Hi, folks,
It’s been awhile, hasn’t it?
Sorry to say, it’s going to be awhile yet, as things are busy here.
In the meantime, my January column for the Wisconsin Lawyer is out; this time, I discuss all those little conflicts life deals.
ethicking.com
Thoughts on legal ethics and law practice. Licensed in Wisconsin and Illinois, opinionated everywhere.
Thoughts on legal ethics and law practice. Licensed in Wisconsin and Illinois, opinionated everywhere.
And, Cohen Both Takes The Fall And Passes The Buck
A quick update on New York’s Second AI Hallucination case, which I originally covered a couple of weeks ago—today we learned that Michael Cohen, the client, and not David Schwartz, the lawyer, used artificial intelligence (this time, Google Bard) to generate cases that did not exist. In a declaration he submitted to the court (available starting on page 9 of this packet from the CourtListener docket), Cohen stated that (having been disbarred several years ago) he had not kept up with legal technology trends and did not understand the limitations of AI.
Well, This Is One Way To Blow Up An NDA
What Rule 4.2 does not allow, and has never allowed, is a lawyer to actually go up to a represented opposing party, at her job, and play a confidence game to get the party’s cell phone number to drive a wedge between the party and her lawyer, and then pretend to be a “neutral” third party to broker a settlement and nondisclosure agreement, requiring forfeiture of the settlement plus $1,000 per day for breaching the agreement, which also contained illegal terms.
But, that’s what longtime Trump lawyer Alina Habba apparently did in 2021, according to Above The Law, when she allegedly induced a Bedminster Golf Club server to sign a non-disclosure agreement and settle a sexual harassment claim against the Club’s food and beverage manager. This came to light yesterday, as the server sued to void the agreement and refer Habba to the New Jersey ethics regulators.
The First Rule Of Messing-Stuff-Up Club: Don't Blame the Intern
Another day, another misuse of ChatGPT. A Colorado attorney was fired from his job after using, and suspended last month for one year and one day (with all but 90 days stayed, subject to probation) because he used, ChatGPT to prepare a motion. As with other lawyers who’ve gotten into trouble for misusing AI, Zachariah Crabill filed the motion without verifying that case citations were accurate. Lo and behold, they were not.
And Now We Are Four
Today is October 24, which means this blog is celebrating its fourth birthday. It should be able to walk downstairs, know the difference between reality and fantasy, and ask a lot of questions.
I'm Getting Judgy and Judging Judges Today
Today, on this rainy Saturday, I will bring you some recent Judges Behaving Badly news. Today you get a twofer.
Common Scents In Celebrity Litigation
It’s not surprising that we’ve gossiped that Johnny Depp’s lawyer, Camille Vasquez may (emphasis in original) have directed, permitted, or otherwise appreciated a female member of the legal team going into the women’s bathroom at the courthouse and spraying Depp’s cologne into the stalls so that the opposing party, his ex Amber Heard, would smell it. This was described as “psychological warfare” (against some who accused Depp of abuse).
Wisconsin Lawyer: Now Featuring Bonus Ethicking
Check out my debut as an ethics columnist in the Wisconsin Lawyer. I’ll be writing in every other issue, and the editor is letting me snark there too. I’m just not allowed to write about politics, though I was able to sneak in a Kanye 2020 reference.
The Most Dangerous “Lawyer” In The World Is a 1L With a Westlaw Password
It’s August so that means new law students are arriving, and 2L/3L’s are starting their upper-level classes. (Anyone have anything from this blog on their syllabus? A girl can dream.)
First, welcome, new law students! I wrote a little Q&A last year that may be helpful.
Something I didn’t write about last year was a fairly common phenomenon among my classmates, and I am sure it is common among yours as well—six weeks into law school, people are going to start asking you all kinds of legal questions.
Greetings from Denver
It’s early August, which means I am at the APRL Annual Meeting hanging with my nerd friends and learning about collateral estoppel, generative AI, and interstate practice, and other important topics in legal ethics and disciplinary defense.
