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ARDC Recommends Two-year Suspension For Backdating Letter

The ARDC Hearing Board recently decided the case of Thomas Gordon Maag, 2023 PR 00054. The case began as a claim that the lawyer had failed to diligently represent a client, to comply with requests for information and to surrender client files when requested. After he was contacted by the ARDC, the lawyer allegedly “knowingly fabricated[ed] and backdat[ed] a letter to client which falsely represented that he sent client the client files on December 20, 2022.”

The clients retained the lawyer in 2019 to handle three different matters. The clients provided a retainer but the lawyer never filed suit. The Hearing Board found the the lawyer violated Rules 1.4 (communication) and 1.3 (diligence) because he did not file any lawsuits or advance the client matters to conclusion and failed to communicate with his clients. The Hearing Board also found that the lawyer failed to take measures to return the client files to the Ambroses under Rule 1.16(d).

The more serious charge is that the lawyer engaged in dishonest conduct. The Hearing Board found as follows:

“We find that the Administrator proved by clear and convincing evidence that Respondent engaged in dishonest conduct by knowingly backdating the client letter that the [Clients] found in their mailbox in January 2023, falsely stating in the letter that he had included Client’s entire client files, making the letter appear to have been damaged and delivered by the U.S. Postal Service, and falsely stating to the Administrator that he mailed Client his entire client files. We find that Respondent’s conduct violated Rules 8.4(c) and 8.1(a).” Rule 8.1 prohibits an attorney from making a false statement in a disciplinary matter.

The Hearing Board recommended a suspension of two years and until further order of court. The panel’s opinion contains this paragraph: “Finally, Respondent was dishonest with the Hearing Board. He gave false testimony, including claiming that he sent a demand letter to the hot tub company in early 2020, denying that he received most of the Ambroses’ communications in 2020 to 2022, fabricating the April 28, 2022, conversation with Michael, and asserting that he did not backdate the December 20, 2022, closing letter. He also presented two false exhibits: the fabricated Memo to File, and an email which was admitted and later stricken because Respondent’s version was missing 11 words, despite his insistence that it was a true and correct copy.”

Comments: in the digital age attorney regulators are becoming more capable of detecting fabricated evidence submitted by lawyers to avoid discipline. Obviously, if you make a mistake, you must own up to it and admit it honestly and truthfully.

Former Attorney General of South Dakota Suspended for Six Months

The South Dakota Supreme Court suspended a former attorney general following an accident in which he struck and killed a pedestrian with his motor vehicle.[¶4.] On September 12, 2020, Ravnsborg drove his personal vehicle to attend a Republican political event in Redfield, South Dakota. After the event ended, he began driving back to his residence in Pierre. At approximately 10:30 p.m., after passing through Highmore, Ravnsborg’s vehicle struck and killed Joe Boever, who was walking on the shoulder of the road. The facts:

[¶5.] Ravnsborg slowly brought his vehicle to a stop and called 911. He immediately told the 911 operator, “I’m the Attorney General. And I am . . . I don’t know . . . I hit something.” The 911 operator asked him if he hit “a deer or something” to which he responded, “I have no idea, yeah it could be, I mean it was right in the roadway.” Hyde County Sheriff Mike Volek was dispatched to Ravnsborg’s location.

[¶6.] Ravnsborg and Sheriff Volek briefly scanned the surrounding area but did not locate what Ravnsborg had hit. Shortly thereafter, Sheriff Volek offered Ravnsborg his personal vehicle to drive back to Pierre because Ravnsborg’s vehicle was unable to be driven.

[¶7.] The next day, Ravnsborg returned to Highmore with his chief of staff, Tim Bormann, to return Sheriff Volek’s personal vehicle. On the way, Ravnsborg and Bormann stopped at the crash scene. Ravnsborg quickly discovered Boever’s body just off the side of the road, near where the crash occurred. Bormann and Ravnsborg then drove to Sheriff Volek’s residence to inform him of their discovery. Sheriff Volek directed Ravnsborg to return to Pierre. Sheriff Volek contacted the South Dakota Highway Patrol and the Division of Criminal Investigation (DCI). Because the DCI is under the direction and control of the attorney general’s office, the North Dakota Bureau of Criminal Investigation (NDBCI) was contacted to investigate the crash.^[1] The South Dakota Highway Patrol was also involved in the post-accident investigation.^[2]

[¶8.] Ravnsborg was interviewed two separate times by the NDBCI. Ravnsborg also turned over both his personal and work cell phones to allow NDBCI to download metadata that was generated by the phones around the time of the crash. Law enforcement also drew Ravnsborg’s blood and conducted toxicology tests. The South Dakota Highway Patrol performed an accident reconstruction and NDBCI interviewed multiple individuals who interacted with Ravnsborg prior to and after the accident.

