Risk Update

Risk Reading — Doctor Appeals Decision Based on Unresolved Conflict/DQ Attempt, AI Risk Revealed, Judicial Party Risk

Chances are, you’ve read about: “A lawyer used ChatGPT to prepare a court filing. It went horribly awry.” This ripple, which I hope wasn’t drafted by an AI, caught my eye: “Federal Judge Requires ‘Mandatory Certification Regarding Generative AI’” —

  • “All attorneys appearing before the Court must file on the docket a certificate attesting either that no portion of the filing was drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence was checked for accuracy, using print reporters or traditional legal databases, by a human being.”
  • “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.”
  • “Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.”
  • “Accordingly, the Court will strike any filing from an attorney who fails to file a certificate on the docket attesting that the attorney has read the Court’s judge-specific requirements and understands that he or she will be held responsible under Rule 11 for the contents of any filing that he or she signs and submits to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.”

Ohio Doctor Takes Dinsmore DQ Fight To 6th Circ.” —

  • “An Ohio doctor told the Sixth Circuit Thursday that it should undo his employer’s win in his retaliation suit against it, as the lower court did not rule on his bid to disqualify Dinsmore & Shohl LLP as the hospital’s counsel for previously representing him in a suit against a ‘rogue orthopedic surgeon’ he had blown the whistle on.”
  • “Dr. Charles Mehlman, also an orthopedic surgeon, had claimed in his 2020 complaint that his employer, Cincinnati Children’s Hospital Medical Center, sought to ‘punish him’ for speaking up about the now-infamous Dr. Abubakar Atiq Durrani and his practice of performing unnecessary spinal surgeries on patients, including children. Mehlman was deposed by plaintiffs who sued Durrani for malpractice, and he was represented by Dinsmore & Shohl LLP at the time, which he said in his brief should have disqualified it from representing the hospital in his retaliation suit.”
  • “When Mehlman filed his retaliation suit after receiving a two-week suspension ‘without notice or other form of process,’ the hospital retained Dinsmore & Shohl as its legal counsel and ultimately secured an early win in January despite Mehlman’s motion to disqualify the firm, which the lower court did not address, his brief states.”
  • “‘The district court should have ruled on Dr. Mehlman’s motion to disqualify counsel prior to ruling on defendants’ motion for summary judgment because a motion for disqualification has the potential to alter the course of proceedings substantially,’ Mehlman said.”
  • “According to the brief, the district court shirked its precedential requirement to decide on his disqualification motion before making a dispositive ruling like a summary judgment grant, and it was inappropriate for the court to allow Dinsmore & Shohl to represent the hospital since Mehlman’s claims were ‘inextricably linked’ to the Durrani depositions the firm had represented him for.”

California Ethics Group Tells Judges Not to Party With Lawyers” —

  • “California judges should refrain from attending law firm celebrations at the firm’s offices with complimentary food and beverages under a draft ethics advisory out for comment.”
  • “The California Supreme Court’s Committee on Judicial Ethics Opinions’ draft opinion follows a request on whether a judicial officer could attend a 50th anniversary celebration.”
  • “‘A judicial officer’s presence at such an event may suggest that the judicial officer has a special relationship with the law firm, which may undermine the impartiality of the judiciary or convey the impression that the law firm is in a position to influence the judicial officer’s judicial decisions,’ the draft said.”
  • “In a footnote, the draft said attending a law firm celebration ‘is distinguishable from attending a bar association or legal education event sponsored by law firms. Such activities do not generally undermine judicial impartiality, and a specific exception to the gift prohibition applies.'”