Former District Attorney Suspended on Consent for Failure to Prosecute Cases
By
Order dated July 16, 2024, the Supreme Court of Pennsylvania suspended the license of Blair County attorney Lesley Rae Childers-Potts for two years, based on a Joint Petition for Discipline on Consent entered into by Disciplinary Counsel and Childers-Potts.
The Joint Petition arose from events occurring while Childers-Potts was serving as the elected District Attorney of Bedford County, a position from which she
resigned on February 10, 2023. The Joint Petition stipulates that, in her role as District Attorney, she failed to diligently prosecute cases and take other actions necessary to discharge her duties in four cases, three of which resulted in court orders dismissing proceedings due to the failure of the District Attorney’s office to diligently proceed with the cases or file required documents. One of the decisions stated, “We are compelled to comment upon what we now find to be a course of conduct of egregious inaction by the District Attorney. In a span of only a month, this is the second case in which the failure of the District Attorney to perform a basic task has violated a person’s right to due process, and necessitates the complete dismissal of a petition to revoke probation.”
The parties agreed in the Joint Petition that this course of conduct violated five Rules of Professional Conduct dealing with competence, diligence, meritorious claims, expediting litigation, and conduct prejudicial to the administration of justice.
The Joint Petition set forth two aggravating factors: that the conduct was committed in her role as a public official and that it generated negative local publicity. Four mitigating factors were noted: that she accepted responsibility, cooperated with the Office of Disciplinary Counsel, had no history of discipline, and participated in a number of community activities. She was the only attorney in the Bedford County District Attorney’s office at times during the course of conduct.
After reviewing relevant case law, the parties agreed that a suspension for two years was the appropriate measure of discipline which the Disciplinary Board recommended and the Supreme Court imposed.
Indiana Lawyer Receives Stayed Suspension for Review Response, “Offensive Personality”
An Indiana lawyer
received a stayed suspension on consent after his intemperate responses to a negative review on Google.
Stanley F. Wruble, III took it personally when a dissatisfied client left a one-star review on Google, complaining that he had difficulty communicating with Wruble. Wruble responded with “derogatory and profane language”, demanding that the client delete the review. When the client refused to do so, Wruble responded with a public post that included damaging information about the client relating to the subject of the representation. He also included such information in a defamation lawsuit filed against the client which was later dismissed on his motion.
In a stipulation, Wruble admitted that his conduct violated Indiana’s
Rules of Professional Conduct Rule 1.9(c) by improperly revealing information relating to the representation. He also admitted to violating Indiana’s
Admission and Discipline Rule 22, providing for the oath that attorneys take upon admission. That oath includes a statement that “I will abstain from offensive personality.”
The Supreme Court of Indiana accepted the stipulation and imposed a suspension of eighteen months, stayed in full under probation. The Court was not unanimous in accepting the reference to Admissions and Discipline Rule 22, though. Justice Geoffrey P. Slaughter filed an opinion, concurring in part and dissenting in part, in which he expressed the view that the violation of RPC 1.9(c) was a sufficient basis for the imposition of discipline but disagreeing that the attorney oath for “offensive personality” was enforceable in discipline. He stated, “My specific concern is with the ever-present threat that lawyers will face charges for whatever the commission deems an ‘offensive personality’ — an inherently subjective assessment that risks a dangerous slippery slope.” He did note that “Wruble’s personality during this episode was indeed offensive.” Three justices joined in a concurring opinion that they would consider whether Justice Slaughter’s view was correct under other fact situations.
The terms of the probation imposed on Wruble included attendance at anger management courses.
ABA Issues Formal Opinion on Use of AI
The American Bar Association Standing Committee on Ethics and Professional Responsibility has
released a Formal Opinion addressing ethical duties of lawyers who employ generative artificial intelligence (GAI) technology in their practice.
Formal Opinion 512, entitled “Generative Artificial Intelligence Tools”, addresses five questions:
- What level of competency should lawyers acquire regarding a GAI tool?
- How can lawyers satisfy their duty of confidentiality when using a GAI tool that requires input of information relating to a representation?
- When must lawyers disclose their use of a GAI tool to clients?
- What level of review of a GAI tool’s process or output is necessary?
- What constitutes a reasonable fee or expense when lawyers use a GAI tool to provide legal services to clients?
As to competence, the Opinion states, “Lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. … [L]awyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others.” It suggests reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and consulting others who are proficient in GAI technology, along with numerous other recommendations.
