EP 920- Protecting Your Bar License: A Cautionary Tale

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom, where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Elizabeth Lenivy:

Hello and welcome back to another episode of Heals in the Courtroom. I’m Liz Lenivy, and today I’m joined by Katie St. John and Elizabeth McNulty. Hello, ladies. Hi. Hello. I don’t know when this episode is going to drop, but for those listening, we are currently recording this in early October, which means very recently we were able to welcome the most recent batch of new attorneys who passed the July Bar and obviously got sworn in in September, which is always very exciting, going on LinkedIn and seeing who of your former law clerks are posting about becoming an attorney. And I’m reminded of that moment in my life, which now thinking about it, that was 10 years ago. Yikes.

But even though it was 10 years ago … Oh, painful to say. I still remember how exciting that moment was to be sworn in and I finally did it and just what a wonderful feeling of accomplishment. And so with that being said, congratulations to all of the newest members of the bar and congratulations on passing the bar and joining this really great profession. But now that you have that bar number, you’re going to spend the rest of your career protecting that bar. And I remember something that I was told when I first got licensed was that there is no client and no case that is worth your bar number, that is worth your license. And we are going to be spending a little bit of time today talking about the importance of protecting your license and your professional reputation. And we’re going to start it with a bit of a cautionary tale.

I’m going to start by talking about an order that came out of the United States District Court in the Northern District of Alabama, Southern Division, involving motions that, of course, there’s AI hallucinated cases, but the additional issue that was addressed in this particular sanctions order was about who signed off on these motions. And I think it really does highlight the importance of, again, your professional reputation and where your bar number is going. And I’m going to start by saying I’m not going to be naming any attorneys specifically. I’m not going to be saying the law firm by name. If you want to look it up, you can. It is a very public order that was published. We’re instead going to be focusing though on the facts. So let’s start with the procedural background of this particular case. This sanctions order involved two separate discovery motions filed by the defendant.

Motion number one was a motion for leave to take a deposition of an incarcerated person under the federal rules. And in that particular motion, the signature block contained the names of four attorneys. I’m going to call them of counsel, partner one, partner two, and associate one. The second motion was a motion to compel interrogatory answers and document production from the plaintiff. That signature block contained the names of four attorneys of counsel, partner one, partner two, and associate two. Interestingly enough, associate two was included on this motion, but had never actually entered a notice of appearance in the case. So I thought that was an interesting little twist in there once you see how the court approached that particular attorney. So these two motions get filed. The plaintiff files their response objecting on several grounds, including that the defendant appeared to have fabricated citations to legal authority in both the motion for leave and the motion to compel.

And in total, there were five problematic citations across the two motions. So getting ourselves in the timeline here. Plaintiff files his response motions on a Thursday. The next day, so Friday, 12:14 PM, the court issues an order that the defense firm must show good cause for why they should not be sanctioned and that this should be submitted by Monday at 3:00 PM and then schedules a Wednesday 9:00 AM show cause hearing. I read that in the order and immediately was like, “Oh man, I feel like my weekend’s getting ruined based on that. ” You never want to receive that kind of order, but especially on a Friday at 12:14 PM. Okay. Three hours later, so we’re still on Friday, partner one and associate one filed motions to be excused from the show cause hearing because ” neither of them participated in any way in the drafting or filing of the motion for leave and partner one claimed that he had another out of state hearing to attend.” 6:39 PM on that Friday, the court denies the request.

Yikes. Monday rolls around. Court issues another order clarifying its previous Friday order where it specifically says, “Hey, we’re talking about both problematic motions here and associate two, who again never entered her appearance on this case. She also needs to show good cause for why she shouldn’t be sanctioned too.” So remember, she was not technically an attorney of record, but her name appeared on the signature block. She’s involved in this too. So now all five attorneys and the law firm have to file their responses. Partner two owns up to the fact that he used ChatGPT to obtain case citations to support arguments made in the motions, but he did this without verifying the accuracy of those citations. And he now knows, as we all know, that the citations were false. So Wednesday rolls around. Now we’re at the show cause hearing and I want to get into what each attorney’s role was and then we’ll talk about how the court doled out reprimands.

Okay. So we already know partner two has admitted that he used ChatGPT and what he explained is he performed a search to identify supporting case law for the discovery issues delineated in the motions, but he failed to verify the case citations ChatGPT gave him. He admitted that this was a serious error and that it did not comply with his firm’s policy on the use of AI. And he also claims that these two motions were the one and only time he had ever done this. Okay. Of counsel. Of counsel said that he drafted the initial motion for leave and submitted it to his direct supervisors who were partners one and two, and he copied associate one. Partner two returned revisions to the motion for leave that included the string citation at issue. That’s the other thing that caught me. Apparently it was a string site. So anyway, of counsel said he reviewed the edits for grammar and typos, but he did not conduct any independent review of the new cases added to the revised draft of the motion for leave that would be submitted to the court.

