Bressler Risk Blog

“Update to ‘Conflict U.’: Some Judges Are Recusing Due to a University Conflict” —

• “In July, Fix the Court released a report called “Conflict U.” that identified 24 federal judges who did not recuse in six dozen cases involving the universities where they also serve as law school instructors. This practice raises clear conflict-of-interest concerns, despite being sanctioned by judiciary policy.”
• “This past month, Fix the Court conducted follow-up research on this issue, and what we found was somewhat surprising: several judges with adjunct positions at law schools are, in fact, choosing to recuse when the law schools’ parent universities find themselves in their courtrooms. And at least one judge (we have another in mind but are double-checking) is recusing due a spousal connection to a university. N.B.: the Buescher and Koeltl examples were included in ‘Conflict U.,’ though the others were not.”
• “1. In June, D. Neb. Judge Brian Buescher recused in Mohammed v. Creighton University (filed 12/9/24; last filing 6/3/25; recusal order entered 6/2/25) likely because he serves as an instructor at Creighton University School of Law.”
• “2. In May, N.D. Ga. Magistrate Judge Anna Howard recused in Manuel v. Georgia State University (filed 5/5/25; last filing 6/16/25; recusal order entered 5/6/25). According to her LinkedIn profile (she’s a 2025 appointee, and her initial financial disclosure isn’t yet posted in the online database), Howard teaches at the University of Georgia School of Law, which, alongside Georgia State, is part of the University System of Georgia.”
• “3. In April, D. Mass. Judge William G. Young recused in Curtin-Wilding v. Trustees of Boston University (filed 2/21/25, last filing 8/27/25; recusal order entered 4/29/25). We believe the recusal occurred due to Young’s prior teaching at BU Law, from 1979 to 2020, which is mentioned in the defendant’s motion for recusal.”
• “4. In April, S.D.N.Y. Judge John Koeltl recused in Thomas v. New York University (filed 3/26/25; last filing 6/20/25; recusal order entered 4/1/25 [text-only in the docket]) likely because he serves as an adjunct at NYU School of Law.”

“Judge agrees to recusal in Oregon National Guard lawsuit after Trump Justice Department complaint” —

• “The federal judge overseeing a lawsuit to block the deployment of Oregon National Guard troops to Portland agreed Thursday to recuse himself after attorneys for the U.S. Department of Justice questioned his ability to appear impartial.”
• “U.S. District Court Judge Michael Simon’s spouse, Rep. Suzanne Bonamici, is a Democrat in Congress. Attorneys for the government argued in a court filing submitted Thursday that Bonamici has pushed back against President Donald Trump’s decision to federalize 200 Oregon National Guard troops to guard federal property in Portland, including the U.S. Immigration and Customs Enforcement Building south of downtown.”
• “‘To be sure, Defendants recognize that Judge Simon and Representative Bonamici speak for themselves, not for each other,’ the Justice Department filing stated. ‘Nonetheless, the unique factual, legal, and political role that Judge Simon’s spouse has played in the central events of this lawsuit may create the appearance of partiality.'”
• “In response, Simon issued a brief order stating he ‘does not believe that recusal is required under either federal law’ or a code of conduct for federal judges. Simon said ‘because it is necessary that the focus of this lawsuit remain on the critically important constitutional and statutory issues presented by the parties’ he would step aside. The judge noted the Justice Department raised the issue three days after an initial hearing and less than 24 hours before a hearing Friday on a restraining order to block the deployment.”

“Known Risk, No Coverage: Prior Knowledge Exclusion Applies Based on Probate Allegations” —

• “The United States District Court for the District of New Jersey, applying New Jersey law, has held that a prior knowledge exclusion barred coverage for a legal malpractice claim arising from a probate dispute because a reasonable attorney would have believed that the lawyer breached a professional duty or otherwise foreseen the potential for liability. Ascot Specialty Ins. Co. v. Mason, Griffin & Pierson, P.C., 2025 WL 2388433 (D.N.J. Aug. 18, 2025).”
• “In December 2020, the estate of a deceased client filed a probate action alleging that a lawyer assisted the deceased client’s wife in the misappropriation of estate assets. A few months later, the lawyer’s firm purchased a professional liability policy. The policy contained a prior knowledge exclusion, which barred coverage if, prior to the inception of the policy, an ‘Insured has any basis (1) to believe that any Insured breached a professional duty; or (2) to foresee that any such Wrongful Act or Related Circumstances might reasonably be expected to be the basis of a Claim against any Insured.'”
• “In January 2023, the estate filed a lawsuit alleging that the insured lawyer committed legal malpractice by ‘knowingly,’ ‘intentionally,’ or ‘negligently’ assisting in the tortious misappropriation of estate assets. The insurer denied coverage for the malpractice action under the prior knowledge exclusion.”
• “The court found that the probate action sought to disqualify the lawyer for conflicts of interest and his ‘knowing and intentional facilitation of’ tortious transfers. The court determined that those allegations alone demonstrated that a ‘reasonable attorney’ would either (1) believe that the lawyer breached a professional duty by allegedly assisting in the tortious transfer of estate assets; or (2) foresee that the lawyer’s alleged actions might reasonably be expected to be the basis of a future claim against any insured.”
• “The court noted that the malpractice action contained similar allegations as the probate action, further demonstrating that the insureds should have foreseen a legal malpractice claim against them. As such, the court held that the prior knowledge exclusion barred coverage for the malpractice action.”

