All in National
Some interesting (if you are me) news came out of Arizona this week: Its Supreme Court approved a rule change limiting the ability of people not directly involved in, or who do not have first-hand knowledge of, a particular matter to pursue ethics complaints.
As reported by Above the Law and the Legal Profession Blog, a Colorado lawyer received a 60-day suspension, stayed if he successfully completes a two-year probationary period, for posing as a judge and a former deputy district attorney in blog comments submitted to a moderator.
Last week, CNN reported that Wisconsin native and fake elector lawyer Ken Chesebro not only had an anonymous Twitter/X account, “@BadgerPundit,” but denied its existence to Michigan investigators. The account was actually created back when then-Governor Scott Walker dropped the Act 10 bomb, incidentally right around the same time I created my own, very much not anonymous Twitter account (it’s @EthickingStacie now, naturally, but was something else then). We may have interacted at some point, but we were never mutuals.
This Blog Is Not About Politics so I am not weighing in on the electoral or PR ramifications of this burner account. But I have been asked—Ken Chesebro is a lawyer*, and lawyers aren’t allowed to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, right? Can lawyers even have anonymous social media accounts?
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.
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.
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.
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).
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.”
A committee of the District of Columbia Board on Professional Responsibility has recommended disbarment for America’s Mayor/Trump sycophant Rudy Giuliani.
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.
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.
Litigation crowdfunding has recently resurfaced as an issue, as lawyers for Daniel Penny, the man charged with killing Jordan Neely on a New York subway, has have raised nearly $2.5 million dollars (as of this posting) to support his defense fund.
I’d like to kick off the new year of blogging with an update. Remember Alex Jones’s lawyers? The one who belatedly turned over a bunch of his client’s text messages, but with it dumped some confidential records (including medical records) of some of the the Sandy Hook families?
In what seems like lightning speed, one of the lawyers, last week Norman Pattis, was suspended for six months from the practice of law by a Connecticut judge. (No, this was not the one in Texas who chose to close with a quote from the anti-Nazi pastor Martin Niemöller. There is a lot going on here.)
I hope everyone is planning a restful and warm holiday. I may or may not be blogging more this year (that’s always a spur-of-the-moment decision), so in the meantime, I’ll leave you with a few little stocking stuffers/nuggets of coal (depending on your perspective).
Yesterday, the Select Committee to Investigate the January 6th Attack on the United States Capitol held its last hearing and released the introductory report to its findings. The full report will not be released until tomorrow, but the summary material (which is 154 pages in itself) provides a robust roadmap.
I watched some of yesterday’s hearing, and, I’m sure, like any other member of the ethics bar who may have been listening, my ears perked up when Rep. Lofgren outlined efforts by lawyers to influence witnesses and disrupt the investigation.
Earlier this week, the U.S. Attorney for the Southern District of New York announced charges in four separate insider trading cases involving nine targets.
Relevant here is the case against Seth Markin (pdf), who is accused of looking through his then-girlfriend’s confidential work documents. The girlfriend, who is not named in the indictment, was an associate at a Washington DC law firm. The couple did not live together, but Markin spent significant time at her one-bedroom apartment, sometimes alone.
Bloomberg Law is reporting that Vrdolyak Law Group, based in Illinois, has been sued in the U.S. District Court for the Northern District of Illinois for secretly recording employee phone calls and and meetings without permission, and then concealing their efforts.
Now, Illinois has some pretty stringent eavesdropping laws and is a two-party consent state, which means that absent particular circumstances, all parties to a conversation need to consent to recording it. So the particular course of action may not be available to aggrieved employees in other states, but hearing about this suit got me wondering—is it ethical to surveil your employees in such fashion?
The folks at the Monroe H. Freedman Institute for Legal Ethics at Hofstra University’s Deane School of Law have invited me and a fantastic panel of others—including Michael Teter, the 65 Project’s executive director—to have that conversation at a Zoom event, “Holding Trump’s Lawyers Accountable.”
This week, we learned about a new group, the 65 Project, dedicated to seeking professional discipline for lawyers involved in President Trump’s post-election litigation. Already, complaints have been filed with several states’ regulators. The “65” refers to the number of post-election lawsuits that were filed, that, in the group’s words, were “based on lies to overturn the election and give Trump a second term.”
Like most ethics lawyers, I get questions about how to respond to online criticism fairly often. Of course, lawyers have always endured criticism, but until relatively recently, the comments were made around water coolers and on the courthouse steps, and maybe in a grievance filing. Newspaper editors generally didn’t publish letters about attorneys who weren’t otherwise public figures. Now, however, everyone has a platform and anyone can post a scathing review about anyone for any reason.
