Bressler Risk Blog

“Tucker v. United States — No Per Se Conflict from Counsel’s Unrelated SDNY Investigation; Conflict-Free Co-Counsel Suffices for Curcio Advice” —

• “In Tucker v. United States (2d Cir. Apr. 1, 2026) (summary order), the Second Circuit affirmed the Southern District of New York’s denial of (i) Scott Tucker’s motion to vacate his conviction under 28 U.S.C. § 2255 and (ii) his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Tucker is serving a 200-month sentence following a jury trial conviction for offenses including racketeering, fraud, and money laundering.”
• “The appeal focused on two distinct questions:
  • Conflict-of-interest / Sixth Amendment: Whether Tucker’s court-appointed trial counsel, Lee Ginsberg, labored under an unwaivable per se conflict because, mid-trial, Ginsberg met with prosecutors from the same U.S. Attorney’s Office prosecuting Tucker and disclosed facts showing potential, unrelated criminal exposure. A related procedural claim asserted that the district court failed to provide “independent” counsel for the Curcio conflict-waiver inquiry.
  • Compassionate release: Whether the district court abused its discretion in denying a sentence reduction based on Tucker’s confinement conditions, rehabilitation, and need to care for his ill mother.”
• “Important procedural limitation: The Second Circuit emphasized that, due to the certificate of appealability, it had jurisdiction to consider only the narrow § 2255 question: whether an unwaivable conflict existed (not whether any waiver was knowing/voluntary).”
• “Note: This decision was issued as a summary order, which the court states has no precedential effect, though it is citable under Fed. R. App. P. 32.1 and Local Rule 32.1.1.”
• “The Second Circuit affirmed on both issues:
  • No unwaivable per se conflict: The court declined to expand the Second Circuit’s narrow per se conflict doctrine. Because Ginsberg was neither unlicensed nor implicated in Tucker’s charged crimes, and because the alleged exposure was unrelated, the asserted conflict did not qualify as per se or analogous-to-per-se.
  • Curcio counsel claim rejected: Tucker was advised by conflict-free co-counsel James Roth, who was already counsel of record and familiar with the case; the court found no requirement that the district court appoint a brand-new lawyer unfamiliar with the matter to conduct the Curcio inquiry when conflict-free counsel is already in place.
  • No abuse of discretion on compassionate release: The district court permissibly denied relief based on the 18 U.S.C. § 3553(a) factors, citing Tucker’s long fraud history, recidivism, defiance of regulators/courts, and lack of acceptance of responsibility.”
• “A. Why the conflict was not ‘per se’ or unwaivable.” Tucker’s core theory was structural: once the same prosecuting office is simultaneously investigating defense counsel, counsel may ‘curry favor’ with the government, thereby compromising loyalty. The Second Circuit did not dispute that such incentives can exist; instead it treated the question as doctrinal—whether those incentives fit within the Second Circuit’s narrow per se category or its ‘analogous’ unwaivable category.”
• “The panel also rejected the attempt to repackage the facts as an unwaivable ‘analog’ to a per se conflict under United States v. Perez. The asserted conflict lacked the kind of extreme breadth and depth that would make the representation irrational for any defendant as a matter of law.”

New York State: “Judicial Ethics Opinion 25-156” —

• “Digest: On these facts, a judge need not disqualify from a proceeding merely because counsel for a party makes many accusations against the judge, provided the judge concludes he/she can remain impartial.”
• “Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 23-70; 94-46; People v. Moreno, 70 NY2d 403 (1987).”
• “Opinion: The inquiring judge received a letter from counsel in a matter asking the judge to recuse for a long list of reasons. Several reasons appear to involve primarily legal questions, such as the propriety of the judge’s closure of the courtroom, the correctness of the judge’s discovery orders, the judge’s willingness to excuse party appearances, and whether or not a pending federal case may be relevant to the matter. Other reasons appear to involve incorrect factual assumptions.”
• For example, a purported ‘stranger’ in the closed courtroom was in fact the judge’s law clerk, and the judge flatly denies counsel’s claims that the judge has prejudged certain issues in the case or has a disqualifying personal relationship with a witness or disqualifying extra-judicial knowledge of certain property. Counsel also claims that the judge’s impartiality can be questioned because a party in the case is up for election against the judge’s spouse’s former campaign opponent. The judge believes he/she can remain fair and impartial, but asks if he/she must nonetheless disqualify under the circumstances.”
• “A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v. Moreno, 70 NY2d 403, 405 [1987]).”
• “We can only advise ‘whether the facts as presented by the judge require the judge to disqualify from the case going forward’ (Opinion 23-70). None of the specific objective disqualifying standards found in 22 NYCRR 100.3(E)(1)(a)-(f) appear to be implicated here on the facts presented. We have advised that a judge need not recuse from a proceeding ‘merely because an attorney participating therein accuses the judge of misconduct in a letter addressed to the judge, the Administrative Judge, opposing counsel, and the Commission on Judicial Conduct,’ provided the judge concludes he/she can be fair and impartial (Opinion 94-46). Nor can we see any other grounds on which this judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1] [emphasis added]).”
• “Where, as here, objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 23-70). Accordingly, we conclude that the inquiring judge need not disqualify from the case, provided the judge concludes he/she can be fair and impartial.”