“Civil Action No. 21-cv-02681-RM-NRN” —

• “During discovery, Plaintiffs sought to depose four of Defendant’s former employees who held managerial positions during the relevant period: Kierra Howlett, Kristi Adkins, Eric Girard, and Kevin Copeland. Seyfarth reached out to these individuals, agreed to represent them at their depositions, and entered engagement agreements with them. Defendant paid for the representation.”
• “Seyfarth proceeded to represent Howlett, Adkins, and Copeland at their depositions; Girard’s scheduled deposition has been stayed. Seyfarth terminated its representation of Howlett, Adkins, and Girard after learning that they previously worked for Defendant in hourly positions during the relevant period. It has not terminated its representation of Copeland, as he was never an hourly employee. In the current Motion, Plaintiffs assert that Seyfarth violated ethical rules by soliciting and representing Defendant’s former employees, some of whom are potential class members, and therefore Seyfarth should be disqualified and Defendant sanctioned.”
• “Plaintiffs argue that Seyfarth violated the Colorado Rules of Professional Conduct because Girard and Howlett ‘are confirmed members of the putative class’ and Adkins ‘may also be a class member.’ (ECF No. 91 at 3.) They also argue it was improper for Seyfarth to solicit the four former employees and for Defendant to pay for the representation.”
• “In response, Defendant contends that Seyfarth was unaware that any of these former employees were potential class members when it agreed to represent them in connection with their depositions, and that it terminated its representation of Howlett, Adkins, and Girard upon learning that they worked in hourly positions during the relevant period.”
• “Defendant also contends that Copeland is not a potential class member because he was never an hourly employee.Assuming Plaintiffs—who have never been clients of Seyfarth—have standing to seek disqualification under the present circumstances… the Court finds their allegations are insufficient to establish that the limited representation here adversely affected the integrity of the judicial process, much less that any such impact outweighs Defendant’s right to counsel of its choice.”
• “First, citing Colo. RPC 1.7, Plaintiffs argue that Seyfarth’s representation of Howlett and Girard created a conflict of interest. But that Rule applies to representation involving ‘a concurrent conflict of interest.’ Here, neither individual is a party to this litigation as the case now stands… and Seyfarth withdrew its representation of both individuals once a potential conflict came to light.”
• “In the absence of a certified class, the Court is not persuaded these potential class members had any interest that was directly adverse to Defendant’s interests in this litigation. And, in the absence of even a motion for class certification, Plaintiffs’ suggestion that Seyfarth would need to be ‘actively fighting class certification’ (ECF No. 91 at 9) is premature.”
• “Nor has Plaintiff shown a significant risk that Seyfarth’s brief representation of these witnesses was limited in any way by its responsibilities to Defendant, much less that it was ‘materially limited’ as to run afoul of Rule 1.7(a)(2). Second, even if a concurrent conflict of interest existed at the time of Seyfarth’s representation, Plaintiffs have not shown that the requirements of Rule 1.7(b) were not satisfied. Plaintiffs have not shown that Seyfarth had any reason to believe it could not provide competent and diligent representation to these individuals.”
• “The representation was not prohibited by law. And, although Howlett expressed interest in becoming a class member and receiving compensation if Plaintiffs’ case is successful, that does not mean she was asserting a claim against Defendant at the time of the representation.”
• “Moreover, Howlett and Girard gave their informed consent to the representation in their engagement agreements. Contrary to Plaintiffs’ argument, that consent is not negated in Howlett’s case by her tentative and somewhat ambiguous deposition testimony about conflicts of interest generally. Under the circumstances, the Court is not persuaded that Seyfarth’s last-minute discovery of potential conflicts demonstrates that it lacked reasonable procedures to determine whether conflicts exist or that it should have anticipated that these witnesses could qualify as class members.”
• “Accordingly, the Court declines to disqualify Seyfarth because of any concurrent conflict of interest. Third, Plaintiffs’ reliance on Colo. RPC 1.9, which governs a lawyer’s duty to former clients, is also misplaced here.”
• “Because no class has been certified, the Court cannot conclude that these individuals’ interests are ‘materially adverse’ to Defendant’s interests. And, as discussed above, these individuals gave their informed consent to being represented simultaneously with Defendant. See id. Nor have Plaintiffs shown that by conducting pre-disposition meetings with these individuals, Seyfarth obtained confidential information that Defendant might use to their disadvantage.”
• “Thus, Plaintiffs have not established that Seyfarth violated any duty it owed to its former clients or that any potential conflict of interest tainted the fairness of these proceedings.
• “Fourth, Plaintiffs also contend that Seyfarth’s representation of the former employees violates Rules 1.8(f) and 3.4(b) because Defendant paid for the representation. But again, Plaintiffs have not shown that the consent these individuals provided is invalid.Plaintiffs also have not shown that there was any interference with counsel’s professional judgment or any client-lawyer relationship.”
• “Plaintiffs’ suggestion that Defendant paid for the representation for the purpose of influencing anyone’s testimony is unsubstantiated. There is no indication, for example, that these witnesses were induced to give testimony favorable to Defendant as part of quid pro quo arrangement.
• “Finally, Plaintiffs have not shown that Seyfarth engaged in inappropriate solicitation of clients. Seyfarth apparently reached out to the former employees to advance discovery in this case, but there is no indication that it was motivated by pecuniary gain. Like Plaintiffs’ other arguments, this one is speculative and lacks factual support.
• “Aside from failing to establish an ethical violation by Seyfarth, Plaintiffs have not demonstrated they have been prejudiced in any way by the testimony provided by these potential class members. In the absence of any showing that Defendant or Seyfarth violated ethical rules, the Court concludes that Plaintiffs’ request to have these witnesses or their testimony stricken as a sanction is unavailing. Accordingly, Plaintiffs’ Motion (ECF No. 91) is DENIED.”

“Husband of judge who blocked ‘Alligator Alcatraz’ shutdown has ties to DeSantis” —

• “An appeals court judge who blocked the closure of Ron DeSantis’s controversial ‘Alligator Alcatraz’ immigration jail is married to a powerful conservative attorney whose law firm has raked in millions of dollars from the Republican Florida governor’s administration, it has been revealed.”
• “Barbara Lagoa authored the 11th circuit court of appeal’s 2-1 ruling last month that paused the Miami district judge Kathleen Williams’s earlier order that the harsh detention facility in the Florida Everglades must be wound down within 60 days.”
• “Lagoa is married to Paul Huck, a senior figure in Tallahassee-based Lawson Huck Gonzalez that is ‘one of Florida’s most politically connected conservative law firms’, according to Prism, an online news outlet that first reported the news.”
• “The law firm, founded in 2023, is tightly aligned to DeSantis’s far-right agenda and has secured more than $10m in state contracts since, WUSF reported. It represents the DeSantis administration in a lawsuit against the retailer Target over its 2023 Pride campaign and was recently hired to assist the search for a new president at the University of West Florida, where DeSantis is engineering a ‘hostile takeover’ of the formerly liberal college.”
• “Prism said it was ‘not apparent’ that Huck or his firm had a financial interest in any matter related to ‘Alligator Alcatraz’, the state-run remote tented camp for undocumented migrants that has been criticized for its harsh conditions and treatment of detainees.”
• “But immigration advocates and Florida Democrats say the fact that Lagoa is making rulings in favor of the DeSantis administration while her husband is benefiting financially from it is a massive conflict of interest and grounds for her recusal.”
• “Anna Eskamani, a Democratic state representative, said Lagoa’s refusal to recuse herself ‘further erodes people’s trust in the judiciary’.”
• “In a statement, she said: ‘It’s concerning to have on such an important case with huge ramifications for the environment a judge with that power to decide on this matter, with a husband that is working on high-profile political cases on behalf of DeSantis.'”
• “The Guardian has contacted Lagoa and Lawson Huck Gonzalez for comment.”
• “In a statement to Prism, Lagoa’s office pointed to judicial ethics rules that require recusal ‘if a judge has a personal bias or prejudice concerning a party, has previously served as a lawyer or government official in the matter, has a financial interest in the outcome, or if the judge’s spouse or close family member has such an interest or role’.”

