Elizabeth Williamson, The New York Times ; From Pizzagate to the 2020 Election: Forcing Liars to Pay or Apologize
"Convinced that viral lies threaten public discourse and democracy, he is at the forefront of a small but growing cadre of lawyers deploying defamation, one of the oldest areas of the law, as a weapon against a tide of political disinformation."
DEBRA CASSENS WEISS, ABA Journal ; Lawyers viewed as more ethical than car salespeople and US lawmakers
"Only 16% of Americans rate lawyers’ honesty and ethical standards as "high" or "very high," according to a Gallup poll taken in December.
The percentage has decreased since 2022, when 21% of Americans said lawyers had high or very high honesty and ethical standards, and since 2019, when the percentage was 22%, according to a Jan. 22 press release with results of Gallup’s 2023 Honesty and Ethics poll.
Lawyers did better than business executives, insurance salespeople and stockbrokers. Twelve percent of Americans viewed those occupations as having high or very high ethics and honesty. The percentage decreased to 8% for advertising practitioners, car salespeople and senators, and 6% for members of Congress."
Ralph Artigliere , JDSupra; Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark
"As a former Florida trial lawyer and judge who appreciates emerging technology, I admit that I had more than a little concern when The Florida Bar announced it was working on a new ethics opinion on generative AI. Generative AI promises to provide monumental advantages to lawyers in their workflow, quality of work product, productivity, and time management and more. For clients, use of generative AI by their lawyers can mean better legal services delivered faster and with greater economy. In the area of eDiscovery, generative AI promises to surpass technology assisted review in helping manage the increasingly massive amounts of data.
Generative AI is new to the greater world, and certainly to busy lawyers who are not reading every blogpost on AI. The internet and journals are afire over concerns of hallucinations, confidentiality, bias, and the like. I felt a new ethics opinion might throw a wet blanket on generative AI and discourage Florida lawyers from investigating the new technology.
Thankfully, my concerns did not become reality. The Florida Bar took a thorough look at the technology and the existing ethical guidance and law and applied existing guidelines and rules in a thorough and balanced fashion. This article briefly summarizes Opinion 24-1 and highlights some of its important features.
On January 19, 2024, The Florida Bar released Ethics Opinion 24-1(“Opinion 24-1”)regarding the use of generative artificial intelligence (“AI”) in the practice of law. The Florida Bar and the State Bar of California are leaders in issuing ethical guidance on this issue. Opinion 24-1 draws from a solid background of ethics opinions and guidance in Florida and around the country and provides positive as well as cautionary statements regarding the emerging technologies. Overall, the guidance is well-placed and helpful for lawyers at a time when so many are weighing the use of generative AI technology in their law practices."
Pat Murphy , Rhode Island Lawyers Weekly; Lawyers weigh strength of copyright suit filed against BigLaw firm
"Jerry Cohen, a Boston attorney who teaches IP law at Roger Williams University School of Law, called the suit “not so much a copyright case as it is a matter of professional responsibility and respect.”"
Ann E. Marimow, The Washington Post; Roberts sidesteps Supreme Court’s ethics controversies in yearly report
"Roberts, a history buff, also expounded on the potential for artificial intelligence to both enhance and detract from the work of judges, lawyers and litigants. For those who cannot afford a lawyer, he noted, AI could increase access to justice.
“AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike. But just as it risks invading privacy interests and dehumanizing the law,” Roberts wrote, “machines cannot fully replace key actors in court.”...
Roberts also did not mention in his 13-page report the court’s adoption for the first time of a formal code of conduct, announced in November, specific to the nine justices and intended to promote “integrity and impartiality.” For years, the justices said they voluntarily complied with the same ethical guidelines that apply to other federal judges and resisted efforts by Congress to impose a policy on the high court...
The policy was praised by some as a positive initial step, but criticized by legal ethics experts for giving the justices too much discretion over recusal decisions and for not including a process for holding the justices accountable if they violate their own rules."
Pranshu Verma, The Washington Post; Michael Cohen used fake cases created by AI in bid to end his probation
"Michael Cohen, a former fixer and lawyer for former president Donald Trump, said in a new court filing that he unknowingly gave his attorney bogus case citations after using artificial intelligence to create them as part of a legal bid to end his probation on tax evasion and campaign finance violation charges...
In the filing, Cohen wrote that he had not kept up with “emerging trends (and related risks) in legal technology and did not realize that Google Bard was a generative text service that, like ChatGPT, could show citations and descriptions that looked real but actually were not.” To him, he said, Google Bard seemed to be a “supercharged search engine.”...
This is at least the second instance this year in which a Manhattan federal judge has confronted lawyers over using fake AI-generated citations. Two lawyers in June were fined $5,000 in an unrelated case where they used ChatGPT to create bogus case citations."
Karen Sloan, Reuters ; AI chatbot can pass national lawyer ethics exam
"Popular AI chatbot GPT-4 outperforms most aspiring lawyers on the legal ethics exam required by nearly every state in order to practice law, a new study has found.