“[Canadian] Court bars Northbridge’s law firm from acting for and against insured” —

• “A law firm cannot sue on behalf of an insured and defend against that same insured at the same time, an Alberta court has ruled. In a decision filed March 16, the Court of King’s Bench of Alberta disqualified a law firm from representing Northbridge General Insurance Corporation in three subrogated recovery actions, finding the arrangement posed a genuine risk of compromised representation for the insured.”
• “The case, Sniper Pressure Services Ltd v Northbridge General Insurance Corporation, 2026 ABKB 193, arose from two roof collapses at a commercial property in Woodlands County, Alberta – the first in March 2020, the second in January 2022. Sniper Pressure Services, which owned the land and building, was insured with Northbridge for both losses. Following the first collapse, Northbridge paid Sniper approximately $2,000,000 and launched subrogated actions against the alleged tortfeasors. Sniper, meanwhile, sued Northbridge for $650,000 it says is still owed under the policy.”
• “The issue: Northbridge had retained the same law firm to pursue the subrogated claims – filed in Sniper’s name, as is standard in subrogation — and to defend itself against Sniper’s own coverage claims. That meant the same counsel was effectively acting on Sniper’s behalf in one set of proceedings while working against Sniper in another, all arising from the same losses.”
• “Justice Kelsey L. Becker Brookes found no formal solicitor-client relationship between the firm and Sniper, which meant the ‘bright line’ rule against concurrent representation of adverse clients did not technically apply.”
• “But the court went further. Applying the ‘substantial risk’ test, the judge concluded the dual role created a real risk. In the subrogated actions, the firm would need to review Sniper’s records, identify privileged documents, and prepare Sniper’s corporate representative for questioning. In the coverage dispute, that same firm would then cross-examine Sniper’s representative, challenge their credibility, and seek admissions harmful to Sniper. The court found Sniper had been placed in an ‘untenable position’ — forced to either hand over confidential information to a firm actively opposing it, or hold back and fail to cooperate as required.”
• “‘Northbridge faces no risk; in fact, they benefit from it,’ the judge wrote. ‘The party at a disadvantage is Sniper.'”
• “The court noted the firm had accepted the dual retainer in good faith, relying on advice from a practice advisor. Still, the judge ordered the firm removed from all three subrogated actions, finding the litigation was early enough that Northbridge would not be significantly prejudiced by retaining replacement counsel.”

New York: “Judicial Ethics Opinion 25-151” —

• “Digest: On these facts, a judge whose spouse works for the employment practice of a local legal services organization must disqualify in criminal matters where a defendant is represented by that organization.”
• “Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(e); 100.3(F); Opinions 25-167; 24-191; 22-23; 21-22(A); 97-82.”
• “Opinion: The inquiring judge presides exclusively in criminal matters, but does ‘not have a permanently assigned part with a docket of cases that are permanently assigned’ to him/her. Instead, the judge presides in calendar parts ‘on a rotating basis’ and handles whichever cases are currently in a given part while he/she is assigned there. The judge’s spouse has been hired as a staff attorney within the employment practice of a legal services organization that represents many defendants in the judge’s court. The employment attorneys primarily ‘represent[] clients in employment-related civil matters’ and do not make appearances in criminal cases. However, a ‘small percentage’ of their work involves advising criminal defense clients about the potential employment consequences of a plea offer. This process is initiated by a request from the criminal defense lawyer to their employment practice colleagues. Thereafter, as explained by the judge:”
• “‘The employment attorney may communicate [the requested] information to the client’s criminal defense attorney, or directly to the client, or to the assigned prosecutor. Either way, the employment attorney’s role is limited to providing non-criminal information about the potential civil consequences of the plea. The employment attorney does not perform any substantive legal work related to the client’s criminal case and does not advise the client about whether he/she should take the plea offer. These matters remain the province of the criminal defense attorney exclusively.'”
• “Finally, from a statistical perspective, the judge concludes that employment consequences are infrequently relevant to criminal cases in his/her court. The judge further notes that only a miniscule percentage of the organization’s criminal cases involve the employment practice, and the judge’s spouse ‘would be involved in only a tiny fraction of that already small number of cases.’ The judge emphasizes that he/she ‘would have no reason to know’ whether or not his/her spouse ‘had provided collateral-consequences information in any particular case’ during any particular calendar appearance.”
• “A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is disqualified when his/her impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1]), including where the judge knows that his/her spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or has an economic interest or ‘any other interest that could be substantially affected by the proceeding’ (22 NYCRR 100.3[E][1][c]).”
• “We have said that recusal is required if a judge’s attorney spouse has any involvement whatsoever in the case before the judge, even indirectly due to a supervisory role (see e.g. Opinions 25-167; 24-191; 22-23; 97-82).”
• “Still, we do not ordinarily require a judge to disqualify in all matters involving a legal services provider, merely because the judge’s spouse or first-degree relative is a staff attorney there. The usual rule is that ‘neither disclosure nor disqualification is mandated in matters involving other attorneys from the same not-for-profit legal services provider that employs the judge’s first-degree relative as an entry-level staff attorney, where the judge is satisfied his/her relative has had, and is likely to have, absolutely no involvement with the case. Thus, where the judge’s relative is employed in a division or unit that has absolutely no involvement in the kinds of matters that come before the judge’s court, the judge may preside in matters involving other attorneys from other units of the same legal services provider’ (Opinion 22-23 [citations omitted]).”
• “Due to the unusual intersection of three interrelated factors, however, we conclude the inquiring judge must disqualify whenever attorneys appear from the criminal defense practice of the legal services organization that employs the judge’s spouse. First, the employment practice is not a specialized or distinct unit that can reasonably be seen as walled off from involvement in the kinds of criminal matters that come before the judge. Nor has the legal services organization proposed to insulate the judge’s spouse from cases in the judge’s court. To the contrary, the employment practice (and also the judge’s spouse) will clearly be involved in some criminal cases, and the judge ‘would have no reason to know’ which ones. Second, employment consequences may become relevant in a criminal case at any stage of the proceedings, depending on what pleas are being negotiated, offered, or considered. Third, unlike the organization’s criminal defense lawyers, whose participation in a criminal case may be clear to everyone, including the public, from the papers or court appearances or an organizational chart, an employment attorney’s involvement in a criminal case is both unpredictable and undisclosed.”
• “The practical effect of this complex combination of factors is that each time a defendant represented by this legal services organization comes before the judge, it is an open question whether the judge’s spouse may have provided advice about employment consequences ‘to the criminal defense attorney, or directly to the client, or to the assigned prosecutor.’ At any point in the lifetime of the criminal case, employment consequences could become relevant. It seems that the judge will not know whether, in a particular case, his/her spouse has in fact provided advice on possible employment consequences; but the judge certainly knows that his/her spouse’s job responsibilities have not been limited to avoid that possibility. Requiring disqualification ‘only’ after the judge actually learns that his/her spouse was consulted does not change that underlying dynamic and would, in our view, offer too much opportunity for strategic disqualification.”