“County’s Pharmacy Chief Also Works at a Law Firm” —

• “The county of San Diego’s chief pharmacy officer, who collects a $232,419 yearly salary, moonlights as a partner at a New York-based law firm that advises pharmaceutical companies. County officials refused Voice of San Diego’s request for disclosure documents that county staff must submit about outside work or other activities that may conflict with their county duties.”
• “Dr. Emily Do is the county’s full-time chief pharmacy officer, who oversees county pharmacy practices and standards and has been in that role since 2019. In April, she joined the law firm Dilworth & Barrese as a partner and patent attorney, according to her LinkedIn profile. The firm’s website lists Do as a partner and member of its West Coast team based in San Diego. The firm also notes that it ‘serves as counsel for leading companies in the pharmaceutical industry’ but doesn’t identify specific ones.”
• “‘Emily Do is a registered patent attorney and works with independent inventors, healthcare and pharmaceutical companies to protect their intellectual property interests in the United States and abroad,’ her Dilworth & Barrese bio reads. The law firm bio doesn’t mention that Do is also San Diego County’s chief pharmacy officer – or specific companies she has advised.”
• “Per a 2018 county job description, the chief pharmacy officer works with county Health and Human Services officials, including pharmacy staff, to implement pharmacy policies and standards, recommend changes to county pharmacy services ‘based on community need’ and ensure the county is following regulations. ”
  “In a more recent statement seeking to become the next president of the California Society of Health-System Pharmacists, Do wrote that her county role has also involved advocacy for legislation such Senate Bill 872, which in 2022 allowed counties to operate mobile pharmacies to provide medications and vaccines to homeless residents and others. Do is now set to become the state society’s next president. ”
  “County officials have decided Do’s legal work doesn’t present a conflict. ‘Providing records regarding an employee’s activities outside of work, which has not been deemed to constitute a conflict, would impede on an individual’s personal life and right to privacy,’ the county wrote in its Monday response denying Voice’s records request. ‘Therefore, withholding these documents clearly outweighs the public interest in the disclosure of these records.'”
• “County spokesperson Tim McClain wrote in a separate statement that that ‘based on the information provided by Dr. Do as required by county policy, no incompatible activities were identified.’ “
• “Do has for years juggled both pharmaceutical and legal work. At the time the county hired Do, her LinkedIn page indicates that she was practicing intellectual property law as a sole proprietor though she didn’t report any related income in state-mandated economic disclosures for 2019. Her disclosures only mention volunteer legal work for two local organizations.”
• “Do’s latest disclosure, filed in March for 2024, does not include income or details on her work as a partner at Dilworth & Barrese. “
• “The county this week denied Voice of San Diego’s state Public Records Act request for county forms that Do may have submitted reporting her outside employment. In those forms, county officials are charged with reporting outside activities or jobs they are paid for and their duties so the county can decide whether that work is incompatible with their county job.”

“[IN CHAMBERS] Order Regarding Motions to Disqualify [90,187]” —

• “Schulte is a multi-national law firm that, as discussed below, has represented Politan, Masimo, and RTW Clients in various capacities… Adriana Schwartz (‘Schwartz’) is the Schulte partner who primarily advised RTW Clients. Swartz is a former litigation partner at Schulte who represented Politan and later Masimo. Swartz is now a partner at Quinn Emanuel, another multi- national law firm, which has assumed representation of Masimo in this action.”
• “In November 2021, RTW Clients retained Schulte to advise them on regulatory and securities matters related to investment, including Sections 13 and 16 of the Exchange Act. Their Engagement Letter included an advance waiver of conflicts of interest permitting Schulte to represent clients ‘directly adverse’ to RTW Clients, including ‘on opposite sides of a litigation or proceeding.’ Schwartz was the Schulte attorney ‘primarily responsible for the RTW account.'”
• “Shortly before Schulte’s representation of RTW Clients, Swartz and Schulte were engaged by Politan in July 2021. Schulte and Swartz subsequently represented Politan in its proxy contest to elect new board members on Masimo’s board in 2024. This included suing Kiani in the Delaware Court of Chancery and issuing a third-party subpoena on RTW Clients.”
• “On July 3rd of the same year as Schulte’s representation of Politan in the proxy contest, Senior Counsel for RTW Clients, Alice Lee, called Schwartz for advice related to RTW Clients’ investment holdings and empty voting. When Lee disclosed that her questions were in relation to the Masimo proxy contest, Schwartz informed Lee that she could not provide advice related to Masimo due to a conflict at the firm.”
• “Despite knowledge of a potential conflict, Schulte did not erect an ethical wall around Schwartz until August 27, 2024, when Swartz conducted a conflicts check before filing a third-party subpoena on RTW Clients. As lead partner for the Politan matter, Swartz was then barred from receiving information related to RTW Clients or discussing anything related to Politan, Masimo, or RTW Clients with Schwartz or other attorneys on the RTW Clients advisory matter.”
• “After Politan’s successful proxy battle, Masimo engaged Swartz and Schulte to represent it in this action filed against RTW Defendants in October 2024 in the Southern District of New York (‘SDNY’). Schulte refused RTW Client’s request to voluntarily withdraw.”
• “In March 2025, Swartz left Schulte to join Quinn Emanuel. Shortly thereafter, Masimo signed an engagement letter with Quinn Emanuel to represent it in this action on April 7, 2025. After the action was transferred to this Court, all of the remaining Schulte attorneys gave notice that they would not be appearing for Masimo. Only Quinn Emanuel attorneys remain in the action and Swartz is the only former Schulte attorney who has appeared for Masimo since transfer.”
• “The crux of this Motion is Swartz’s alleged conflict of interest as lead attorney for Masimo. Although Swartz has left Schulte for Quinn Emanuel, he may nonetheless be subject to disqualification for his prior association with Schulte under a concurrent representation analysis. No determination is necessary, however, if RTW Clients effectively waived their right to move for disqualification under the Engagement Letter with Schulte. Any advance waiver would necessarily include the future activities of the firm and its partners, including Swartz.”
• “However, advance waiver for concurrent representation conflicts that might arise in the future may be effective when a client ‘reasonably understands risks that the waiver entails.'”
• “Here, there is no doubt that RTW Clients, a hedge fund manager and its affiliates, are sophisticated users of the investment advisory services it sought from Schulte and multiple other law firms.  The Engagement Letter was extensively negotiated by in-house counsel capable of advising RTW Clients of the risks of signing the waiver. RTW Clients even identified and required the inclusion of specific parties that Schulte would not represent without prior written consent.”
• “Engagement Letter also informed RTW Clients of the conflicts that they were agreeing to waive, including the situation here. The Engagement Letter states that Schulte ‘would not be disqualified . . . from representing another client in a litigation or other proceeding that is adverse to you as long as the Firm is not then representing you in that matter.’ The crux of the issue that parties dispute is whether Schulte’s representation of Masimo against RTW Defendants constitutes the same ‘matter’ as legal services provided to RTW Defendants under the Engagement Letter.”
• “RTW Clients seek to construe ‘matter’ under the advance waiver of conflicts as the ‘Matter’ as defined on page one of the Engagement Letter: ‘to represent and advise . . . in connection with general investment advice, securities law and related matters.'”
• “The Court agrees with Masimo that this broad interpretation of ‘matter’ under the advance waiver would lead to an absurd result by rendering the waiver virtually useless, preventing representation against RTW Clients, a hedge fund manager, for any matter related to a topic of ‘general investment advice.'”
• “See e.g., Saffire Corp. v. Newkidco, LLC, 286 F. Supp. 2d 302, 308 (S.D.N.Y. 2003) (‘Under traditional contract interpretation rules, a provision may not be interpreted in a manner which would render it an absurdity.’) Further, had the parties intended for this meaning of ‘matter’ to apply, they would have used the defined term ‘Matter’ from the Engagement Letter, which they did not. (Engagement Letter at 4.)”
• “In the Engagement Letter, Schulte also agreed to ‘adhere[] to its professional obligation not to disclose any confidential information or to use it for another party’s benefit.’ To the extent any confidential information was disclosed in the phone call or through general representation between Lee and Schwartz, Schwartz has attested that she did not reveal any relevant information about RTW Clients to any litigators representing Masimo at the firm.”
• “As a sophisticated user of legal services, RTW Clients understood well the risks of signing an advance waiver. So long as Schulte did not represent an adverse party in a matter in which they represented RTW Clients and did not use RTW Clients’ confidential information against them, the advance waiver forfeited RTW Clients’ right to assert Schulte’s representation of them ‘as a basis for disqualifying the Firm from representing another client of the Firm in any such other matter.’ Because Schulte did neither, the Court finds the advance waiver in the Engagement Letter effective under New York law, constituting the informed, written consent necessary under Rule 1.7.”
• “Swartz’s activity was necessarily covered under the terms of the advance waiver as a partner at Schulte. Swartz’s conduct was therefore non-disqualifiable under the same analysis completed for Schulte, and does not become disqualifiable simply because he has left the firm and joined Quinn Emanuel during the course of this litigation.”
• “As noted above, all attorneys actively associated with Schulte have withdrawn from this action. However, to the extent that Schulte might remain informally involved in this litigation, the Court finds that the foregoing advance waiver analysis applied to Swartz as a partner also applies to Schulte as a firm. Accordingly, the Court DENIES RTW Defendants’ motion to disqualify Schulte.”
• “Because the Court finds that Swartz has no disqualifiable conflict, there is no conflict to impute to Quinn Emanuel. The Court therefore DENIES RTW Defendants’ motion to disqualify Quinn Emanuel.”

