that states that the lawyer can withdraw when the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively.  

I assume these allegations are based on the fact that Giuliani tried to hide assets and kept avoiding complying with court orders. And let's not forget that he lost the defamation case because he refused to comply with discovery in the first place...

You can read more about the adventure it is to represent a client like Rudy and why it is better to step away from him here: 

The Hill

Law & Crime

MSNBC

Above the Law

By the end of the week, Giuliani had found a new lawyer and relinquished some of his property as obligated by the court's order.  The Guardian has that part of the story here.

Judge threatens to sanction Hunter Biden’s attorneys for what the judge called "false statements"

The Hill is reporting that a federal judge threatened to sanction Hunter Biden’s attorneys for making “false statements” in their motion asking to dismiss his criminal charges in California.  Go here for the full story.

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.

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

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.

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)

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.

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?

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.

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.  

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.

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.