From the “This is the bread of our confliction” department, comes this catch from David Kluft: “Do I need to run a conflict check at my Passover seder?” —

• “A man attended a Passover seder and took the opportunity to seek some free legal advice from his host’s daughter, a NY lawyer.
• “Four years later, other lawyers at the NY lawyer’s firm filed suit against the man in a PA court. The man moved to disqualify, claiming that the seder conversation created an implied attorney client relationship with the firm.”
• “The firm responded in part by stating that although the guy was at the seder, there was no legal advice given and no ‘one-on-one’ conversation between them that he could have possibly seen as confidential ([Kluft’s] Note: This rings true for anyone who has ever tried to have a private conversation at a seder).”
• “Also, it turned out that since the seder, the firm had been adverse to the man in other matters and he didn’t say anything about a conflict then. The Court therefore denied the motion, holding that ‘a purported conflict of interest is not a chit to be held in a litigant’s pocket until a rainy day.'”
• Decision: here.

“Ethics, Transparency, and Lawmaking in Charleston” —

• “The previous edition of Country Roads News reported that West Virginia House of Delegates Speaker Roger Hanshaw was hired as legal counsel to represent Fundamental Data. In addition to his leadership role in the state legislature, Hanshaw is an attorney for the Charleston law firm Bowles Rice.”
• “We now know Fundamental Data wasn’t Hanshaw’s first data center client. West Virginia Watch reports that Hanshaw also represents a developer seeking approval for a facility in Mason County. Hanshaw notified the Department of Environmental Protection’s Air Quality Board on February 12 — in the middle of the 2026 legislative session — that he represents the developer of that facility.”
• “The situation has raised alarms among numerous government ethics watchdogs who say it’s a conflict of interest for Hanshaw to have clients who could profit enormously from legislation that the Speaker helped guide to enactment.”
• “Meanwhile, the state legislature is making it harder for the public to know who’s trying to influence legislation in Charleston. As Mountain State Spotlight reports, the state legislature recently enacted a law redacting certain information about political donors.”

More background on this: here.

“Williams & Connolly Sues Former Clerk For Posting Confidential Information” —

• “Williams & Connolly is suing a former law clerk in D.C. court, alleging he posted confidential client information on social media. The law firm, represented by Paul Hastings, alleges that Dante Chambers, in the last week, has posted screenshots of Williams & Connolly emails and other materials with potential client names and litigation information, in a complaint filed in Superior Court for the District of Columbia on Thursday.”
• “‘Intentionally disclosing to the public a law firm’s confidential information, including attorney-client privileged and attorney work product material, jeopardizes bedrock client protections in our legal system, violates professional ethics rules attorneys pledge to adhere to and is a blatant breach of a law firm employee’s fiduciary duties and contractual confidentiality obligations,’ the complaint reads.”
• “On or around March 17, 2026, Chambers, according to the suit, began posting what is now ‘hundreds of communications on Instagram related to Williams & Connolly, some of which contained confidential information related to the firm’s clients.'”
• “The suit further alleges that some of Chambers’ social media posts invite readers to contact the defendant for more details about the firm and that firm lawyers ‘don’t know the extent of what I have.'”
• “Among the info he allegedly shared, Williams & Connolly said he posted on March 18 a picture of confidential William & Connolly litigation materials—specifically, a picture of a physical printout of an email chain regarding client work while he was a firm employee—that contains confidential attorney work product and identifies the relevant client. A subsequent post the next day said: ‘If you want these litigation materials I prepared in fall 2024, go ahead and respond to this with your number and I’ll shoot them over to you via text sometime over the weekend next few days.'”
• “‘About 20 people currently have them, and everyone says they’re a fun read,’ he allegedly said.”
• “One March 24 Instagram post said: ‘Anyways no more Williams & Connolly info today. Just know I got more and they don’t know the extent of what I have because they never required me to get rid of anything I kept (I told you they’re BUMS). If anyone can get a message to Trump’s camp, tell them Dante said send the FBI all up in there and defend our nation from a devastating cyberattack that could cripple our countries legal and satellite infrastructure.'”
• “Williams & Connolly alleges that Chambers has made ‘numerous’ posts threatening physical violence against the firm’s partners, including a death threat posted on Thursday against a firm partner.”
• “The suit says Chambers worked at Williams & Connolly as a clerk from December 4, 2023, until Sept. 22, 2024. He previously worked for Williams & Connolly as a summer associate from July 27, 2020, to Aug. 21, 2020.”
• “According to his LinkedIn profile, Chambers graduated from Stanford Law School in 2021 and then worked as a judicial clerk to a Utah federal judge and a clerk to a judge on on the U.S. Court of Appeals for the Ninth Circuit.”