“If Big Law Works on Trump’s Tariffs, Congress Should Pay For It” —

• “As part of their settlements with the Trump administration, several leading law firms reportedly have given free legal services to the Commerce Department.”
• “An important statute called the Anti-Deficiency Act generally requires that some existing appropriation—meaning a statute allowing Treasury expenditures—support any government contract or commitment of funds.”
• “Congress enacted the ADA in 1870 to stop such overspending. In its original form, the law forbid agencies from exceeding their appropriations or entering contracts without an appropriation to pay the resulting costs. But agencies still sometimes got around appropriations limits by having personnel work extra hours for free, hoping Congress would later pay them retroactively.”
• “In 1884, Congress added a provision forbidding such acceptance of ‘voluntary services’ except (in the current statutory formulation) ‘for emergencies involving the safety of human life or the protection of property.'”
• “Because agencies can’t incur spending obligations without a supporting appropriation, they can’t commit to paying employees’ wages until Congress appropriates new funds. And because agencies also can’t accept ‘voluntary services’ from employees hoping to later get paid, those employees can’t work at all for the government unless they fall within the exception for functions (like air traffic control and some law enforcement) that protect lives and property.”
• “How do these principles apply to the law firms? The administration and the firms will probably claim that the firms aren’t providing ‘voluntary services’ in the sense proscribed by the ADA because they aren’t hoping to get paid later. In fact, they may well have signed waivers disclaiming any such hope of future remuneration.”
• “Yet this theory may be a stretch in this context. For one thing, the firms are probably hoping to curry favor with the administration by providing so much work. For another, they hardly pledged these services gratuitously of their own free will in the way that a true unpaid volunteer normally would. On the contrary, the firms appear to be doing free work only because the administration took or threatened adverse actions against them such as revoking lawyers’ security clearances or seeking penalties for alleged civil rights violations due to DEI hiring.”
• “Regardless, the administration’s legal creativity in inducing free services from top-flight firms is a significant threat to congressional power. Congress creates federal agencies, such as the Commerce Department, and defines their budgets. It typically budgets for just one year at a time so that it can keep tabs on what agencies are doing and make any desired changes in the next annual appropriations cycle. It also calibrates the level of resources available for different agencies and functions. Congress determines in effect what laws will be vigorously enforced and which ones will be lower priorities or even not enforced at all.”
• “It’s also true that foreign affairs is an area of special presidential authority and that the services to the Commerce Department seem to have been related to negotiation of tariff deals. But while presidents have sometimes employed private parties voluntarily as diplomatic envoys, such envoys served of their own free will. In any event, demanding free legal work from the country’s top law firms is a far cry from the sort of control over diplomatic communications that presidents have previously claimed.”
• “This administration has sought in many ways to establish greater executive control over government spending. The law firm deals fit this pattern, and they may be a tempting example for future presidents: If budget deficits necessitate government austerity in the years ahead, presidents may find themselves looking for ways to accomplish their goals with private help instead.”

