New York state’s Advisory Committee on Judicial Ethics: “Judicial Ethics Opinion 23-96” —

• “Digest: A judge must insulate their law clerk from all matters in which the law clerk had any personal involvement as an attorney, but need not disqualify, provided the judge believes the judge can be fair and impartial.”
• “Both sides have asked the judge to recuse on the basis of an alleged conflict of interest or appearance of impropriety arising from the judge’s recent hiring of a former assistant district attorney as a law clerk.”
• “During their former employment with the DA’s office, the law clerk conducted legal research on this specific case, which was incorporated in the People’s opposition to the defendant’s currently pending motion to vacate. The inquiring judge is confident that they can be fair and impartial in the matter, and is willing and able to insulate the law clerk from any involvement in the case (including the motion to vacate, the hearing on the issue, and the written decision). The judge asks if recusal is nonetheless required.”
• “A judge is not automatically disqualified from presiding in a case merely because the judge’s law clerk was personally involved in it during the law clerk’s prior employment (see Opinions 15-233; 15-43; 08-71). Rather, if, as here, the judge believes they can be fair and impartial, the judge must insulate the law clerk from all matters in which the law clerk was personally involved and disclose the insulation and the reason for it (see id.).”
• “No lapse of time affects the requirement that the law clerk be insulated from all matters in which they were personally involved to any extent, and the insulation may not be waived or remitted (see Opinions 15-233; 15-43), even where the law clerk’s involvement in the matter consisted of only a single court appearance (see Opinion 21-42).”
• “Accordingly, on the facts presented, we conclude the judge must fully and permanently insulate their law clerk from this case and disclose the insulation, but may thereafter preside as long as the judge can be fair and impartial.”

“Zalkin Law Firm’s $285K Data Breach Settlement Rejected by Court” —

• “The Zalkin Law Firm PC’s proposed $285,000 settlement of a lawsuit over a data breach that exposed the sensitive personal information of the firm’s clients who were victims of sexual abuse and harassment was rejected by a federal court.”
• “Plaintiff Ariana Deats’ motion for preliminary approval of the deal provided inadequate support for the settlement amount, was vague in weighing the strengths and weaknesses of the plaintiff’s case, and didn’t properly assess the plaintiff’s damages, Judge M. James Lorenz of the US District Court for the Southern District of California said Monday.”
• From the decision:
  • “On April 4, 2023,a known cybercriminal group specializing in ransomware infiltrated Defendant’s computer network and accessed client information including driver’s license and social security numbers, medical information, and highly sensitive details from client case files concerning sexual abuse and harassment.”
  • “Although Defendant learned of the data breachon April 6, 2023, it did not start notifying its clients until September 6, 2023. Defendant sent a Notice of Data Breach to 523 clients.”
  • “Assuming for the sake of argument that all requested amounts are approvedin fulland all 523 individuals who were sent Notice of Data Breach submit valid claims,each would receive approximately $309.”
  • “Based on this standard, the Court has a duty to look for any ‘subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain class members to infect the negotiations.’ Bluetooth, 654 F.3d at 947. One such subtle sign is ‘when the parties negotiate a ‘clear sailing’ arrangement[.]'”
  • “The Settlemen there includes a ‘clear sailing’ arrangement (Mot. at 4) whereby ‘the defendant agrees not to oppose a petition for a fee award up to a specified maximum value.’ Bluetooth, 654 F.3d at 940 n.6. This ‘carries the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class.’ Id. at 947.”
  • “Plaintiff provides only a cursory opinion of Class Members’ potential recovery after trial and is vague in weighing of the strengths and weaknesses of Plaintiff’s case. (See Mot. at 8-10.) Plaintiff’s analysis is based almost entirely on prior settlements of data breach cases; however, the cases cited appear to involve only personally identifiable data. They are not analogous because, according to Plaintiff herself, her case involves ‘extraordinarily sensitive information.’ (Mot. at 10.)”

“Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence” —

• “RPC Rule 1.6 states, in part, that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” This duty of confidentiality also extends to what client information a lawyer may share when using certain generative AI tools. Because AI models depend on data to deliver salient results, privacy protection must become an integral part of their design.127”
• “Confidentiality concerns arise when entering information into AI engines, such as chatbots, and when such entries are then added to the training set for the AI. Such uses may violate protective orders for prior and future cases involving different parties.”
• “Such issues are especially important when some or all data that the AI ‘learns’ is used for training the AI for work on future cases. Lawyers should cautiously use these tools, being mindful of a client’s privacy”
• “In fact, the California bar association128 recommends that lawyers inform their clients if generative AI tools will be used as part of their representation. The Florida bar association129 takes its recommendation a step further, suggesting that lawyers obtain informed consent before utilizing such tools. Whether an attorney informs the client or obtains formal consent, the ethical obligation to protect client data remains unchanged from the introduction of generative AI tools.”
• “Pursuant to the Model Rules of Professional Conduct and New York RPC, lawyers must
  take reasonable efforts to prevent inadvertent and unauthorized disclosure of or access to client information. When utilizing generative AI tools such as ChatGPT, attorneys need to be knowledgeable about the technology they are using and/or ask for assistance from those lawyers or trusted technology experts who do understand its use and limitations, including IT personnel. If none of these options is possible, then the attorney should not utilize such technologies until they are competent to do so per the duty of competency.”
• “Open AI/ChatGPT may raise both ethical violations and cybersecurity issues. For example, ‘if there is a cyber intrusion [into OpenAI or ChatGPT], not only will that data potentially be lost to threat actors, but they could conceivably also obtain the firm’s searches… [gaining] access into the mind of a lawyer and the arguments they might be raising.’140”
• “Data preservation and litigation hold obligations may present similar challenges for
  attorneys and the court. If the data that is inputted into the AI application is temporary/ephemeral, but also relevant and responsive to the litigation, parties have the duty to preserve this electronically stored information. Yet, how do you preserve what may no longer exist?”
• APPENDIX C: SAMPLE ENGAGEMENT LETTER PROVISION
  • “Use of Generative AI: While representing you, we may use generative AI tools and technology to assist in legal research, document drafting and other legal tasks. This technology enables us to provide more efficient and cost-effective legal services. However, it is important to note that while generative AI can enhance our work, it is not a substitute for the expertise and judgment of our attorneys. We will exercise professional judgment in using AI-generated content and ensure its accuracy and appropriateness in your specific case.”