Tag Archives: 8.4

Lifting the Veil on Private Sanctions in Alabama

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Until a couple years ago, I barely realized that disciplinary agencies imposed private sanctions.  But after conducting an empirical study on them, I learned that they may be used in 37 states.  Furthermore, they comprise the majority of the sanctions imposed in over half of those states.  I published the results of the study in my article “Private Sanctions, Public Harm?,” published in the BYU Law Review.

So what type of misconduct leads to private sanctions?  Sometimes it can be a single instance of an attorney missing a deadline.  But sometimes it can be much more.

Here is an example from Alabama.  The information about the misconduct is thin, but egregious.  According to the sanction, the attorney “text-messaged [the client] inappropriately, requested inappropriate in-home personal visits with her, and made inappropriate comments and sexual advances.”’  In connection with these actions, the attorney was found to have attempted to violate an Alabama-specific conflict-of-interest-rule, which proscribes attempting to enter into an exploitive sexual relationship with a client, along with a violation of the jurisdiction’s fitness-to-practice provision.

But that’s not all.  He also “led the [client] to believe he possessed the ability to improperly influence a government agency or official.”  This misconduct constituted a violation of 8.4(e) (stating or implying an ability to influence such an official), along with 8.4(c) (the fraud provision).

Why did the attorney receive a private reprimand instead of a public sanction?  There’s no indication based on the information provided by the disciplinary agency.  The more important question is why this type of misconduct toward clients should ever be given a private sanction instead of a public one.  This kind of debate should be occurring, but thus far private sanctions have remained hidden from view.

Of course, this lawyer might go on to have an unblemished career.  Or this lawyer might be sanctioned again.  But we will likely never know.

Although I cannot provide a direct link to the sanction, you can search Alabama Disciplinary History here:  https://www.alabar.org/office-of-general-counsel/disciplinary-history/ (search for “1.8(m)” and select “Private Reprimand” in the dropdown menu.

One of the first ChatGPT sanctions

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Over the last year, nearly everyone has heard about the power of using generative AI.  My former colleagues at the University of Minnesota Law School have a popular article about its performance on law school exams.  But for Colorado lawyer Zachariah Crabill, the use of ChatGPT led to a one-year suspension (90 days to be served and the remainder stayed provided he compiles with the terms of a two-year probationary period).

How did it happen?  The lawyer was asked to draft a motion in an area that he was unfamiliar, so he asked ChatGPT to draft it for him.  He filed the motion without checking it, and it contained “incorrect or fictitious” cases—or in common parlance, it hallucinated.  But even when he realized the mistake, he “falsely attributed the mistakes to a legal intern.”  He finally came clean about a week later, but by then it was too late.

The lawyer stipulated that he had violated four ethical rules: 1.1 (competence), 1.3 (diligence), 3.3(a)(1) (candor to the tribunal—violated by making false statements of law to the court), and 8.4(c) (fraud provision).  He was also fired by his law firm, as reported by the Washington Post.

 It is not surprising to see this type of disciplinary case, and I hypothesize that the number will explode in the next 2-3 years.  I do think it is interesting that the disciplinary agency cited a violation of Rule 1.1.  The Model Rules added Comment 8 to Rule 1.1 about a decade ago that addresses the issue of technological competence.  It states in relevant part that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  As of now, disciplinary agencies are focusing on lawyers who don’t recognize the risks.  But one wonders if or when we might sanction attorneys who avoid learning about and using time-saving technology.

Attorney regulators are feverishly working on guidance related to generative AI.  Florida has one of the first proposed ethics opinions on the subject, and surely more will follow.

Link to Sanction here:  https://coloradosupremecourt.com/PDJ/Decisions/Crabill,%20Stipulation%20to%20Discipline,%2023PDJ067,%2011-22-23.pdf.

Massachusetts Lawyer Coaches Witness

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With the increase in electronic hearings that were spurred on by the pandemic, it was only a matter of time before we began seeing disciplinary actions based on a lawyer “coaching” a witness while testifying.  One the recent installments is in Massachusetts, where a lawyer stipulated to a public reprimand for “repeatedly coach[ing] his witness on answering questions” by “surreptitiously provid[ing] his client with answers.”  In this instance, the lawyer and client were participating in a remote deposition and both were wearing masks.  In total, there were about 50 instances of the lawyer coaching the witness—which opposing counsel was able to detect by reviewing a videotape of the deposition.

Interestingly, the Massachusetts Board of Bar Overseers noted that there was no prior sanction in the state “based solely on a lawyer coaching a witness during a deposition.”  But the opinion did note that there were two cases from other states (Florida and Arizona), and perhaps unsurprisingly both are recent cases (2021) involving electronic communications.

Ultimately, the stipulation included violations of Rule 3.4(c) (knowingly disobeying an obligation under the tribunal’s rules), 8.4(d) (administration-of-justice provision) and 8.4(h) (fitness-to-practice provision, one of my personal favorites!).  But it is interesting that the Board did not mention or find a violation of Rule 3.4(b).  That rule proscribes “counsel[ing] or assist a witness to testify falsely.”  We often talk about the subsection in the context of witness coaching, but my guess is that it’s almost impossible to prove that the attorney was coaching the witness to testify “falsely,” but rather just telling the witness how to respond.

For those who are interested, the ABA recently issued a formal ethics opinion on witness preparation.

Link to Sanction here:  https://bbopublic.massbbo.org/web/f/PR-2023-12.pdf.