“Defence lawyer who slept with prosecutor stopped from testifying in conflict-of-interest motion” —

• “One of the two lawyers at the centre of a motion that could put an end to a cannabis trafficking case at the Montreal courthouse appeared before a Superior Court judge on Wednesday and was ready to testify, but he ultimately did not take the stand.
• “Defence lawyer Mathieu Rondeau-Poissant was in the courtroom before Superior Court Justice Gregory Moore, who is hearing evidence on a motion seeking to have a stay of proceedings placed on the charges filed against Bruno Desmarais, one of 10 men arrested in a Sûreté du Québec investigation dubbed Postcure.”
• “Weeks ago, Alice Bourbonnais-Rougeau, the lead prosecutor in Postcure, admitted to her superior in the Directeur des poursuites criminelles et pénales (DPCP) that she had intimate relations with Rondeau-Poissant late last year. She initially denied she and Rondeau-Poissant were anything more than friends, but ultimately confessed to her boss in June. She was told to work from home and to not handle any current cases.”
• “As part of his motion, Desmarais says Bourbonnais-Rougeau was potentially privy to defence strategy through the relationship and was therefore in a conflict of interest. If Moore rules that a stay of proceedings should be placed on the charges in Desmarais’s case, the same could apply for the other accused.”
• “Giuseppe Battista, a lawyer who is representing Bourbonnais-Rougeau, who has not appeared in court for the motion, said she is currently on sick leave until Nov. 30. When Moore asked the lawyers involved in the hearing if Rondeau-Poissant could testify on Wednesday, things became complicated.”
• “A prosecutor said the Crown could not call Rondeau-Poissant as a witness until the defence declares its evidence closed. Meanwhile, defence lawyers said Rondeau-Poissant should not testify until he has gone through evidence of messages he exchanged with the prosecutor. ‘I would like to see them before I take a stance on what can be disclosed,’ Rondeau-Poissant told the judge. Battista said reviewing the messages could take time and that it would be impossible to complete the process before the next scheduled court date on Friday.”
• “On Tuesday, Moore sentenced one of the men arrested in Postcure, Gerard Gauvreau, 59, of Oka, to a 12-month prison term to be followed by 12 months of unsupervised probation. In April, Gauvreau pleaded guilty to one count related to drug trafficking and a section of the Cannabis Act.”

“MSU hired lawyers with conflicting loyalties, Brenda Tracy says” —

• “A potential wrinkle has emerged in how Michigan State University is fending off a federal lawsuit filed by Brenda Tracy. The university has retained the multinational law firm Jones Day to defend against Tracy’s lawsuit, which alleges, among other things, that a trustee leaked her name to the media during a confidential investigation into former football coach Mel Tucker’s sexual harassment of her.”
• “Now, Tracy is claiming that Jones Day’s involvement in the suit represents a conflict of interest.”
• “The firm was previously hired by MSU to independently investigate whether someone associated with the university, including the trustees, leaked the existence of the investigation into Tucker or Tracy’s name. That probe, which ended in December 2023, was ultimately unable to conclude whether someone at MSU was behind the leak, and found no evidence that any trustee knew Tracy’s identity as the complainant before her name became public.”
• “That previous working relationship, Tracy said in an amended complaint filed Saturday in federal court, means that Jones Day has conflicting interests that would require the firm to discredit its own findings or undermine Tracy by ‘leveraging confidential information’ obtained during its previous investigation.”
• “Ethical standards in the legal profession require attorneys to avoid representing a client when the attorney’s responsibilities to another client, a former client or a third party can jeopardize the attorney’s ability to represent their client. Large firms like Jones Day, which has over 2,500 lawyers across 40 offices, are required to avoid conflicting loyalties within their firm. “
• “‘If one lawyer in a firm has a conflict, all the lawyers in the firm have a conflict, for the most part,’ said University of Illinois Chicago Law Professor Megan Bess. MSU’s decision to retain the same firm behind the initial investigation ‘eyebrow-raising,’ Bess said, though it’s unlikely that Jones Day has a material conflict of interest in the case. It’s possible that MSU simply picked the firm because its lawyers would be more familiar with the information relevant to the case, she said.”
• “One potential concern Bess raised was that the Jones Day attorneys could hypothetically use information they uncovered during the original investigation but never reported to aid their present-day defense.”
• “Terri Chase, the Jones Day attorney representing the university, did not respond to requests for comment before publication. Karen Truskowski, Tracy’s attorney, declined to comment.”
• “The filing also alleges that the university’s handling of Tracy’s complaint against Tucker was ‘heavily influenced’ by another conflict of interest: An apparent desire to satisfy MSU alum and superdonor Mat Ishbia.”
• “According to the filing, the Title IX Coordinator overseeing the investigation into Tracy’s complaint failed to inform Tracy that David Zacks, the now-deceased general counsel for a company owned by Ishbia, was representing Tucker in the investigation. That concealment, Tracy said, ‘created, at minimum, the appearance of donor-driven influence and institutional bias.'”
• “The amended complaint continues to accuse Trustees Rema Vassar and Dennis Denno, who are named as defendants in their official and individual capacities, of conspiring to retaliate against Tracy and interfere with her nonprofit and speaking venture. It asserts that the trustees’ actions furthering this conspiracy included ‘filing disparaging pleadings, leaking to media, and disclosing private facts.'”
  “Trustees Vassar and Denno did not respond to request for comment before publication.”

“Former judge pays civil penalty for conflict of interest violation” —

• “Former Probate & Family Court Judge Lawrence Army Jr. has paid a $4,000 civil penalty for violating the conflict of interest law by appointing his father as a special master to sell a home in a divorce proceeding.”
• “The Ethics Commission on Sept. 23 announced a disposition agreement in which Army admits to the violations and waives his right to a public hearing.”
• “In December 2022, while filling in for a judge at Essex Probate & Family Court, Army presided over a divorce proceeding in which the previous judge had ordered the sale of the marital home, according to the Ethics Commission. Following a hearing in which the parties reported they had not agreed to the terms of the sale, Army appointed his father, Lawrence Army Sr., as a special master for the sale of the home and set his fee at $450 per hour.”
• “Army’s appointment of his father was contrary to a Supreme Judicial Court rule requiring such fee-generating appointments to be made in order from a court-maintained list of persons eligible for appointment. Not only was Army’s father not the next available person on the Essex court’s list; his name did not appear on the list at all, the Ethics Commission said. Army’s father’s office was also approximately 65 miles from the property to be sold.”
• “First Justice Frances Giordano vacated Army’s appointment in January 2023 and appointed a different special master to sell the home. As a result, Army’s father did not receive any fee from the appointment.”
• “The conflict of interest law prohibits state employees from participating in matters in which members of their immediate family have a financial interest. It also prohibits public employees from using or attempting to use their official positions to obtain valuable, unwarranted benefits for anyone. In the disposition agreement, Army admits to violating both of these prohibitions.”
• “The full text of the disposition agreement can be found here. “

“Ex-GOP attorney general candidate temporarily loses law license over inappropriate relationship” —

