Tag: politics

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.

Update: the ARDC Review Board upheld the findings of the Hearing Board and its recommended discipline. Here is a summary of the Review Board’s opinion.

In re Thomas Gordon Maag — Review Board Report and Recommendation (Commission No. 2023PR00054, filed April 9, 2026)

Disposition: The Review Board affirmed all of the Hearing Board’s misconduct findings and evidentiary/procedural rulings, and recommended that Maag be suspended from the practice of law for two years and until further order of the Court (“UFO”).

Background

The Administrator brought a three-count disciplinary complaint against Thomas Gordon Maag, an Illinois attorney (admitted 2000, also licensed in Missouri) who runs the Maag Law Firm in Wood River, Illinois. Maag had one prior discipline: a 60-day suspension in 2019 for taking a client’s house as payment without disclosing the conflict of interest, then suing that same client for eviction while still representing her in other matters. He represented himself pro se through the Hearing Board proceedings, then retained appellate counsel for the Review Board appeal.

The underlying complaint arose from Maag’s representation of Michael and Laura Ambrose, whom he agreed in 2019 to represent in three unrelated matters: a dispute over a faulty hot tub, a dispute over the appraised value of a diamond engagement ring, and a dispute with an insurance company over a life insurance policy. For roughly three years (2020–2022), Maag did essentially no work on any of the three matters — he never filed suit or sent demand letters — while failing to keep the Ambroses reasonably informed.

The three counts

Count I (neglect and failure to communicate) charged violations of Rules 1.3, 1.4(a)(3)-(4), and 1.16(d): failing to diligently pursue the three matters, failing to communicate with the clients, and failing to surrender their files. Maag admitted this misconduct on appeal.

Count II (dishonesty) charged that Maag tried to cover up his neglect through a series of fabrications, in violation of Rules 8.4(c) and 8.1(a). Specifically: he falsely told Michael Ambrose he had filed three lawsuits when he had filed none; he created a backdated “Memo to File” purporting to document an April 28, 2022 phone call that the Hearing Board found never happened; and, most strikingly, he sent the Ambroses a cover letter dated December 20, 2022 falsely stating he was returning their complete legal files, then staged a torn, unmarked, unpostmarked manila envelope in their mailbox weeks later — containing only the letter and no actual files — to make it look like the files had been lost in the mail. A postal inspector testified the envelope had never actually been processed by USPS (no cancelled stamps, no barcode), and the regular mail carrier testified she never delivered it. Maag also falsely told the ARDC he had mailed the complete files to the Ambroses.

Count III (failure to comply with a subpoena) charged a violation of Rule 8.1(b): Maag never produced his computer in response to a May 12, 2023 subpoena duces tecum seeking documents relating to the Ambroses, instead unilaterally asserting attorney-client privilege as to other, unrelated clients and producing only a limited “jump drive” that the Administrator’s forensic expert testified was insufficient for any meaningful forensic analysis.

The Hearing Board found all charged misconduct proven by clear and convincing evidence, based substantially on adverse credibility findings against Maag (it found his testimony false, deceptive, and untruthful in more than twenty instances) and credited testimony from the Ambroses, the mail carrier, and the postal inspector.

Issues on appeal

Maag argued (1) the Hearing Board erred on Counts II and III, warranting reversal and remand; (2) the Hearing Board Chair abused her discretion and violated his due process rights through a series of discovery, procedural, and evidentiary rulings (denying continuances, barring his proposed computer expert Robert Dorman as unqualified, excluding a late-obtained report from a second expert, excluding the Administrator’s Requests-to-Admit responses as “judicial admissions,” etc.); and (3) any suspension should be capped at one year with no UFO provision.

On the privilege issue central to Count III, Maag argued Rule 1.6(a) barred him from producing his computer absent a court order. The Review Board rejected this, relying on In re Zisook, 88 Ill. 2d 321 (1981): an attorney cannot unilaterally refuse to comply with a subpoena based on an asserted privilege — he must produce the material and then contest privilege before a court (e.g., by moving to quash under Supreme Court Rule 754(e)), which Maag never did. The Board also held that Rule 1.6(b)(5) affirmatively permitted him to disclose the Ambrose-related material to defend against the misconduct allegations, and that the subpoena and forensic process were narrowly limited to Ambrose-related documents, so no other client’s confidences were actually at risk.

The Review Board rejected each procedural/due-process argument in turn, generally finding the challenged rulings were within the Chair’s discretion, that many of Maag’s arguments had been forfeited for not being raised below (citing the O’Shaughnessy line of cases), and that his two oversized briefs (99 pages, citing over 125 cases) raised numerous new issues never presented to the Hearing Board.

Sanction

The Review Board conducted a de novo review of the sanction and adopted the Hearing Board’s recommendation of a two-year suspension, until further order of the Court. In aggravation, it emphasized: Maag’s false and misleading hearing testimony; his lack of genuine remorse or acceptance of responsibility (he told the Hearing Board “I did not lie to anybody” and asked that all charges be dismissed); his disclosure of confidential information about four unrelated clients during the proceeding; unprofessional conduct toward the Administrator’s counsel and the Hearing Board; the harm caused to the Ambroses; and his prior discipline, which had taken effect just days before he undertook this representation. In mitigation, the Board considered his 17 years of otherwise unblemished practice and personal hardships (his father’s death, his mother’s and daughter’s medical issues, and the pandemic), but found these insufficient to offset the aggravating factors. The Board found the case comparable to In re Houdek, 113 Ill. 2d 323 (1986), and In re Trigo (2004) — both two-year UFO suspensions involving neglect covered up by fabricated evidence and false testimony — and distinguished the shorter-suspension cases Maag cited as involving far less egregious or less prolonged misconduct, more credible testimony, and stronger mitigation.

Comment: This was a simple matter of neglect of a client matter by an attorney. It was a matter of negligence. What sent this matter off the rails was the deceptive actions of the attorney.

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.