David Kluft asks: “If my litigation opponent uses a hallucinated case, can I use it too instead of requesting sanctions?” —

• “Plaintiff’s counsel in a CA corporate debt dispute used some #AI -generated false citations in its opposition to a motion to dismiss.”
• “Defense counsel, instead of realizing the citations were false, copied one of them into its reply brief. ‘In other words,’ as the court later explained, ‘[Defense counsel] merely followed Plaintiff’s counsel over the cliff.'”
• “The Court noted that ‘perhaps due to the asynchronous Thelma and Louise, neither side request[ed] sanctions.’ While the Court ‘certainly [did] not insist on candlelight in this age of electricity,’ it also reminded the parties that AI misuse can lead to Rule 11 sanctions.”
• Minutes: here.

Peter J. Winders, general counsel at Carlton Fields, writes: “Why Our Firm Still Prohibits Generative AI for Legal Research and Written Advocacy” —

• “Two years ago, at the request of Carlton Fields’ CEO, I published a short article titled ‘Why Our Law Firm Bans Generative AI for Research and Writing.’ As always, a lot has happened since then.”
• “More hype, more pressure. Can a hundred big law firms be wrong? Of course they can… The enthusiasm for generative AI may prove to be another, especially for applications with little tolerance for errors.”
• “A lot of claims about AI use in law firms are just not true. ‘Clients are demanding that firms use our product.’ I review every set of outside counsel guidelines we get from the sophisticated clients that issue them. We have hundreds of them. The overwhelming majority require that if we use a generative AI product, we (a) identify the app, (b) get written permission, (c) justify the use case, (d) explain how we guarantee against the inherent problems of generative AI, (e) describe human supervision, (f) estimate any cost savings to the client, (g) bear responsibility if anything goes wrong, and various other things. Many clients appear to distrust it as much as I do.”
• “‘Your competitors are ‘all in’ on AI.’ Many say they are, but to the extent we can find their actual use of generative AI, it consists of back-office uses, not legal research and advocacy.”
• “There are daily reports in the legal press of fake cases, false quotations, and generated facts in legal briefs, expert reports, and judicial opinions involving generative AI tools.”
• “Courts now regularly announce local court rules requiring a certificate that the signer has not used generative AI or a certificate that he or she has removed the fabricated portions. But most courts do not seem to get the point that removing the fake parts of a legal brief does not necessarily leave a competent brief—just a recitation assembled by the tool with no easily detectable falsehoods.”
• “Generative AI has its uses. But judgment as to risk tolerance is necessary, and it depends on the application. For example: Assume a customer-facing chatbot is the application. If the typical 50% customer frustration level enables a cost savings of $X in employee cost and a 10% drop in sales, but results in a 5% increase in profit, a business may think generative AI is a godsend. But for legal research, reasoning, writing, and advocacy, an entirely different set of tolerances applies.”
• “As important, it does not appear that the advocates for generative AI actually understand what lawyers are sworn to do. Lawyers deal with specific problems for a specific client in a specific set of disputed facts. It is not a matter of finding a list of statutes, rules, or cases. In litigation, the facts are of primary importance, and they are often nuanced and in dispute, sometimes by honest witnesses who saw, heard, remember, or understood things differently. And what a case holds depends on the facts of the case, rather than a rule. The entire common law is built on what a judge concludes is the right thing to do in each fact situation, and then whether a similar situation in a following case is similar enough or different enough to cause a judge to rule the same way or differently. Researching the law is largely a matter of understanding the context of each prior case.”
• “If you do as the rules and legal opinions require and verify that your AI assistant is telling the truth, you must do traditional research, spend more time, not less, to provide accuracy. In fact, the time AI ‘saves’ misleads, or has the potential to mislead, and may put you off track rather than giving you helpful background as a starting point.”
• “If lawyers allow themselves to use a generative product to substitute for background research to gain context, how many will have the discipline to double-check the output? After all, they are ‘only using it for background.’ They will not be citing fake cases from the background. But they risk the understanding and inspiration that they would have received from true research. A person tends to believe what they are first told. I once heard a five-year-old explain to his buddy that ‘dogs pee through their toes,’ having learned that nugget by asking, ‘Hey, Dad! What is that dog doing on that fire hydrant?’ I consider that an important parable. If it is not yet in the Bible, I expect generative AI will eventually put it there.”
• “Businessmen do not hire lawyers because lawyers are smarter. Clients and their very smart engineers, financial folks, and marketing people have a problem that they have not been able to answer. They do not want ‘an answer,’ and neither the judge nor the client wants ‘a brief.’ Instead, they hope the lawyer will use his training, knowledge, investigation, research, and the expertise of others to find a cogent resolution of the problem or an authoritative, honest, candid and persuasive argument, if there is no clear answer. The deception of AI is that it can provide ‘an answer’ or ‘a brief.’ It cannot provide what is needed to help a client or a court reach a fully informed decision, and it cannot educate a lawyer to the extent immersive research can. The risk is that lawyers may be tempted by the hype, or will trust the plausible answer the machine creates, and will not do the hard and creative work they were trained for and have sworn to do. Clients can ask generative AI questions themselves. They need more from their lawyers.”
• “AI tools may be useful as a final review of a completed or semi-completed brief. Ask the tool for a redline suggesting changes in grammar, highlighting passive voice, the word ‘blatant,’ and all modifiers. Because it is a redline, the lawyer can remove all but the modifiers that make a difference and decide whether a passive phrase adds emphasis. But that is useful because the lawyer actually knows if any suggestion is good or bad, right or wrong. I really do not know whether that is generative AI. But whether it ‘generated’ the suggestion or not is immaterial because the choices are completely up to the lawyer who knows what he or she needs to say. The tool cannot mislead the lawyer.”
• “Some—many—wanting to compromise between the hype and the commonsense argument that one should not trust a fabricating tool as a source of truth, argue that maybe generative AI is better suited for transactional work—contract drafting, due diligence, coding. But that reasoning is flawed. Nothing makes it less likely that a tool whose nature is to fabricate is not fabricating in transactional tasks. It might be harder to find than a fake case; it might or might not be a more acceptable risk; but it is no more worthy of trust by a novice practitioner who does not immediately know if a suggestion is beneficial or not. I am not competent to talk about the scary things that might happen with hallucinated code. So, I am sticking with generative AI’s dilution of the quality of legal research and advocacy.”
• “Moreover, case law in a common law system itself is fluid. There are no cut and dried answers to legal problems. An advocate might need to dig deeper into the circumstances of her own case to identify key facts buried there that seemed insignificant until the research is done. Good legal research is an iterative process. And as lawyers, we make the law with each new complex case. We help the law evolve. We do not simply take a case off the shelf that fits our case.”
• “Lawyers gain their strength and effectiveness from hard work. We have not been able to persuade ourselves that the so-called shortcut of prompting a machine to produce a more believable answer is a good thing, if it robs the product, the client, the court, and the lawyer’s reputation of the benefit of immersive research into the facts, policies, goals, and history of the problem and the present state of the law.”