GPT-4 answered 74% of the questions correctly on a simulated Multistate Professional Responsibility Exam (MPRE), compared with an estimated 68% average among human test takers nationwide, according to a report released on Thursday by LegalOn Technologies — which sells AI software that reviews contracts...
A spokesperson for the National Conference of Bar Examiners, which develops the MPRE, said that it could not assess the LegalOn report's claims that GPT-4 can pass its ethics test.
"The legal profession is always evolving in its use of technology, and will continue to do so," said National Conference spokesperson Sophie Martin. She added that "attorneys have a unique set of skills that AI cannot currently match."...
“This research demonstrates for the first time that top-performing generative AI models can apply black-letter ethical rules as effectively as aspiring lawyers,” the study reads."
Brad Hise and Jenny Dao, Hanson Bridgett LLP, Reuters; Ethical considerations in the use of AI
"The burgeoning use of artificial intelligence ("AI") platforms and tools such as ChatGPT creates both opportunities and risks for the practice of law. In particular, the use of AI in research, document drafting and other work product presents a number of ethical issues for lawyers to consider as they contemplate how the use of AI may benefit their practices. In California, as in other states, several ethics rules are particularly relevant to a discussion of the use of AI."
Melissa Heelan, Bloomberg Law News ; ANALYSIS: Professional Integrity Tops Lawyers’ Ethics Wish List
"Lawyers have undergone some soul-searching in the wake of election fraud cases and the Jan. 6 raid on the US Capitol. So it stands to reason that they chose “maintaining the integrity of the profession” as the legal ethics category most in need of revision, according to a recent Bloomberg Law survey.
The respondents, both in-house and law firm lawyers, also said that they want to see more guidance on artificial intelligence and technology.
The American Bar Association’s Model Rules of Professional Conduct, which provide the basis for state ethics rules, are divided into eight categories (in addition to a preamble), each comprised of anywhere between three (Counselor) and 18 (Client-Lawyer Relationship) rules."
New York State Bar Association (NYSBA) ; ChatGPT: Ethics and the 21st Century Lawyer
"The ChatGPT Lawyer incident raises many questions of skills and ethics. This program will discuss the disciplinary decisions arising from that incident in the Southern District of New York and how this may inform future use of AI technology in the practice of law in federal and state court. Panelists will cover the use of Chat GPT and the use of AI in other legal research tools (Westlaw, Lexis). Attendees will gain an understanding of best practices for writing briefs and citing cases appropriately using AI."
Will Langhorne, Arkansas Democrat Gazette ; Arkansas Supreme Court closing Office of Ethics Counsel
"The Arkansas Supreme Court on Friday announced plans to close an office it established two years ago to provide attorneys with guidance and responses to ethical questions.
In a succinct order, justices said the high court's Office of Ethics Counsel, which is supported by annual law license fees paid by attorneys, would no longer be funded as of Aug. 1 because of budgetary constraints within the Supreme Courts' Bar of Arkansas account."
Dr. Lance B. Eliot , Forbes; Are We Going Too Far By Allowing Generative AI To Control Robots, Worriedly Asks AI Ethics And AI Law
"What amount of due diligence is needed or required on the part of the user when it comes to generative AI and robots?
Nobody can as yet say for sure. Until we end up with legal cases and issues involving presumed harm, this is a gray area. For lawyers that want to get involved in AI and law, these are going to be an exciting and emerging set of legal challenges and legal puzzles that will undoubtedly arise as the use of generative AI becomes further ubiquitous and the advent of robots becomes affordable and practical in our daily lives.
You might also find of interest that some of the AI makers have contractual or licensing clauses that if you are using their generative AI and they get sued for something you did as a result of using their generative AI, you indemnify the AI maker and pledge to pay for their costs and expenses to fight the lawsuit, see my analysis at the link here. This could be daunting for you. Suppose that the house you were cooking in burns to the ground. The insurer sues the AI maker claiming that their generative AI was at fault. But, you agreed whether you know it or not to the indemnification clause, thus the AI maker comes to you and says you need to pay for their defense.
Ouch."
Karen Sloan, Reuters; 'Snitch' rule adopted by California bar amid ethics scandals
"The California Supreme Court on Wednesday adopted a lawyer professional misconduct reporting rule that brings it in line with every other state.
Lawyers in California starting on Aug. 1 will be required to report fraud, misappropriation of funds and other criminal acts or conduct that raise "a substantial question" about another lawyer's "honesty, trustworthiness, or fitness as a lawyer."
Adoption of the so-called “snitch rule” comes after intense debate within the State Bar of California, which recommended the rule change to the court earlier this month."
Benjamin Weiser and , The New York Times; The ChatGPT Lawyer Explains Himself
"Irina Raicu, who directs the internet ethics program at Santa Clara University, said this week that the Avianca case clearly showed what critics of such models have been saying, “which is that the vast majority of people who are playing with them and using them don’t really understand what they are and how they work, and in particular what their limitations are.”
Rebecca Roiphe, a New York Law School professor who studies the legal profession, said the imbroglio has fueled a discussion about how chatbots can be incorporated responsibly into the practice of law.