[¶9.] Ravnsborg denied he had consumed any drugs or alcohol on the night of the accident, which was confirmed by witnesses who observed him during the evening and by the absence of any drugs or alcohol in his system at the time of the blood test. Investigators concluded that Ravnsborg had been on his personal phone for much of his commute from Redfield to Highmore, but that both phones were locked at the time of the accident. It was also determined that excessive speed did not contribute to the accident. Furthermore, despite varying opinions regarding how far his vehicle veered off the road, investigators concluded that Ravnsborg’s vehicle was outside the lane of travel when the accident occurred.

The Supreme Court of South Dakota found several violations of Rule 8.4.

[¶31.] Rule 8.4(c) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” Ravnsborg urges this Court to adopt the Referee’s conclusion that he did not violate Rule 8.4(c). He argues that the Referee correctly found that the facts could not prove he was dishonest, misleading, or uncooperative throughout the investigation and any allegation to the contrary was not based upon fact.

[¶32.] From our review of the record, several of Ravnsborg’s statements after the accident raise significant questions about his honesty and truthfulness. Ravnsborg’s statement to the 911 operator that he hit something “right in the roadway” and his statements to investigators that he believed he was in the roadway are contrary to the forensic evidence. While there was some question regarding how far onto the shoulder Ravnsborg’s vehicle was, the forensic evidence clearly established Ravnsborg’s vehicle was not in the middle of his driving lane when it struck Boever.

[¶33.] In addition, Ravnsborg’s statements regarding his phone usage on the night of the accident raise serious concerns about his truthfulness with investigators. At the outset of his second interview with NDBCI, Ravnsborg emphatically denied using his phone while driving back from Redfield, except for two calls he made to his father shortly after leaving Redfield. Ravnsborg denied accessing his emails at any point during his commute home and stated that he did not text anyone or otherwise recall using his phone at any time during the drive.

[¶34.] Later in the interview, investigators told Ravnsborg that they found “internet activity” on his phone just before the accident occurred. Ravnsborg responded by stating “I don’t not use my phone” but reaffirmed that he was not using either phone at the time of the crash. Ravnsborg was then directly asked if he used his phone up to the time of the crash. In response, Ravnsborg put his head down, remained silent for a few seconds, and eventually stated “not that I can recall.” Ravnsborg explained that he remembered setting the phone down when he drove into Highmore because it had fallen from the vehicle’s center console during the trip but emphasized “I was not using it at the time [of the crash].” Ravnsborg was then asked what he was doing with the phone before he got to Highmore to which he responded by stating, “I looked at the time . . . I glanced at it . . . but nothing sticks out to me.”

[¶35.] Ravnsborg was then confronted with specific metadata found on his phone shortly before he had made the 911 call at 10:24 p.m. The metadata showed Ravnsborg had unlocked his phone, checked his Yahoo email account, accessed the Dakota Free Press website, and clicked on a political news article minutes before the accident. Once informed of this information, Ravnsborg’s story took another turn. He admitted that he “looked at stuff” on his phone and then sat it down to begin thinking about cases from work but reiterated that he was not looking at his phone when the accident happened.

[¶36.] Like Rule 8.4(b), the prohibition against dishonesty, fraud, deceit, or misrepresentation in Rule 8.4(c) applies in the context of a lawyer’s professional obligations and ability to practice law. “The purpose of lawyer discipline is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.” ABA Standards for Imposing Lawyer Sanctions, Standard 1.1 (Am. Bar Ass’n 1992). “Not every lawyer misstatement poses that risk . . . [i]nstead, there must be a rational connection between . . .” the dishonest act and purpose of attorney discipline to protect the profession and administration of justice. In re Conduct of Carpenter, 95 P.3d 203, 208 (Or. 2004). “If the evidence in a discipline case does not establish such a nexus, then the lawyer is not subject to professional discipline.” Id.

[¶37.] In the context of attorney misconduct, we define dishonesty as “conduct evincing a lack of honesty, probity or integrity; [a] lack of fairness and straightforwardness[.]” Attorney Grievance Comm’n. of Maryland v. McDonald, 85 A.3d 117, 140 (Md. 2014) (quoting Attorney Grievance Comm’n v. Sheridan, 741 A.2d 1143, 1156 (Md. 1999)). This also “encompasses the nondisclosure of a material fact.” In re Conduct of Gatti, 8 P.3d 966, 973 (Or. 2000) (citing In re Weidner, 801 P.2d 828, 832 n.2 (Or. 1990)). This “may be a lie, a half-truth, or even silence.” Id. (citation omitted). “A misrepresentation becomes fraud or deceit `when it is intended to be acted upon without being discovered.'” Id. (quoting In re Hiller, 694 P.2d 540, 542-44 (Or. 1985)).