“Colorado policy could shield AI from complaints regarding unauthorized practice of law” —

• “Does using artificial intelligence for legal help constitute the unauthorized practice of law? Lawyers in Colorado are saying no and taking novel approaches to protect the developers of AI tools that aim to expand access to legal services.”
• “In September, the Colorado Office of Attorney Regulation Counsel adopted a first-of-its-kind ‘nonprosecution policy’ that deprioritizes the UPL prosecution of developers of legal-help technology tools.”
• “According to Jessica Yates, the attorney regulation counsel for the Colorado Supreme Court, the policy recognizes that developers are often nonlawyers who still can deliver vital legal assistance to low- and moderate-income members of the public.”
• “‘Many of us have become aware over time of technological developments that would potentially provide some access that had not been there previously or hadn’t been there as easily,’ says Yates, a member of the Colorado Supreme Court’s Advisory Committee on the Practice of Law subcommittee that developed the policy.”
• “‘And we started talking about, well, can we change the definition of what it means to practice law and what is considered the unauthorized practice of law, so that companies that are interested in developing technology-based tools could do so without fear of regulatory action or ultimately being enjoined from developing those tools?’ Yates adds.”
• “The subcommittee’s focus then turned to the nonprosecution policy, which initially will be in place for three years, so that the state can evaluate whether it creates more space for innovation and benefits consumers who want to use AI for legal guidance, Yates says. It includes specific safeguards, including that developers must be supervised by lawyers and clearly disclose that they are not lawyers.”
• “Lucian Pera, a past chair of the ABA Center for Professional Responsibility and a member of the New York City Bar Association’s Presidential Task Force on Artificial Intelligence and Digital Technologies, has written about how states can follow Texas’ approach to remove uncertainty around AI for legal use.”
• “That state’s law came about after UPL charges were brought against a software company in the late 1990s. Parsons Technology, the company at the center of the case, offered legal forms and instructions on how to use them, which a district court said violated the state’s UPL statute. But while the appeal was pending, the Texas legislature amended the statute to exclude computer software from the definition of UPL, as long as products clearly said they were not a substitute for an attorney.”
• “According to Pera, it’s simple—AI isn’t UPL. In an article published in the ABA Law Practice Division’s magazine in September, he pointed out that ‘legal advice’ must be provided by lawyers, but ‘legal information’ can be dispensed by anyone. Or, in this case, anything.”
• “‘But there’s a lot of uncertainty on the part of entrepreneurs, businesspeople, etc., about it, and you could remove that very, very serious chill on their work by providing almost a safe harbor,’ says Pera, a partner at Adams and Reese in Memphis, Tennessee.”
• “Pera suggests that states could pass a law that clearly exempts software or apps that offer legal help from UPL prosecution. He notes that it could include some guardrails, such as requiring developers to inform clients that their services are not confidential and do not constitute an attorney-client relationship.”

California State Bar Committee on Professional Responsibility and Conduct “COPRAC Advisory Regarding Artificial Intelligence (AI) Hallucinations” —

• “Due to the increased usage of artificial intelligence (AI) in the legal profession, the Committee on Professional Responsibility and Conduct (COPRAC) continues to provide guidance on relevant ethical and practical considerations that arise from the use of these technologies.”
• “Generative AI tools (such as ChatGPT and Perplexity) are computer applications that can create text, images, or other content in response to user prompts. In the legal context, they may be used for tasks such as brainstorming, research, drafting, or summarizing information.”
• “While these tools can be helpful in streamlining some aspects of legal work, attorneys must use them in a manner consistent with their duty of competence (rule 1.1), diligence (rule 1.3), and responsibilities as managerial and supervisory lawyers (rule 5.1). Competent use of such technology requires understanding its limitations, including the risk of fake or ‘hallucinated’ content, outdated or incomplete legal authorities, and the inadvertent disclosure of confidential client information through prompts.”
• “Courts have sanctioned attorneys for submitting AI-generated filings containing false or fabricated authorities, and an attorney’s lack of awareness of the risk of ‘hallucinated’ content does not relieve the attorney of responsibility for ensuring the accuracy and integrity of any work product submitted. Attorneys must independently verify any AI-assisted work product before relying on it in any context. Diligent representation requires that attorneys not delegate their professional judgment to AI, but instead review, edit, and take responsibility for the substance and timing of all filings, communications, and advice.”
• “Attorneys with managerial or supervisory authority must also implement reasonable policies, training, and oversight to ensure that any use of generative AI by attorneys does not compromise client confidentiality or replace appropriate legal analysis, supervision, or quality control. Ultimately, licensees should evaluate these tools thoughtfully, balancing their potential benefits while understanding the potential pitfalls.”
• “COPRAC is actively working on revisions and updates to its practical guidance regarding AI. The updated practical guidance will be presented at the May 14–15, 2026, Board of Trustees meeting for approval. In addition, proposed amendments to the Rules of Professional Conduct are currently out for public comment. Licensees and members of the public are encouraged to submit written comments on the proposed amendments.”

