Beware of Chat GPT

This is a news story about a lawyer who used Chat GPT for legal research and found out that the research was invented, not real legal research. He apologized to the Court. The court has not decided what to do about the invented research. Obviously, the machines will get better at legal research in coming years, but we have to be smart enough to check their work and second guess their conclusions. In a complicated fact setting there is no possibility that Chat GPT will be a match for solid legal work, at least for ten years. Chat GPT may give you an idea or two, but make sure to research the cases yourself and think about the facts before you push submit on a brief.

Ed Clinton, Jr.

Colorado Censures Jenna Ellis

Colorado has censured Jenna Ellis, a lawyer for President Trump. People v. Ellis, 23 PDJ004. The disciplinary case was resolved by stipulation. According to the Court, “while serving as a senior legal advisor to then-President of the United States and as counsel for his reelection campaign, Jenna Lynn Ellis (“Respondent”) repeatedly made misrepresentations on national television and on Twitter, undermining the American public’s confidence in the 2020 presidential election.” The Court found that her conduct violated Rule 8.4(c) which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Of note, Ellis did not act as counsel in any of the lawsuits Trump filed contesting the outcome of the election. Colorado has gone a step further than other courts and has condemned false public statements to the media.

“Respondent agrees she made the following ten misrepresentations: 

 On November 13, 2020, Respondent claimed that “Hillary Clinton still has not conceded the 2016 election.” 

 On November 20, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated: “We have affidavits from witnesses, we have voter intimidation, we have the ballots that were manipulated, we have all kinds of statistics that show that this was a coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret . . .” 

 On November 20, 2020, Respondent appeared on Spicer & Co. and stated, “with all those states [Nevada, Michigan, Pennsylvania, Wisconsin, Georgia] combined we know that the election was stolen from President Trump and we can prove that.” 

 On November 21, 2020, Respondent stated on Twitter under her handle @JennaEllisEsq., “ . . . SECOND, we will present testimonial and other evidence IN COURT to show how this election was STOLEN!” 

 On November 23, 2020, Respondent appeared on The Ari Melber Show on MSNBC and stated, “The election was stolen and Trump won by a landslide.” 

 On November 30, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated, “President Trump is right that there was widespread fraud in this election, we have at least six states that were corrupted, if not more, through their voting systems. . . We know that President Trump won in a landslide.” She also stated, “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.” 

 On December 3, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated, “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.” 

 On December 5, 2020, Respondent appeared on Justice with Judge Jeanine on Fox News and stated, “We have over 500,000 votes [in Arizona] that were cast illegally . . .” 

 On December 15, 2020, Respondent appeared on Greg Kelly Reports on Newsmax and stated, “The proper and true victor, which is Donald Trump . . .” 

 On December 22, 2020, Respondent stated on Twitter, through her handle @JennaEllisEsq, “I spent an hour with @DanCaplis for an in-depth discussion about President @realDonaldTrump’s fight for election integrity, the overwhelming evidence proving this was stolen, and why fact-finding and truth—not politics—matters!” 

Respondent made these misrepresentations on Twitter and on various television programs, including Fox Business, MSNBC, Fox News, and Newsmax.” Opinion page 2.

Comment: The opinions disciplining Trump’s lawyers, such as Rudy Giuliani and Jenna Ellis, along with the sanctions awards by various district courts, are one of the more important legal developments in the last few years. Lawyers who previously bore no risk of discipline must now tell the truth in public statements. This is, without question, an expansion of the reach of lawyer disciplinary regulators.

Ed Clinton, Jr.

Courts Are Beginning To Hold Election Deniers To Account

The legal disciplinary process is beginning to catch up with lawyers who make frivolous allegations of election fraud.

The case cited below is a published opinion in the Eastern District of Michigan, King v. Whitmer, 556 F. Supp. 3d 680.

Minnesota Disbars Attorney For Bankruptcy Fraud

A lawyer allegedly spent years assisting a client in hiding assets from a bankruptcy trustee and creditors. The Minnesota Supreme Court entered an order disbarring the attorney on December 30, 2022. No. A-19-0864. There was also a federal prosecution.

