Federal judge imposes what may be the most expensive sanction for hallucinations yet

 Last month I reported on a case that was reported as imposing significant sanctions for citing hallucinated cases and stated that the running count of cases involving courts complaining about hallucinated cases created by AI was 768.  Today the count is 901.  Go here for the full list.

I have not read every case on the list nor have I followed it closely, but if the case I reported in March was really significant because the court imposed $15,000 in sanctions to the lawyers involved, you should know that a federal judge has raised the stakes considerably.

Today, the ABA Journal is reporting on a case in which the judge imposed $110,000 in fines and attorney fees against two lawyers who filed documents filled with fake cases and fabricated citations.

That may be the larges sanctions imposed for improper use of AI yet.  

The ABA Journal has the story here.

Sixth Circuit imposes significant sanctions for citing non-existent cases

Last January I reported on a case imposing significant sanctions for citing hallucinated cases and stated that the running count of cases involving courts complaining about hallucinated cases (created by AI) was 527.  Two months later, the number is now 768 (and by the time you read this, it may be higher.)  Go here for the full list.

I am writing about this again today because LawSites is reporting (here) that "[i]n what may be one of the most significant appellate sanctions rulings yet involving fabricated case citations, the 6th U.S. Circuit Court of Appeals has imposed substantial penalties on two Tennessee attorneys for filing briefs containing more than two dozen fake or misrepresented citations."  

The lawyers involved were ordered to pay $15,000 each in fines and to jointly pay for their opponents' full attorney fees on appeal plus and amount equal to double their costs.

Pam Bondi wants to have the right to prevent states from conducting investigations into unethical conduct of DOJ lawyers

 In what highly respected legal ethics scholar Stephen Gillers has called “a DOJ powergrab,” last week the Department of Justice proposed a new federal regulation to grant Attorney General Pam Bondi the right to unilaterally interfere with state bar ethics investigations into current and former government lawyers. The rule is contrary to established law and should not survive scrutiny, but, as Joe Patrice has eloquently stated, “like a lot of this Justice Department’s shenanigans, the rule wasn’t really intended to hold up under scrutiny, it just needed to assert a big, splashy threat that might silence anyone who doesn’t want to have a protracted fight with the Department of Justice.”  Go here for Patrice’s thoughtful analysis. 

Aside from the fact that the Justice Department has zero credibility when it says it would conduct a serious investigation regarding the conduct of any of its own lawyers, the proposed rule goes against the so-called “McDade Amendment” (28 U.S.C. § 530B), which states that government attorneys “shall be subject to State laws and rules… governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Congress passed this provision specifically because DOJ tried to exempt its lawyers from state ethics rules years ago. 

For more on this story, check out the ABA Journal and The Hill. For a video comment, check out the YouTube channel "Legal Eagle" here.

What is the proper sanction for a January 6 rioter?

 What should be the proper sanction for a lawyer convicted of felony and misdemeanor charges due to his role in the Jan. 6, 2021 assault on the Capitol, who was later pardoned by the President?  

The State Bar of Georgia and a special master’s recommended that he receive public reprimand, but the Georgia Supreme Court has rejected the recommendation and suggested that the proper sanction should be disbarment.  “[I]t is hard for us to see how anything less than disbarment can be accepted here,” the court wrote in a unanimous opinion. The matter was remanded for further proceedings.

The ABA Journal has the story here.

Yet another case on improper use of AI in litigation

 The running count of cases involving courts complaining about hallucinated cases (created by AI) is now at 527.  (See here.)

Based on a recent one, Stacie Rosenzweig (in her post "We Should All Know Better By Now, But We Don't") reminds us of some basic rules of thumb:  

If you’re going to use AI to generate arguments or citations, verify every single one of them with a trusted legal research source.

Second, if despite your best efforts something sneaks through, fess up as soon as you learn about it, and move to correct or withdraw the pleading. Chances are, the opposing attorney won’t object.

Third, if you’re a supervisor, get a good AI policy in place before things go sideways, and train your junior attorneys and staff. And, if you’re a supervisor on a specific matter, . . . it may be time to trust less, and verify more.

And, it’s definitely time to trust less, verify more if your subordinate has already shown they’ve had problems with misuse of AI. . . . 

Finally—it’s not just this case. I’m seeing more of a duty of opposing counsel to detect, and to report, bad citations (AI or otherwise) rather than wait for the court to find them out. It’s always been a best practice to read each case cited by the opposing party (at least, each case substantively cited) so you can adequately respond to their arguments; finding out that a case doesn’t exist or that it’s not at all reflective of why it was cited shouldn’t be too much of a lift.

By the way, the sanctions imposed in the case were harsh:

The court declined to impose monetary sanctions. Instead, all three plaintiff attorneys were disqualified (and the whole case was stayed to allow the plaintiff to find new counsel), and they were ordered to provide copies of the order to the presiding judge in every pending case in which they were counsel of record (and the clerk was directed to send a copy of the order to the Mississippi regulatory authorities). The firm was directed to perform an audit, and, in the paragraph that made me shudder the hardest, the associate was ordered to seek withdrawal from every case in which she was appearing before that judge, and was forbidden from appearing in any other case before that judge for a period of two years.

And then think about what these sanctions meant for the clients and the firm.  Clients in unrelated cases lost their choice of counsel and the firm was forced to explain to other clients why that was the case.  I wonder if the clients will take their business elsewhere and whether the attorney will be seeking a new job... 