“Aligning Microsoft Tools With NYC Bar AI Recording Guidance” —

• “On Dec. 22, 2025, the New York City Bar Association’s Professional Ethics Committee issued Formal Opinion 2025-6, addressing the ethical obligations arising when attorneys or clients use artificial intelligence tools to record, transcribe or create summaries of their conversations.”
• “Among other things, the opinion: ”
  • “States that an attorney should obtain client consent before the attorney engages AI to record a call and consider whether recording, transcribing and summarizing is well advised in the specific circumstances, including issues of confidentiality and privilege;”
  • “Explains that if an attorney knows that a client is recording a call with an AI tool, the lawyer should advise the client of the disadvantages of doing so; and”
  • “Recommends that attorneys review any AI-generated transcripts, summaries or other meeting artifacts for accuracy with respect to any meetings with counsel to effectuate ethical duties.”
• “While the opinion focuses on attorney-client communications between outside counsel and their clients, it is not limited to, and its guidance applies equally to, in-house counsel communicating with internal business partners. For organizations using Microsoft 365 and Copilot, the opinion raises immediate questions about platform configuration, data governance and e-discovery readiness.”
• “Recording and transcription are no longer just discrete, intentional acts by meeting participants. They can also be triggered by default settings, enabled automatically when Copilot features are used or initiated by any meeting participant. The resulting data artifacts can proliferate across mailboxes, OneDrive accounts and SharePoint sites in ways that create novel challenges for preservation and collection.”
• “This article explores those technical realities and offers guidance for aligning the Microsoft 365 environment with the opinion’s requirements.”
  • “1. The opinion emphasizes obtaining client consent before recording. How does Microsoft Teams handle consent notification, and what configuration options are available?”
  • “2. The opinion distinguishes between recordings that persist — i.e., a kept record of a conversation that may be relied upon years later — and those that don’t, i.e., those that exist only long enough to support other Copilot features. What are the Copilot configuration options in Teams meetings, and how do they affect data retention?”
  • “3. Where are these AI-generated artifacts actually stored? How does this affect data mapping and legal holds?”
  • “4. The opinion emphasizes the duty of competence and the need to review AI-generated content for accuracy. What accuracy concerns may arise with Teams AI features? “
  • “5. Are there other AI features that create artifacts without direct user action that organizations should be aware of?”
  • “6. What practical steps should organizations take to configure their Microsoft 365 environment in alignment with the opinion’s requirements of consent, confidentiality and accuracy?”

“Johnson & Johnson Gets Beasley Allen Tossed From Talc Cases” —

• “Beasley Allen, one of the leading trial firms taking on Johnson & Johnson in the sprawling multi-district talc litigation, has been disqualified by a federal court.”
• “Thursday’s ruling from a New Jersey federal magistrate judge removes the Alabama-based firm from the litigation, in which customers claim J&J talc products are responsible for their ovarian cancer.”
• “The decision sprang from a request from J&J after Beasley Allen met with a former lawyer for the medical products company in a mediation which the company said was tantamount to a lawyer switching sides. Beasley Allen was disqualified from hundreds of New Jersey-based state court cases in February.”
• “‘Disqualification is a remedy courts are not quick to administer,’ US District Court for the District of New Jersey Magistrate Judge Rukhsanah L. Singh said in her opinion. ‘Yet, there are moments when it is necessary when balancing the equities and interests. This is such a moment.'”
• “Singh’s ruling, like the New Jersey state decision, found that Beasley Allen associated with James Conlan, a former J&J attorney that worked on the company’s efforts to resolve the talc litigation through bankrupcty.”
• “The company attempted multiple times to separate itself from these liabilities, but had those efforts rejected. Beasley Allen, one of the firms leading the plaintiffs committee steering the roughly 70,000 talc cases, opposed bankruptcy attempts and collaborated with Conlan in an effort to find an alternative route.”
• “The idea: a consulting firm Conlan ran could take on the liabilities and several billion dollars to fight the claims. J&J rejected the strategy from its former lawyer and sought to have Beasley Allen disqualified for ‘associating’ with the former J&J lawyer who was involved in high-level confidential discussions on these matters.”
• “‘Indeed, there are many lawyers representing thousands of Plaintiffs in this MDL who have not generated the concerns Beasley Allen has,’ said Singh. ‘All Plaintiffs involved in this matter deserve to be represented by counsel who take seriously their ethical obligations and who are above reproach.'”
• “The federal ruling comes as bellwether cases are set to begin this year across the country. Singh said that Beasley Allen’s clients have joint representation, so other lawyers will be able to carry their cases forward.”
• “‘All involved (both past and present) have expended substantial time and effort to manage this unwieldy and beleagured matter,’ Singh said. ‘To permit counsel—who has now been disqualified in the NJ MCL—to remain here threatens to make those endeavors a futility by tainting proceedings going forward.'”
• “J&J worldwide vice president of litigation Erik Haas criticized Beasley Allen’s role in the years-long litigation and praised the ruling. ‘The Court found that Beasley Allen improperly collaborated with Johnson & Johnson’s former lawyer—conduct that strikes at the very core of the attorney‑client relationship and violates the most basic, bright‑line ethical rules governing the legal profession,’ he said in a statement. ‘No litigant should be forced to defend itself against opponents who enlist former defense counsel, secretly confer on litigation strategy, and misuse privileged access for their own gain.'”
• “Beasley Allen is fighting to stay in the case. They’re appealing the federal ruling, ‘and we are confident in our position,’ firm managing partner Tom Methvin said in a statement.”
• “The firm has also filed an appeal of the state decision in the New Jersey Supreme Court seeking a lifeline to save the roughly 50,000 hours it’s invested in roughly 11,500 cases across the country.”