• “The Illinois Supreme Court has ordered former Republican Illinois attorney general candidate Tom DeVore’s law license suspended for 60 days, following a yearslong public feud involving his client-turned-girlfriend and the state’s attorney discipline board.”
• “The court’s order affirms a recommendation this spring by the Illinois Attorney Registration and Disciplinary Commission, which found ‘clear and convincing evidence’ that DeVore’s actions related to Riley Craig had broken several Supreme Court ethics rules.”
• “Craig, a Springfield salon owner, was one of the hundreds of clients DeVore represented in dozens of lawsuits challenging Gov. JB Pritzker’s COVID-19 stay-at-home orders. In 2022, DeVore unsuccessfully ran to unseat Attorney General Kwame Raoul.”
• “DeVore, a lawyer from downstate Greenville, began a romantic relationship with Craig after filing suit on her behalf in May 2020, according to ARDC documents. Though Craig’s litigation against the Pritzker administration was unsuccessful, their relationship continued for nearly three years.”
• “In his defense against the ARDC case, DeVore claimed that his work as Riley’s attorney ended by the time their romantic involvement began in late May or June 2020. The ARDC disputed DeVore’s timeline, pointing to continued attorney behavior in that case.”
• “DeVore also went on to represent Riley in three other legal matters — including her divorce — that summer. That ‘demonstrated an unbroken continuation of his attorney-client relationship,’ the ARDC ruled.”
• “The disciplinary panel began looking into DeVore’s behavior in 2021, and during that initial investigation, Craig said she was not a client when their sexual relationship began. She repeated that claim on social media while DeVore was running for attorney general in 2022.”
• “But in May 2023, a few months after Craig and DeVore broke up, she ‘threatened to change her story’ to the disciplinary panel so that DeVore would ‘lose his law license,’ according to the ARDC report.”
• “The disciplinary panel pointed out that ‘even consensual sexual activity between an attorney and a client constitutes an impermissible conflict of interest because the attorney’s emotional involvement with the client creates a significant risk that the attorney’s independent professional judgment will be impaired.'”
• “DeVore also got involved in Craig’s business venture to launch a hair product business, for which the pair took out $600,000 in loans in 2021. But in doing so, the ARDC found DeVore failed to provide ‘required safeguards’ for Craig.”
• “DeVore declined to comment on the court’s order to Capitol News Illinois. His law license will be suspended for 60 days beginning Oct. 10.”

David Kluft asks: “Do I have to tell my client who my other clients are if there is no conflict?” —

• “An IL company found out that that a departing employee, who was in the process of starting a competing entity, had been in touch with the company’s outside counsel law firm.”
• “The company asked the law firm what was up, and the firm stated that it did not represent the departing employee in any matter adverse to the firm, but ‘if you are also asking the broader question of whether we represent [her] on other matters, I cannot answer that.'”
• “The company later sued the firm on theories of fraudulent misrepresentation (falsely claiming there was no adversity) and fraudulent concealment (not disclosing whether they represented her at all).”
• “The 7th Cir. Affirmed dismissal of the fraudulent concealment allegation, because there was no duty to disclose the identity of one client to another absent a conflict. The Court also affirmed summary judgment against the fraudulent misrepresentation allegation, because the firm had not been paid any attorneys’ fees after the alleged misrepresentation so there was no harm.”
• Decision: here.

“State Bar Launches Mandatory Client Trust Account Compliance Reviews” —

• “The State Bar of California launched its mandatory Client Trust Account Protection Program (CTAPP) compliance review today. Beginning September 29 through October 31, 2025, the State Bar will randomly select and notify 100 attorneys representing a cross-section of the attorney population to complete a CTAPP compliance review for reporting year 2024. “
• “Prior to launching the mandatory program, the State Bar conducted a voluntary compliance review pilot to test procedures and received direct attorney feedback on the voluntary review. The State Bar issued an open call for volunteers in April 2024. Over 300 firms applied to participate, and 21 firms were selected to represent various practice sectors, firm sizes, and trust account recordkeeping methods. Voluntary compliance reviews began in February 2025 and were completed in August 2025. Eighteen firms completed the process. “
• “‘The voluntary pilot program gave us valuable insights that shaped the compliance review process, making it more effective for both attorneys and the State Bar,’ said Steven Moawad, Special Counsel in the Division of Regulation, which is in charge of CTAPP. ‘By launching the mandatory reviews, we’re taking an important step toward strengthening client trust account practices statewide and deterring public harm before it occurs.'”
• “For more information, visit CTAPP Compliance.”

“Navigating Privilege Risks in the Age of AI: Practical Guidance for Legal Teams” —

• “As tools using generative artificial intelligence (AI) become more integrated into legal workflows, they introduce new and complex risks to attorney-client privilege, confidentiality, and discoverability. Data retention practices, unclear usage protocols and even routine interactions with AI tools can inadvertently expose confidential communications and compromise critical legal protections.”
  “AI Data Retention and Disclosure Risks: Generative AI platforms often retain user inputs and outputs for training purposes, and if privileged or confidential client information is entered into public or nonsecure AI tools, it may be stored and become discoverable in later litigation. AI platforms that don’t have clear data-handling policies or maintain weak security practices increase the risk.”
  “Mitigation Strategies: Use private, non-training AI tools, which typically do not employ user interactions to train their algorithms or store content beyond the immediate session, thus greatly reducing the risk that privileged information might be accessed… Avoid inputting privileged information into AI platforms. Rigorously evaluate AI tools to ensure they do not retain or share sensitive data. “
• “Legal teams should carefully assess when and how AI-powered tools are used in situations involving attorney-client privilege. To maintain privilege, four elements must be present: (1) a communication (2) made in confidence (3) between privileged persons (i.e., attorney or client) (4) for the purpose of obtaining or providing legal advice. One of the most common ways that privilege can be lost is if the confidential communication is voluntarily disclosed to a third party outside the attorney-client relationship.”
• “There are also many ways that attorneys and employees using AI can inadvertently waive attorney-client privilege. For example, companies may upload confidential documents to public-facing chatbots to query the documents and identify key information or use AI-powered notetakers to summarize otherwise privileged meetings, potentially exposing sensitive content to third-party platforms.”
• “A cautionary example is the Otter.ai litigation in the Northern District of California. This summer, Otter.ai became the subject of a class action complaint alleging that the company violated federal and state privacy laws by using features that automatically joined virtual meetings on platforms like Zoom and Teams to record and transcribe conversations without the participants’ knowledge or consent. It further alleges that Otter.ai used these recordings to train its AI machine learning models.”
• “The lawsuit underscores the critical need for organizations to fully understand the functionalities of AI-powered tools before deploying them in sensitive contexts. Companies that use automatic notetakers may inadvertently jeopardize attorney-client privilege by allowing privileged conversations to be transcribed and potentially used to further train AI models.”
• “Courts may view the use of such tools as a voluntary disclosure to a third party, waiving privilege. As the Restatement (Third) of Law Governing Lawyers makes clear (§79 cmt. g (2000)): ‘The disclosing person need not be aware that the communication was privileged, nor specifically intend to waive the privilege.'”
• “Another area that lawyers should consider is the discoverability of AI prompts, responses and generated content. Courts may not grant privilege to AI-generated content, particularly if the platform is accessible to the public. User prompts that produce such responses are generally considered nonprivileged since the initial communication does not involve an attorney.”
• “However, lawyers often maintain records of the prompts they use with AI, which may involve work product protection concerns. Courts typically protect work product that reflects a lawyer’s choices about intrinsically unprotected items, such as witnesses selected for interviews or documents chosen for client preparation. For example, a lawyer’s curated set of cases may be exempt from discovery by opposing parties, and stored AI prompts and responses may be treated as legal work product.”
• “When integrating AI tools into an organization’s workflows, many legal departments lack formal policies and protocols governing AI use in privileged contexts. This creates inconsistency in practice and heightens the risk of inadvertent waivers of attorney-client privilege or work product protections. To reduce this risk, legal teams should develop tailored guidance that reflects the organization’s risk tolerance, regulatory obligations and the specific AI tools in use.”
• “By staying informed and engaged, legal teams can better anticipate changes, adapt policies and safeguard privileged information in an increasingly complex AI environment”