![It's Better to Remain Silent and be Thought a [Bad Lawyer] Than To Speak Online and Remove All Doubt](https://images.squarespace-cdn.com/content/v1/5d93821f16ea12193a39cbf7/1690906300081-RM7AW0EAIENVTAV5DQZ9/image-asset.jpeg)
It's Better to Remain Silent and be Thought a [Bad Lawyer] Than To Speak Online and Remove All Doubt
I am a bit late to report this, but in June 2023, the State Bar of Wisconsin Ethics Committee (on which I sit) released Formal Opinion EF-23-01, “Responding to Online Criticism.” In most cases, the Committee’s recommendation is “don’t.”
“Enrolled as inactive?” “Administratively Suspended?” What does that mean?
Over the weekend, we learned that the California State Bar “suspend[ed] 1,600 attorneys for violating rules set up after Tom Girardi allegedly stole millions.” At first blush, this sounds horrible—this many attorneys did what now? However, what that really means is that these lawyers neglected to comply with new trust account requirements (including registering their trust accounts with the State Bar, completing an annual self-assessment, and certifying that they understand and comply with trust account rules). As a result, they were “enrolled as inactive for noncompliance.”
Giuiliani, Here We Go Again
A committee of the District of Columbia Board on Professional Responsibility has recommended disbarment for America’s Mayor/Trump sycophant Rudy Giuliani.
Retire the Kraken!
At least part of the 2020 election is coming to a close, as Lin Wood, once highly regarded for defending Richard Jewell, but now reduced to Kraken (or perhaps Kraken-adjacent) fame, is retiring his law license. He has been mired in disciplinary and sanctions proceedings for many months, and it appears to be coming to an unceremonious end.
Farewell (?) E-banking Trust Account Rules, We Hardly Knew You
Effective today, Wisconsin trust account rules have sort-of caught up with the rest of the country, and finally acknowledge that electronic transactions really aren’t that scary.
Under the Rules applicable from 2016 to yesterday (which the Wisconsin Lawyer optimistically described as “modernizing” the way these things are handled), if lawyers wanted to accept electronic transactions (including credit cards) for advanced fees, they either had to set up a separate “e-banking trust account” or, if they wanted to use a primary trust account for electronic transactions (which has been described as an “all-in-one” trust account) comply with some additional security and insurance needs.
While I Was Out, All of the Sanctions Happened
So I was in DC last week, and, shockingly, offline for most of it. (Supreme Court photo accompanying this blog entry was a “just visiting” picture.)
We’ve missed a few things while I was gone.
Why I Didn't Say "Hi" at the Bar Conference
We in Wisconsin are in the middle of the State Bar Annual Meeting & Conference, right here in Milwaukee. The venue is a couple of blocks from my office so I’ve been and will be popping out.
So far, I’ve seen a few of my clients who I’ve never met in person before—I caught their name tag out of the corner of my eye, or recognized their voice from phone calls. I did not stop and approach them. I waited for them to approach me. If they didn’t, we didn’t talk at all.
Where does AI go from here?
Even though I’m posting this on the Saturday of a three-day-weekend, you’re probably not actually reading this until Tuesday or later. But if you’re as terminally online as I am, you’ve already heard about the lawyer who has used ChatGPT to perhaps accelerate his own obsolescence—allegedly, he used it to generate a whole brief, which was then filed in the Southern District of New York. (The docket and most of the pleadings are available on Court Listener.)
“When did you feel like you really ‘became’ a lawyer?”
This question was posed by the State Bar of Wisconsin on its social media today, and because I am on deadline and should be writing about [things that are my actual work] and instead I am procrastinating, I responded with a small treatise.
But it’s a topic I think is worthy of more exploration, particularly as new graduates get sworn in (thank you diploma privilege) and start working. There will be growing pains. I am 14 years in and although there are no moments where I don’t feel like a lawyer (perhaps to my family’s chagrin), I still occasionally struggle with imposter syndrome (as I think many of us do) and wonder just how I got here.