California Has Proposed An Amendment To Rule 8.3

The California Bar has taken some public criticism for the Girardi and Avenatti scandals. California does not have an In re Himmel, 125 IL 2d 531, 533 (1988) type reporting obligation that requires an attorney to report certain types of criminal or fraudulent conduct by another attorney. This proposed Rule 8.3 would go a long way to correcting this problem. In my opinion, California should adopt this reform. The obligation of reporting wrongful conduct is a serious one but the obligation is limited to circumstances where the lawyer is aware that another lawyer is engaged in serious wrongdoing.

Proposed Rule 8.3: Reporting Professional Misconduct

(a) A lawyer shall inform the State Bar when the lawyer has personal knowledge that another lawyer has committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects as prohibited by rule 8.4(b).

(b) For purposes of this rule, “personal knowledge” is distinct from the definition of “[k]nowingly”, “known,” or “knows” under rule 1.0.1(f) and is limited to information based on
firsthand observation gained through the lawyer’s own senses.

(c) This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information
protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; the lawyer-client privilege; or by other rules or laws, including information that is
confidential under Business and Professions Code section 6234.15


[1] This rule does not abrogate a lawyer’s obligations to report the lawyer’s own conduct as required by these rules or the State Bar Act. (See, e.g., rule 8.4.1(d) and (e); Bus. & Prof. Code, §
6068, subd. (o).)

[2] The duty to report under paragraph (a) is not intended to discourage lawyers from seeking counsel. This rule does not apply to a lawyer who is consulted about or retained to represent a
lawyer whose conduct is in question, or to a lawyer consulted in a professional capacity by another lawyer on whether the inquiring lawyer has a duty to report a third-party lawyer’s
professional misconduct.

[3] If a lawyer reasonably believes* that it would be contrary to the interests of a client of the lawyer or a client of the lawyer’s firm promptly to report under paragraph (a), the lawyer
should report as soon as the lawyer reasonably believes* the reporting will no longer cause material prejudice or damage to the client. The lawyer should also consider the applicability of other rules such as rules 1.4 (the duty to communicate) and 1.7(b) (material limitation conflict).

[4] Information about a lawyer’s misconduct or fitness may be received by a lawyer while participating in a substance use or mental health program, including but not limited to the
Attorney Diversion and Assistance Program. (See Bus. & Prof. Code, § 6234.) In these circumstances, providing for an exception to the reporting requirement of paragraph (a) of this
rule encourages lawyers to seek treatment through such programs. Conversely, without such an exception, lawyers may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.

[5] In addition to reporting professional misconduct as required by paragraph (a), a report may also be made to another appropriate agency. A lawyer must not threaten to present criminal,
administrative or disciplinary charges to obtain an advantage in a civil dispute in violation of rule 3.10.

[6] A failure to report may also implicate rule 8.4(a) with respect to the prohibitions against assisting, soliciting, or inducing another lawyer’s ethical violation; see also rule 5.6(b) and
Business and Professions Code section 6090.5 with respect to the prohibition on agreements that preclude the reporting of a violation of the rules.

[7] Communications to the State Bar relating to lawyer misconduct are “privileged and no lawsuit predicated thereon may be instituted against any person.” See Business and Professions
Code section 6094; but see Business and Professions Code section 6043.5 with respect to criminal penalties for false and malicious reports or complaints.

If you have a question about this post, do not hesitate to contact us.

Ed Clinton, Jr.

Avenatti Sentenced to 14 Years In Prison

Avenatti will spend significantly more time in prison that Elizabeth Holmes. The court may have imposed this sentence because he was an attorney and because he, like Tom Girardi, engaged in a pattern of funding his lifestyle with client settlement funds.

This is another instance where the State Bar of California did not do enough to prevent harm. There were numerous complaints about Avenatti failing to hand over client funds, but the California State Bar did not act quickly enough. It took federal indictments to effectively end Avenatti’s legal career.