David Kluft asks: “If Clients A & B are related, can I reveal Client A’s Confidential Information To Defend Myself Against Client B’s Malpractice Suit?” —

• “A WA attorney separately represented a Father and Son various legal matters. At some point, the lawyer also borrowed money from the Father and the loan was forgiven. After the Father died, the Father’s estate sued the lawyer for breach of fiduciary duty, presumably with the goal of winding back the loan forgiveness.”
• “The lawyer wanted to prove that the attorney client relationship with the Father ended before the loan, but in order to do that he needed to produce confidential information from the Son’s file, over the objection of the Son, who along with other relatives was supporting the estate’s case.”
• “The lawyer claimed disclosing the Son’s files qualified for the self-defense exception in Rule 1.6(b)(5), which allows a lawyer to disclose confidential information ‘to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client… or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.'”
• “The WA Ct. of Appeals disagreed, holding that disclosure of the Son’s confidential information was not covered by the exception because the relevant “client” for purposes of the exception was the estate, not the Son, and there technically was no controversy with the Son.”
• Decision: here.

“Using Military Lawyers as Immigration Judges is Ill-Advised and Potentially Illegal” —

• “It violates individual rights and is an inappropriate use of the military. The Trump administration’s reported authorization of 600 military lawyers to act as temporary immigration judges would deprive immigrants of a fair hearing and further erode the line between the military and civilian government.”
• “This is true regardless of the professionalism of the military lawyers. Immigration judges are specially trained administrative judges in the Department of Justice who oversee deportation hearings. In late August, the DOJ issued a rule allowing ‘any attorney’ to be selected as a temporary immigration judge, eliminating the previous requirement that temporary judges have years of adjudicatory, litigation, or immigration experience. Multiple news reports on the Trump administration’s authorization of the use of military lawyers followed in early September.”
• “In addition, ethical rules are fundamental to the rule of law, but the legal and ethical obligations of military lawyers and immigration judges are in tension. By regulation and guidelines, immigration judges are obligated to be impartial. Military lawyers would be bound by those same rules while serving as immigration judges, but even when sent to the DOJ, JAGs remain bound to follow the Uniform Code of Military Justice which requires JAGs to obey a lawful order. Failing to do so risks career consequences or even court martial. That obligation raises questions about whether JAGs would be placed in a position where it would be impossible to be truly impartial.”
• “Moreover, under military ethics rules, JAGs can’t act in a way that is prejudicial to the administration of justice, nor can they represent clients with a conflict of interest. If a military attorney’s usual job is to represent the military as a prosecutor or adviser, simultaneously working for a temporary period as a judge — who does not represent the government — potentially puts the officer in a precarious ethical bind.”
• “A JAG’s legal and ethical obligations to follow orders make it challenging to provide a truly fair hearing to the immigrants in their courtroom, a conundrum with constitutional implications.”

“Lawyers reject ‘high risk’ rating for money laundering” —

• “Classifying legal services providers as ‘high risk’ for money laundering is wrong, anti-money laundering specialists told the Law Society’s economic crime conference last week – amid concern over HM Treasury proposals to bolster the AML regime.”
• “Legal services providers were assessed as high risk for money laundering in the 2017, 2020 and 2025 national risk assessments published by the Home Office and HM Treasury. The latest assessment states that law firms are attractive to criminals ‘due to perceptions of the sector’s integrity’.”
• “However, at this week’s conference, Marcus Thompson, a partner at Kirkland & Ellis International who assists corporate clients on anti-money laundering, said he disagreed with the rating. ‘The whole point of becoming a lawyer is the rest of society rightly regards lawyers as people of integrity… who act at a standard above most people in society,’ Thompson said.”
• “Thompson acknowledged that some sectors of the legal economy are more vulnerable than others, but ‘that does not justify the National Risk Assessment of lawyers being at highest risk of money laundering. I think that’s too simplistic’.”
• “Amy Bell, chair of the Society’s economic crime taskforce, said law enforcement agencies have been asked to share examples of where they believe solicitors could have prevented criminals from using their services. ‘Until we have seen that data, it is difficult to say, ‘Watch out for this’,’ Bell said.”
• “Meanwhile, the Society is expected to push back on Treasury proposals that would require banks to take ‘reasonable measures’ to understand the purpose of the pooled client account, gather sufficient information about each client’s business and assess the risk associated with the account.”
• “Simmons & Simmons partner Amasis Saba, a member of the Society’s taskforce, said the onus will fall on banks to be comfortable about who the beneficial owners are, which could include counterparties. ‘This is an area the Law Society will be pushing back on… Your teams are going to get battered by requests. If you have multiple banks, [that means] multiple requests,’ Saba said.”

“Federal Court Addresses Standing to Bring Disqualification Motion under Former Client Conflict Rule” —

• “The federal district court in Seattle recently highlighted a key procedural requirement for most disqualification motions based on asserted former client conflicts: The party bringing the motion must show that they were, in fact, a former client of the lawyer or law firm targeted. “
• “Thompson v. Seattle Public Schools, 2025 WL 2654650 (W.D. Wash. Aug. 8, 2025) (unpublished), involved employment discrimination claims against the defendant school district. The lead lawyer for the school district had earlier investigated employment claims by the plaintiff against another local school district. The plaintiff argued that the lawyer’s earlier investigation constituted a former client conflict under RPC 1.9 that warranted disqualification.”
• “The court noted that regardless of whether the two matters shared any common facts, the plaintiff lacked standing to bring a disqualification motion against the lawyer because the plaintiff had never been a client of the lawyer. The court reasoned that RPC 1.9 on its face is predicated on the fact that the lawyer or law firm involved had formerly represented the client. Disqualification motions for conflicts, in turn, are ordinarily reserved solely for current or former clients of the law firm involved—usually framed under the procedural requirement of ‘standing.’ Lacking that here, the court denied the motion. The court also later denied reconsideration at 2025 WL 2653675 (W.D. Wash. Sept. 16, 2025) (unpublished). “
• “Although Thompson is an ‘unpublished’ decision, the federal court in Seattle discussed standing in the disqualification context for conflicts generally in the relatively recent reported decision of United States Fire Insurance Company v. Icicle Seafoods, Inc., 523 F. Supp.3d 1262 (W.D. Wash. 2021).”