[¶38.] We emphasize that Ravnsborg, just like every other criminal defendant, had a constitutional right to maintain silence. However, once he decided to submit to an interview with NDBCI, Ravnsborg failed to conduct himself with honesty. His evolving explanation regarding the extent of his cell phone use while driving involved actual dishonesty and misrepresentations within the meaning of Rule 8.4(c). Ravnsborg initially denied ever using his phone while driving, except to call his father. He only reluctantly admitted that he “looked at stuff” on his phone after he was confronted with specific information found on his phone. Even then, Ravnsborg attempted to downplay the extent of his phone usage by stating that he only used his phone to check the time.

[¶39.] At oral argument, Ravnsborg’s explanation about his statements to NDBCI concerning his phone usage raises even more concerns. Ravnsborg told this Court that he denied using his phone during the trip because he believed that his phone usage at the time of the accident was the only relevant time period regarding his phone activity. The questions from law enforcement were clear and directed Ravnsborg to disclose any phone use on the drive back from Redfield. Further, he would have undoubtedly been aware that law enforcement was investigating whether any violations of the law had occurred on the night of the accident and that using his phone at any point while driving was a statutory violation. See SDCL 32-26-47.1. Despite this knowledge and the clarity of the questions, Ravnsborg continued to deny or omit this information until it became obvious that investigators already knew the answer to their questions. Ravnsborg’s responses demonstrated a concerted effort to avoid criminal liability, through dishonesty and misrepresentations, which violated Rule 8.4(c). Finally, Ravnsborg’s patent dishonesty concerning the use of his phone, as well as the developed forensic evidence, raise genuine questions about the integrity of his statements regarding the night of the accident. This conduct, particularly considering Ravnsborg’s prominent position as attorney general, reflected adversely on the legal profession as a whole and impeded the administration of justice.

The Court also found violations of Rule 8.4(d) and (e).

Lawyer Referred to Grievance Panel for Nonexistent Citation

Park v. Kim, No. 22-2057, was decided by the Second Circuit Court of Appeals on January 30, 2024. The Court, citing Rule 37 and Rule 41(b), affirmed the dismissal of Plaintiff’s lawsuit for failure to comply with discovery and other obligations. The court also sanctioned the attorney for the plaintiff for using Chat-GPT to prepare portions of one of the briefs. The AI tool generated a fake case which was cited in the brief. The Court held that the failure to check citations violated Rule 11.

“All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure. Among other obligations, Rule 11 provides that by presenting a submission to the court, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2); see also N.Y. R. Pro. Conduct 3.3(a) (McKinney 2023) (“A lawyer shall not knowingly: (1) make a false statement of . . . law to a tribunal.”). “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, [and] legally tenable.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). “Under Rule 11, a court may sanction an attorney for, among other things, misrepresenting facts or making frivolous legal arguments.” Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam).

At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely. Indeed, we can think of no other way to ensure that the arguments made based on those authorities are “warranted by existing law,” Fed. R. Civ. P. 11(b)(2), or otherwise “legally tenable.” Cooter & Gell, 496 U.S. at 393. As a District Judge of this Circuit recently held when presented with non-existent precedent generated by ChatGPT: “A fake opinion is not `existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata v. Avianca, Inc., No. 22CV01461(PKC), 2023 WL 4114965, at *12 (S.D.N.Y. June 22, 2023).

Attorney Lee states that “it is important to recognize that ChatGPT represents a significant technological advancement,” and argues that “[i]t would be prudent for the court to advise legal professionals to exercise caution when utilizing this new technology.” Response at 2. Indeed, several courts have recently proposed or enacted local rules or orders specifically addressing the use of artificial intelligence tools before the court.^[3] But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure that her submissions to the Court are accurate.

Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was “legally tenable.” Cooter & Gell, 496 U.S. at 393. The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented. We therefore REFER Attorney Lee to the Court’s Grievance Panel pursuant to Local Rule 46.2 for further investigation, and for consideration of a referral to the Committee on Admissions and Grievances. See 2d Cir. R. 46.2.

We further ORDER Attorney Lee to provide a copy of this ruling to Plaintiff-Appellant Park — translated into Korean if necessary to permit Park to understand it — within twenty-one days, and to file a certification on the docket in this case attesting that she has done so.”

Comment: it saddens me that this trend of sloppy work and citing fake cases has continued. If you cannot complete your work on time and ask an AI tool to practice law, you can expect discipline.