The use of GAI technology carries risks, the Committee said, including inadvertent errors and misinterpretations due to the software’s lack of human thought process as well as “hallucinations” – completely false information which have led to many cases of lawyer discipline when lawyers cited nonexistent cases and authorities provided them by GAI technology.
Issues of confidentiality examined by the Committee include the risk that client information put into a GAI application may be accessed either by others outside the firm through the application’s information-gathering capabilities or within the firm by individuals who may not recognize resources provided as confidential client information.
The Opinion also addressed the question of whether a client’s consent may be required before confidential client information can be put into a GAI application. Such consent would need to be informed by disclosure to the client of the risks discussed above.
The Committee suggests, at a minimum, that the lawyer should read and understand the Terms of Use, privacy policy, and related contractual terms and policies of any GAI tool into which client information will be entered.
On the subject of disclosure, the opinion states that “lawyers must disclose their GAI practices if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines.” It also notes that clients have a reasonable expectation to know whether the lawyer is exercising independent judgment or relying on the output of a GAI tool or if its output will influence significant decisions in the representation.
Addressing the issue of review of the output of GAI products, the Opinion states, “Lawyers should review for accuracy all GAI outputs. In judicial proceedings, duties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments.”
It goes on to discuss the responsibilities of managing and supervising attorneys in terms of setting policies and supervising subordinate attorneys and nonlawyer personnel. It also stresses the need to define and closely supervise the work of outside contractors. The Opinion sets forth a list of factors to consider and questions to ask.
The Opinion discusses several considerations regarding the
charging of legal fees and expenses. It stresses that, while GAI technology may result in huge savings of time, legal fees must be based on actual time incurred, so any savings achieved by greater efficiency must be passed on to the client by billing only for time actually spent in research and review.
On the question of flat fees, the Opinion suggests that when a GAI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the GAI tool as when not using it.
As to the charging of expenses, the Opinion states that a lawyer or law firm should not add a surcharge in excess of actual cost of services employed. If a particular tool or service is routinely used in the practice, a lawyer or law firm should consider its cost to be overhead and not charge the client for its cost absent a contrary disclosure to the client in advance.
Finally, the Opinion states that a lawyer may not charge a client for time expended learning about how to use a GAI tool or service if the lawyer will regularly use it in representing clients the course of practice.
The Opinion provides much more detailed information and guidance than can be set forth in this brief summary. It appears to be essential reading for lawyers and law firms looking to employ GAI technology in their practices.
Ninety-Seven-Year-Old Judge Fights Suspension Recommendation
A ninety-seven-year-old federal judge
is fighting to return to active case assignments after a three-judge circuit committee
renewed a determination that she was not competent to hear cases.
Judge Pauline Newman
was appointed to the District of Columbia Court of Appeals in 1984. The Judicial Council of the Federal Circuit suspended Newman for a year by an
Order dated September 20, 2023 based on findings that she displayed memory loss, lack of comprehension, confusion, and an inability to perform basic tasks, resulting in her becoming frustrated, agitated, belligerent, and hostile towards court staff. The Council noted that she refused to cooperate with the inquiry, including efforts to determine her current capacity. The order removed her from hearing cases at the panel or
en banc level for one year, subject to renewal if she continued to resist the examination requirements imposed by the Council.
Judge Newman filed a lawsuit challenging the action, but it
was dismissed by a District Court judge on July 9, 2024.
On July 24, 2024, the three-judge Special Committee
recommended that Judge Newman’s suspension be continued for an additional year. The committee found that she had not presented evidence that rebutted the extensive findings of the September 2023 Order and continued to refuse to undergo required neurological exams, to provide medical records, or even to sit for an interview.
Not everyone agrees that the judge is as disabled as the court reports find. Her lawyer, Greg Dolin of the New Civil Liberties Alliance,
pointed to the U.S. Supreme Court’s April opinion in a veterans’ benefits case where the high court, by a seven-to-two margin, adopted the legal rationale set out in a December 2022 Newman dissent. David Lat, a lawyer, founder of Above the Law, and author of the podcast
Original Jurisdiction, stated, “On January 4, I met with Judge Newman and her clerks in chambers, for about four hours. Last Friday, I interviewed Judge Newman on my podcast for another hour. I’m now of the view that she’s completely lucid and sane.”
The full court will review the panel’s recommendation and issue an Order in the next few weeks or months.