“Rate Sensitivity, Conflicts Continue to Loom Over Big Law IP Practices” —

• “The exit of 21 intellectual property litigators from Ropes & Gray for Sheppard, Mullin, Richter & Hampton last week is one of the latest group moves in the practice area this year, as some law firms decide to step back from the practice while others are taking advantage of recruiting top talent in a shifting Big Law environment. Among a number of IP litigator moves in the past year, Weil, Gotshal & Manges picked up at least six IP litigators from Latham & Watkins, and two IP Willkie Farr & Gallagher IP litigators moved to Gemini Law, a boutique based in New York.”
• “Some observers point to increasing client demand in some corners of IP law for law firms that already have built-out practices and intersecting practices for blue-chip clients. Still others point to potential conflicts or higher billing rate pressure in some IP litigation, compared with other Big Law practices, leading many IP lawyers to move to smaller or slightly less profitable law firms. IP litigators have said that charging elevated premiums to IP clients has forced some attorneys to abandon their firms for ones that allow for lower rates.'”
• “Besides rate pressure, conflicts may also prompt firms to step back more from IP litigation, said law firm consultant Lisa Smith, a principal with Fairfax Associates.'”
• “‘Firms are taking a look at IP from a couple of perspectives. Certainly, one is a rate perspective. Some of the prosecution work, in particular, is not always a fit for an Am Law 50 firm. The litigation is still a desirable practice, but conflicts get in the way. That’s where we see it just doesn’t fit,’ she said.'”
  Conflicts can arise easily, she said, because IP litigation often involves going after competitors in a particular industry sector, so it can be problematic for a firm that represents multiple companies in a sector.'”
• “William Munck, global managing partner of Dallas-founded technology firm Munck Wilson Mandala, said ‘nobody is backing off IP litigation,’ and his firm is seeing as much as it always has.’ However, he acknowledged seeing practice groups move from a ‘mega-firm’ to a smaller firm, because they can compete with lower leverage and the efficiency of using AI. ‘With AI tools, firms like ours can now compete with any project that’s out there,’ he said.'”

Another interesting find from David Kluft: “Can the whole DOJ be disqualified if different government agencies have adverse interests?” —

• “A VA relator filed a qui tam action alleging illegal activities by five defense contractors and the Department of Defense in how contracts were awarded.”
• “He argued that the Attorney General should be disqualified from intervening on behalf of the United States, because it had obligations to both the U.S. Treasury (which was harmed by the illegal activities) and to the DOD (which he alleged was in on the illegal activities).”
• “The Court rejected the argument because the United States was a single client for conflict analysis. Also, the relator failed to identify a particular government attorney with this conflict, and in any case DOJ attorney conflicts are not imputed to the entire DOJ.”
• Decision: here.

New York State Bar “Opinion 1284 (09/16/2025) Multi-Jurisdictional Practice; Referral Fees; Division of Fees” —

• Topic: Multi-Jurisdictional Practice; Referral Fees; Division of Fees
• Digest: Lawyers admitted in New York and a foreign jurisdiction who associate with a lawyer admitted only in the foreign jurisdiction may divide a fee with that lawyer because Rule 1.5(g) explicitly permits lawyers associated in the same law firm to share fees. But the New York-licensed attorneys in the firm must exercise supervision pursuant to Rule 5.1 over the non-New York partner to the extent such partner’s conduct implicates the New York Rules of Professional Conduct.

“A New Wrinkle in AI Hallucination Cases: Lawyers Dinged for Failing to Detect Opponent’s Fake Citations” —

• “A new decision from the California Court of Appeals adds an intriguing dimension to the growing body of AI hallucination sanctions cases, raising the question of a lawyer’s duty to detect fabricated, AI-generated citations — not in the lawyer’s own filings, but in an opponent’s.”
• “While the court did impose a $10,000 sanction on the attorney who filed two appellate briefs containing fake citations, it also declined to award attorneys’ fees or costs to the opposing counsel, because of counsel’s failure to report the fake citations to the court or even to detect them. That makes this what may be the first judicial decision to touch on on whether lawyers have a duty to detect and report their opponents’ AI-generated fake citations.”
• “The attorney, Amir Mostafavi, used ChatGPT and other AI tools to ‘enhance’ his appellate briefs, then failed to verify the citations before filing. The court found that 21 of 23 case quotations in his opening brief were fabricated, along with many more in the reply brief. Some cases did not discuss the topics for which they were cited, and others did not exist at all.”
• “‘Nearly all of the legal quotations in plaintiff’s opening brief, and many of the quotations in plaintiff’s reply brief, are fabricated,’ the court said.”
• “But what makes Noland unique is the court’s explicit decision not to award attorneys’ fees to the opposing counsel, despite finding the appeal frivolous and despite opposing counsel’s request for such an award. The court explained:”
• ” ‘We decline to order sanctions payable to opposing counsel. While we have no doubt that such sanctions would be appropriate in some cases, in the present case respondents did not alert the court to the fabricated citations and appear to have become aware of the issue only when the court issued its order to show cause.'”
• “Although the court did not elaborate beyond that statement, its reasoning raises the question: What is the role of opposing counsel in policing AI hallucinations? Put another way: What is a lawyer’s responsibility to detect and report an opponent’s use of hallucinated citations?”
• “The court appears to suggest that had opposing counsel spotted the fake citations and alerted the court, they might have been entitled to be awarded sanctions. Conversely, their failure to detect the fabrications made them undeserving of compensation.”
• “But in the AI era, could it be that lawyers have a heightened responsibility to check their opponents’ citations? Does the responsibility now extend not just to the lawyer’s clients, but to the courts?”
• “It is fair to say, I think, that the Noland court’s denial of attorney fees to defendants who failed to spot obvious fabrications hints at an evolving standard of professional competence.”
• “In denying opposing counsel’s request for attorneys’ fees, the Noland court appeared to fault counsel on two counts: their failure to alert the court to the fabricated citations, and their failure to even notice them in the first place.”
• “The Noland court’s decision seems to suggest that, at minimum, lawyers who spot AI hallucinations and alert the court may be rewarded (or at least may be eligible to be reward), while those who miss them may not be entitled to fee-shifting even when the opposing brief is ultimately sanctioned.”
• “While Noland appears to be the first case to explicitly address opposing counsel’s role in detecting AI hallucinations, it likely won’t be the last. As AI-generated fake citations become more sophisticated and potentially harder to detect, courts will need to develop clearer standards about what level of diligence opposing counsel should exercise.”
• Decision: here.