Ed Clinton, Jr.

www.clintonlaw.net

Missouri Court Sanctions Litigant For Fake Citations

On February 13, 2024, the Missouri Court of Appeals, Eastern District, issued its opinion in the case captioned Kruse v. Karlen, No. ED111172. Karlen was a pro se litigant and the appellant and he was sanctioned for failing to file an appellate brief that complies with the rules. The appeal was dismissed. The brief had numerous deficiencies including, an inadequate statement of facts without citations to the record, no Points Relied On section and no Appendix. The brief also lacked a Table of Contents and a list of Authorities.

But all of that pales in comparison to the Court’s discussion of fake citations. “Particularly concerning to this Court is that Appellant submitted an Appellate Brief in which the overwhelming majority of the citations are not only inaccurate but entirely fictitious. Only two out of the twenty-four case citations in Appellant’s Brief are genuine. The two genuine citations are presented in a section entitled Summary of Argument without pin cites and do not stand for what Appellant purports.” Opinion pages 5-6. There were twenty two instances of fake citations in the brief. Some of the citations had real case names, but the asserted point of law the case stands for was entirely fake.

The Appellate offered an apology in his Reply Brief. “In his Reply Brief, Appellant apologized for submitting fictitious cases and explained that he hired an online “consultant” purporting to be an attorney licensed in California to prepare the Appellate Brief. Appellant indicated that the fee paid amounted to less than one percent of the cost of retaining an attorney. Appellant stated he did not know that the individual would use “artificial intelligence hallucinations” and denied any intention to mislead the Court or waste Respondent’s time researching fictitious precedent. Appellant’s apology notwithstanding, the deed had been done, and this Court must wrestle with the results.” Opinion page 8.

The court explained the obvious as follows: “We regret that Appellant has given us our first opportunity to consider the impact of fictitious cases being submitted to our Court, an issue which has gained national attention in the rising availability of generative A.I. “Citing nonexistent case law or misrepresenting the holdings of a case is making a false statement to a court[;] [i]t does not matter if [generative A.I.] told you so.” Maura R. Grossman, Paul W. Grimm, & Daniel G. Brown, Is Disclosure and Certification of the Use of Generative AI Really Necessary? 107 JUDICATURE 68, 75 (2023).” The Court dismissed the appeal as frivolous and awarded sanctions of $10,000.

When I began writing this blog, I did not consider the possibility that litigants would simply make up citations to support points of law they wished to argue. I have now covered three such cases in the last year. That is three too many.

Ed Clinton, Jr.

New Year’s Resolutions To Avoid Discipline

Here are some New Year’s resolutions to help you avoid disciplinary inquiries in your practice. Unhappy clients are the source of disciplinary complaints. Responding to a complaint swallows up time and money. The time spent responding to a complaint/grievance is unproductive time.

1.Make sure you have malpractice insurance. Insurance often has coverage for responding to client grievances. Check your policy limits and any exclusions. Insurance companies will refer you to their outside counsel, who are almost always excellent.

2. Do not display anger in communications with clients, especially when those communications are about unpaid legal fees. Anger triggers disciplinary authorities to take a closer look at the grievance. Losing your temper will cost you money and maybe more.

3.Archive text messages with clients. We all keep emails, but you should find a way to keep text messages with clients. Or never text with clients.

4. Use a carefully drafted engagement letter to set forth how you will charge the client and when you may withdraw. The failure to use an engagement letter is often a contributing factor in discipline cases. Where there is no engagement letter, you can be subject to a claim that you were not aware existed. “Lawyer failed to file my lawsuit.” The engagement letter could have protected you if you were only engaged to do estate planning.

5.Try your best to communicate rejections in writing. When you reject a client’s claim, responding in writing is often the best approach. The writing (email or letter) gives you a defense to the claim that you missed the statute of limitations.

6. Do not sue for fees if small amounts are involved. A lawsuit can generate a counterclaim or a grievance that will be a waste of your time. If you sue for a large balance, make sure you have another lawyer review your work before you file suit.

7. In any disputes with the client, explain why you think the client should take the action that you recommend. Tell the client that you are making a recommendation of settlement or other action to protect the client.

8. If there is a big problem with the client’s case, put it in writing. A written explanation that the case may be barred by the statute of limitations or caselaw will protect you when that client decides to file a grievance. Example: “we regret to inform you that your case appears to be barred by the statute of limitations.”

9. Follow the Rules of Professional Conduct. Read them every now and then and seek advice from another lawyer before you take some action.

10. Listen to your gut instinct. Your gut will often tell you that a prospective client will not work with you in a productive fashion. Clients with unrealistic expectations are the source of most grievances and lawsuits.

If you have an ethics question or just want to chat about an issue or a problem client, do not hesitate to contact us. We can be reached at 312-357-1515. We can often be of help to a you before trouble starts. Having a fresh set of eyes look at the problem can be very helpful.

Ed Clinton, Jr.

http://www.clintonlaw.net