“Conflict of Interest Does Not Automatically Extinguish Attorney-Client Privilege” —

• “Summary: Even if an attorney would be disqualified from representing a client due to a conflict of interest, a court may not compel the disclosure of privileged communications because the conflict of interest does not automatically eliminate the attorney‑client privilege.”
• “Columbia University sued Gen Digital (Norton) seeking, among other claims, correction of inventorship of Norton’s U.S. Patent No. 8,549,643 to identify two Columbia professors as the true inventors or at least joint inventors. After jury trial, the district court entered judgment correcting inventorship to add the Columbia professors as joint inventors. The district court also awarded Columbia enhanced damages for infringement and attorneys’ fees.”
• “In connection with the inventorship issue, Columbia argued that Norton’s counsel, Quinn Emanuel, improperly represented both Norton and a former Norton employee, Dr. Dacier, and improperly prevented Dacier from testifying at trial in support of Columbia’s inventorship claims. Norton originally identified Dacier as a fact witness regarding the inventorship issue. But during a years-long stay in the litigation, Dacier met with one of the Columbia professors at a professional event and expressed regret for Norton’s conduct regarding the inventorship issue. Columbia then contacted Dacier, who said he was unrepresented, to have him testify in support of Columbia’s inventorship claims. Norton then reconfirmed that Quinn still represented Dacier. Before trial, Quinn represented that Dacier had moved to Saudi Arabia and would not attend the trial.”
• “During motions in limine, the district court sua sponte ruled that Quinn had a conflict of interest in representing Dacier based on his expressed regret over Norton’s conduct. The district court ruled the conflict ‘voided’ the retainer agreement and ordered Quinn to disclose information obtained from Dacier during the conflict period. Quinn refused and asserted attorney-client privilege. After trial, Columbia continued seeking Quinn’s compliance with the disclosure order to support an award for enhanced damages or attorneys’ fees. The district court held Quinn in civil contempt and imposed a negative‑inference sanction for purposes of enhanced damages and attorneys’ fees in the related infringement dispute.”
• “The Federal Circuit reversed the disclosure order and the order holding Quinn in contempt. The court held that a conflict does not automatically terminate the attorney‑client relationship or vitiate attorney-client privilege, making the disclosure order invalid. Because civil contempt requires violation of a valid decree, the invalid disclosure order could not support contempt sanctions. As a result, the court also set aside the district court’s award of enhanced damages and attorneys’ fees, which were based in part on the contempt sanctions.”

Measure HB5487 was approved by a House judiciary committee last week. Context: “Illinois lawmakers move to limit investor influence as law firms, private equity edge closer” —

• “Legislation… would sharply curb private-equity involvement with law firms, erecting new state-level guardrails just as investors and lawyers nationwide are increasingly exploring back‑office partnerships and taking advantage of loosened regulations on law firm ownership in Arizona.”
• “Investors and other non-lawyers are broadly prohibited from owning direct stakes in U.S. law firms. One partial workaround that’s recently gained attention is the management services organization, or MSO: a separate company that runs a law firm’s business functions such as technology, HR and operations, collecting service fees without receiving a share of its profits.”
• “The matching Illinois House, and Senate bills, introduced on February 6, would bar private equity groups, hedge funds and MSOs they control from interfering with ‘the professional judgment’ of lawyers; from owning or determining the content of client records; from hiring or firing attorneys or staff based on competency or proficiency; or from setting those proficiency parameters.”
• “The bills would also prohibit outside investors from charging any fee ‘directly or indirectly’ tied to a firm’s fees, revenue or profits and from imposing non-compete agreements and non-disparagement agreements on lawyers and staff.”
• “They would also limit Illinois lawyers’ ability to share fees with out-of-state ‘alternative business structures’ like those allowed in Arizona unless the Illinois attorney is licensed where the ABS is approved, and the fees are for work performed in that state.”
  Violations could carry steep consequences: attorney discipline, statutory damages of $10,000 per violation, or treble actual damages, plus fees and injunctive relief.”
• “Arizona, meanwhile, has licensed more than 125 entities to provide legal services through its alternative business structure program, making it the most permissive jurisdiction for non-lawyer ownership of legal service providers and a key testing ground for non-lawyer or investor-backed law firms. Last year, KPMG under Arizona’s program became the first of the Big Four accounting firms to launch an affiliated law firm.”
• “Some legal ethics practitioners argue the Illinois bills may test constitutional boundaries. Holland & Knight partners Trisha Rich and Joshua Porte, who have advised on MSO deals, said in a client alert that the legislation may intrude on the Illinois Supreme Court’s exclusive authority over attorney regulation.”
• “Austin Maloney, a Hunton Andrews Kurth partner who advises MSO investors, said the proposal is ‘somewhere between a nothing-burger and problematic,’ pointing particularly to the language barring ‘indirect’ ties between law firm and MSO fees. Because every vendor relationship ultimately depends on firm revenue, ‘everything is indirectly tied,’ he said.”