Sanctions for citing fake cases (created by "AI")

As I am sure you know, there are many court opinions out there now imposing sanctions on lawyers for filing documents with fake citations created by AI.   (For an updated list you can check out this helpful website).

For that reason, a story on yet another court imposing sanctions is not that remarkable, but I want to point this one out to remind you that sometimes the court will order the lawyer (not the client) to pay the sanction.  

As reported in the ABA Journal, in this case, a lawyer and a law firm (in Illinois) were ordered to pay nearly $60,000 for filing a court document that included a fake citation. The lawyer himself, personally, out of his own pocket, was ordered to pay $10,000. The firm was ordered to pay $49,500.

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.

One year suspension for tax evasion

 Cases involving discipline for attorneys engaged in tax evasion or tax fraud are not uncommon.  However, the decisions vary considerably when it comes to the sanctions imposed.  So, in case you are doing some research on the inconsistent treatment of this issue among jurisdictions, here is the latest I have seen on it.  The Legal Profession Blog is reporting on a case from New York in which the court imposed a one year suspension for, among other things, failiong to file state and federal income tax returns for the preceding eight years and to pay his state and federal tax liabilities.  You can read more about it here.

New Jersey to allow disbarred lawyers to apply for reinstatement after five years

What is the worst type of (or highest level of) discipline?   If you thought "disbarment" you would be wrong.  The correct answer is permanent disbarment, because in most jurisdictions disbarred lawyers can be reinstated after a period of time.  

And last week, New Jersey decided to join that majority of jurisdictions.  As reported in the ABA Journal, according to a recent order of the state's supreme court "New Jersey lawyers who are disbarred will in most cases be allowed to apply for reinstatement after five years."  New Jersey now joins 41 other states and the District of Columbia in allowing disbarred attorneys to seek readmission. 

Having said that, the NJ supreme court retained the authority to impose permanent disbarment in future egregious cases and to block successive applications for reinstatement for particular attorneys on a case by case basis.  

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

June 29, 2024

 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.

UPDATE 8/5/24: Hunter Biden's lawyers reply to the court's order to show cause.  Here is the full story.

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.

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.

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.  

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

 LawSites has the full story here.

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.

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.

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.  

Should the lawyers who plead guilty in cases related to election fraud be disciplined despite their plea agreements saying their crimes did not involve "moral turpitude"?

 If you have been paying attention to the news, you know by now that three lawyers have pled guilty in the RICO case in Georgia claiming that 19 defendants participated in an attempt to overturn the results of the last presidential election.  One of these - perhaps the lesser known of them - was Jenna Ellis who worked with Rudy Giuliani to press state legislatures to overturn the 2020 election results.  (The others are Sydney Powell, and Ken Chesebro).  

Ellis is an interesting figure in all this.  Earlier this year she admitted to having lied about the elections in order to avoid harsher discipline in Colorado but then promptly proceeded to lie about it in the media. (See here.)  And she has flipped-flopped about her opinion on Trump several times.  And now, she tearfully admitted to the charges in Georgia.  But she has no credibility when she says she regrets her conduct.

I am writing about this today to comment on the fact that the plea bargain agreements related to these lawyers have included explicit statements that the district attorney does not consider the crimes to be "of moral turpitude."  

Aside from the fact that I have never truly understood the concept of moral turpitude and how it is applied by courts and disciplinary agencies (go here and scroll down for my comments on this over the years), the specific use of this language in the bargaining agreements is meant to help the lawyers keep their law licenses despite their convictions.

I understand that this was probably a condition negotiated by the parties in order to get the defendants to  plead guilty and to cooperate with the prosecution.  Yet, I wonder how necessary it was to get that result.  

And, more importantly, I disagree with the suggestion that the lawyers should be allowed to keep their licenses.  Thus, I hope that the appropriate disciplinary agencies do not feel they are obligated to allow them to do so.  It is important to understand that the Georgia DA and the judge in the case can say whatever they want about moral turpitude, but they cannot tell the disciplinary agencies in other jurisdictions how to regulate the practice of law in their jurisdictions nor who to admit or disbar.  

Thus, the fact that the plea agreement says the crime committed wat not one of moral turpitude should not be a bar for a local disciplinary agency to bring disciplinary procedures against a lawyer for having violated a rule like Model Rule 8.4(b) which ways it is misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

All of these lawyers have violated this rule and should be properly disciplined for it.  Ellis not only violated the rule, she then lied about it to the media, thus violating another rule (about engaging in dishonest conduct).  

For coverage on the guilty plea by Jenna Ellis, you can check out the following:

Above the Law

Politico

MSNBC

NPR

The Hill

Jurist

Politico

Lawyer fined nearly $20,000 for obnoxious conduct in violation of rules of procedure during deposition

 I often complain that judges do not do enough to discourage misconduct during discovery, so today I am happy to report that at least one judge is doing her part.  

As reported in the ABA Journal (here), last month federal judge U.S. District Judge Stephanie L. Haines of the Western District of Pennsylvania sanctioned a lawyer imposed a sanction of nearly $20,000 for his conduct during four depositions last year.  The only question I have is why did it take a year for the judge to impose the sanctions, but I guess I'll let that one go for now.  According to the story, the lawyer was fired from his firm soon after the fourth deposition.

You can read the opinion here.