“This case has changed the urgency of it,” Professor Roiphe said. “There’s a sense that this is not something that we can mull over in an academic way. It’s something that has affected us right now and has to be addressed.”"
Karen Sloan, Reuters; A lawyer used ChatGPT to cite bogus cases. What are the ethics?
"A New York lawyer is facing potential sanctions over an error-riddled brief he drafted with help from ChatGPT.
It's a scenario legal ethics experts have warned about since ChatGPT burst onto the scene in November, marking a new era for AI that can produce human-like responses based on vast amounts of data.
Steven Schwartz of Levidow, Levidow & Oberman faces a June 8 sanctions hearing before U.S. District Judge P. Kevin Castel after he admitted to using ChatGPT for a brief in his client's personal injury case against Avianca Airlines. The brief cited six non-existent court decisions."
DAVID L. HUDSON JR., ABA Journal; New ABA ethics opinion warns about handling retainer and other fees
"“When a client pays an advance to a lawyer, the lawyer takes possession—but not ownership—of the funds to secure payment for the services the lawyer will render to the client in the future,” according to Formal Opinion 505.
The opinion acknowledges that there is a type of fee called a general retainer, whereby a client pays the lawyer a fee to “reserve the lawyer’s availability.” However, the opinion notes that general retainers are quite rare and not consistent with the modern practice of law. The opinion also cautions that a general retainer “may be determined to be an unreasonable fee or even unearned if the lawyer does not make himself or herself available.”
Rather, the term “retainer” should normally be labeled as an advance."
Jasmine Gallup, IndyWeek; Wake County Library Makes It Harder to Ban Books
"Wake County’s Community Services program manager Frank Cope replied that if a book was challenged on the grounds of “obscenity” or another First Amendment concern, the library would consult the county attorney’s office. Leaders plan to add a provision to the policy clarifying how and when a lawyer will be involved in book challenges.
The American Library Association advises that libraries have a lawyer on retainer to consult on legal issues, Caldwell-Stone says. But there are some potential snags in using the county attorney to fill that role.
“There’s a conflict of interest, especially when there are elected officials arguing a book should be pulled and you have the county attorney make a decision,” Caldwell-Stone says. “It should be independent legal counsel that doesn’t also represent the police department and the county government.”"
, The New York Times; How They Did It: Sandy Hook Families Savor Long-Awaited Legal Wins
After early defeats in Congress, relatives of those lost in the 2012 shooting fought on, besting a renowned gun maker and an infamous conspiracy theorist.
"Mr. Pozner, the father of Noah Pozner, the youngest Sandy Hook victim, is a technology consultant who understood the online conspiracy world, and how social media algorithms hasten the spread of harmful content. He has devoted his life since the shooting to battling conspiracy theorists and the social platforms that enable them. His nonprofit, the HONR Network, has succeeded in getting hundreds of thousands of pieces of harmful content removed from Facebook, YouTube, Twitter and other platforms, and persuaded hosting companies to take down entire websites devoted to denying the shooting. Mr. Pozner’s efforts have made him a target. He has moved nearly a dozen times after hoaxers, his moniker for the Sandy Hook deniers, posted his address online. In 2017 a Florida woman, Lucy Richards, was jailed for threatening Mr. Pozner’s life.
Mr. Jones has repeatedly maligned Mr. Pozner and Noah’s mother, Veronique De La Rosa, on Infowars. For years Mr. Jones falsely claimed an interview Ms. De La Rosa gave to CNN’s Anderson Cooper in Newtown shortly after Noah’s death was faked before a studio “green screen.” Mr. Pozner had Mr. Jones’s shows making false claims about Noah and his family removed from YouTube. In a fury, Mr. Jones showed millions of viewers addresses and phone numbers linked to Mr. Pozner.
Last week, Wisconsin’s Supreme Court affirmed Mr. Pozner’s 2019 victory in a separate defamation lawsuit against James Fetzer, another conspiracy theorist who edited a 400-page book titled “Nobody Died at Sandy Hook.” The Wisconsin court dismissed Mr. Fetzer’s appeal on Wednesday."
DAVID L. HUDSON JR., ABA Journal; How to avoid 10 common ethics pitfalls
"Lawyers are stewards of their clients’ most sensitive and personal information. They serve as officers of the court and are in positions of public trust. But these high standards can lead to steep falls, and a lawyer who doesn’t carefully mind ethics obligations can quickly run afoul of the rules of professional responsi-bility.
Most states require ethics training as part of continuing legal education requirements. But a quick scan of disciplinary records reveals lawyers behaving badly on a spectrum of issues—from improper advertising to mishandling private information and everything in between.
Whether intentionally flouting ethics rules or unwittingly succumbing to the many pitfalls that can appear, lawyers regularly face discipline for crossing the line. Being hauled in front of a disciplinary board can cause professional embarrassment, suspension of a law license and even disbarment.
We asked legal ethics experts for a primer on the most pressing and pernicious ethics traps out there for the modern lawyer, along with best practices to avoid problems on the front end.
The lesson is to not only beware, but be aware."
Andrew K. Robertson, ABA Journal ; How to Ethically Respond to Negative Online Reviews