“Big Law Cuts Back on Investor-Funded Lawsuits as Scrutiny Grows” —

• “Big Law is backing away from investor-funded lawsuits, as the practice adds potential complications at firms and comes under attack on Capitol Hill. The firms also took fewer investor dollars that backed portfolios of cases, possibly because such groups of lawsuits could create tension between attorneys handling the various suits, said Charles Agee, Westfleet’s chief executive officer. ‘Partner A feels that his really good, strong, high-value case is being weighed down by Partner B’s weaker case,’ he said.”
• “The 200 largest US law firms accounted for just under a quarter of investors’ new case commitments as of June 30 2025, down from 37% in the same period in the previous year, according to a Westfleet Advisors report released Wednesday.”
• “The pullback reverses the trend in recent years that saw the biggest firms grow comfortable with third-party investments for the cost of lawsuits, a practice known as litigation finance. The investors in return for financing get a piece of any successful court awards or settlements.”
• “Litigation finance grew to $16.1 billion of assets under management in the year ending mid-2024, an increase from less than $10 billion five years earlier, according to Westfleet. The money flow drew the ire of businesses who were alarmed by the prospect of frivolous lawsuits. Some US lawmakers last year pushed aggressively—though ultimately unsuccessfully—for legislation to curtail the practice.”
• “‘It definitely had an impact,’ said Agee, whose firm advises funders, law firms, and clients on deals and transactions. ‘We were advising on transactions that should have closed in May or June of last year, but because of all the uncertainty wound up closing in July, August.'”

“US judge will not toss Charlie Javice conviction for defrauding JPMorgan based on clerks’ alleged conflicts” —

• “A federal judge on Tuesday rejected Charlie Javice’s bid to throw out her conviction for defrauding JPMorgan Chase into buying her education startup Frank for $175 million, after she said two law clerks had conflicts of interest by accepting jobs at the bank’s outside law firm.”
• “U.S. District Judge Alvin Hellerstein in Manhattan said his clerks’ past and future employment at Davis Polk & Wardwell, including as summer associates prior to their clerkships, ‘did not create an appearance of partiality’ requiring a new trial for Javice and co-defendant Olivier Amar,”
• “Frank’s former chief growth officer. Hellerstein, 92, also said there was no proof he relied too heavily on his clerks, including when the defendants accused a clerk of ‘participating in real time’ in decisions about important testimony, and no reasonable person who watched the entire case would question his impartiality. “‘The evidence in this case was strong, and there is no concern here that an innocent person may have been convicted,’ he added.”
• “Davis Polk has more than 1,000 lawyers according to its website, and neither the law firm nor JPMorgan was a defendant in the criminal case. Javice, 34, founded Frank in 2017 and won praise for simplifying college financial aid for students and parents. Prosecutors said she deceived JPMorgan by claiming Frank had far more customers than it actually had.”
• “JPMorgan Chief Executive Jamie Dimon has called the 2021 purchase a ‘huge mistake.’ Hellerstein sentenced Javice to 85 months in prison and Amar to 68 months in prison. Both were convicted last March of ?bank fraud, securities fraud, wire fraud and conspiracy to defraud. Javice has appealed her conviction. Amar is scheduled to surrender on May 5, Hellerstein said.”

“McGuireWoods Beats Sun Pharma’s DQ Bid In NJ Suit” —

• “A New Jersey federal court has denied Sun Pharmaceutical’s bid to disqualify McGuireWoods LLP from representing pharmaceutical company Biofrontera in litigation over the alleged breach of a settlement agreement, ruling the firm’s continued representation won’t harm Sun Pharmaceutical and will avoid significant harm to Biofrontera.”
• “U.S. Magistrate Judge J. Brendan Day held in a redacted opinion that while McGuireWoods attorney Kevin Madagan’s previous work for Sun Pharmaceutical as a regulatory lawyer at another firm disqualifies him from the Biofrontera case, and imputes that conflict to McGuireWoods, disqualifying McGuireWoods at this state in the case would be ‘immense and unfair.'”
• “‘In the court’s judgment, this is the rare case in which the balance of equities tips decisively against disqualification and in favor of allowing Biofrontera to maintain its counsel of choice,’ the judge said in the opinion dated Feb. 25 and filed Friday.”
• “Judge Day found disqualification was not warranted for several reasons: McGuireWoods didn’t violate New Jersey’s Rules of Professional Conduct when it screened Madagan from the case at the time he joined the firm; Sun Pharmaceutical did not move for disqualification for more than a year after the conflict arose; Sun Pharmaceutical significantly overstated the prejudice it would face; disqualifying McGuire Woods would upend the years it spent developing its familiarity with the case; and the disqualification would result in months, if not years, in delays.”
• “The judge also cited the unique and unprecedented circumstances of the case and the facts that led to the conflict as reasons for not disqualifying McGuireWoods.”
• “According to the opinion, Sun Pharmaceutical argued McGuireWoods should be disqualified because Madagan had provided regular legal advice to Sun Pharmaceutical on multiple issues at the core of Biofrontera’s counterclaims while he was at Reed Smith LLP, and that New Jersey’s Rules of Professional Conflict 1.10 imputes that conflict to McGuireWoods.”
• “The judge noted, however, the question is one of first impression and one that the Supreme Court of New Jersey or the New Jersey Advisory Committee on Professional Ethics may wish to clarify ‘how to address imputation and screening of conflicts arising from a corporate, regulatory, or transactional lawyer’s legal advice to a former client well before litigation unfolds.'”
• “According to the opinion, imputation and screening issues most often arise when an attorney advises a client in connection with litigation and then switches to a firm representing the adversary in litigation. Judge Day said although he sides with Sun Pharmaceutical’s reading of the rules of professional conduct at issue, Biofrontera’s reading of the rule is ‘neither implausible nor unreasonable.'”
• “‘Although the court has concluded above that the best reading of the rule applies to this situation, it agrees with Biofrontera that, in the balance of things, it would be unfair to penalize it and its chosen counsel on a close question of first impression,’ Judge Day said.”
• Decision: here.