And upon approval by partner two, he e-signed the motion. He attested that he had no knowledge that AI was ever used in generating these citations. Partner one, which if you remember, partner one was one of the two attorneys who tried to get out of the show cause hearing. He explained that he and partner two worked on this particular client’s matters together and they would typically assign one or two younger attorneys to work on the cases with him and partner two provided supervisory coverage in addition to partner one. And in this case, those younger attorneys are of counsel and associate one. But partner two provides more of the “day-to-day oversight and supervision.” Regarding the motions, he says that he did not review the motion for leave due to other work obligations, but he did review the motion to compel. And something I thought was interesting was that the court included the timestamps of when this motion to compel when it was developed.

And the timing just caught me off guard. 11:43 AM on Saturday of counsel sends the original draft to partners one and two CCing associate one. 2:45 AM on Sunday morning, partner two sends the revised draft, which means he’s up at nearly three o’clock in the morning sending the revised draft that we now know includes these ChatGPT generated hallucinated case citations. So that’s 2:45 AM on Sunday. 7:29 PM on Sunday, partner one says he briefly scanned the document and responded to of counsel within 15 minutes, indicating that he did not have any changes. He said at the hearing that his review focused more on the facts and legal arguments made and that he didn’t do any substantive review of the legal authorities because the document had already undergone detailed review by partner two. And he makes the argument basically that, “Look, I trust these guys. I’ve worked with them for a long time.

I know their work product. I know they’re good attorneys. I have no reason to doubt that they were using real case law and not AI hallucinated case law.” He also went on to talk a little bit about his own concerns with AI as well as touting the firm’s robust policy on it. Associate one was copied on emails circulating the drafts, but he did not draft, revise, or review the motions at issue, and he also affirmed he has never used generative AI chatbots to generate legal or other authority citations for submission to any court. Associate two says she was not involved in these motions and actually had no knowledge about the preparation of these motions. It sounds to me like her name may have been erroneously included on the signature block, but remember, she was still specifically called out to show up for this show cause order and her name is in the order, but it kind of sounds like she was a little bit of collateral damage there.

The firm itself also had a representative there at the show cause hearing to talk about all of the steps that the firm had taken in developing an AI policy and the steps since the incident to review filings from these attorneys to confirm there wasn’t any other issue with other cases. However, another issue that the firm acknowledged and that it admitted it did not have a policy on was who shows up on signature blocks. The firm admitted there’s no specific policy as to who appears or should not appear on the filing and instead leaves it up to the individual lawyer’s discretion in terms of who should be on signature blocks. And they did represent to the court that the firm needs to “make clear that junior attorneys who affix their signatures to a filing must certify that filing even if a senior attorney sends it to them.” So now we know what happened, now we know who all of the players are, what their roles were.

Then we get into how the court doled out sanctions and who they doled out sanctions to and what the reasoning was. So I’m going to start with associate two, who I actually, I feel really terrible for. So the court recognized that associate two had no knowledge and no control over the situation. She was released without discipline. Associate one, the court recognized that he didn’t draft, revise, or review the motions. They did point out he is an associate without supervisory responsibilities and there was no indication in the record that he delegated the use of his signature on these motions. So he is also released without discipline. Focusing on the law firm, the court did acknowledge that the law firm proactively addressed the AI challenges prior to this whole mess, pointed out that it’s got a policy requiring that attorneys do full checks of the accuracy on citations and that since this incident, the firm had escalated its internal warning efforts, one, by sending a reminder to all attorneys of their ethical and professional duties to verify the accuracy of all citations or other authorities presented to any court, and two, conducting additional and extensive firm-wide training on the appropriate use of AI.

The firm was also updating policies with lessons learned from this episode, including pre-filing protocol, requiring review of all legal authority and any document to be filed with a court and confirming the existence, accuracy, and relevance of each citation. So they’re really beefing up their policies in response to this. The firm admitted that it also needed to make clear about junior attorneys affixing their signatures to filings and the responsibility to verify the filings. Again, even if a senior attorney has sent it back to you, the messages, if your name, your bar number’s going on there, it doesn’t matter if it’s a partner sending it to you, you have a responsibility to check those citations. Now, where the firm got a little sideways, I think with the court, is that it did try to argue that the court should consider that even though the citations were made up, the general legal propositions were technically correct.

The court did not like that argument. The court called it a stroke of pure luck that does not remediate the waste and harm caused by the misconduct. The court further stated, “Any sanctions discounted on this basis would amplify the siren call of unverified AI for lawyers who are already confident in their legal conclusions. The court will have no part of that. ” So shot that, it doesn’t matter if you were right or not. If you’re submitting fake citations, that’s bad. That’s bad. However, in deciding whether or not sanctions were appropriate, the court did find that the firm acted appropriately and there was no evidentiary basis that the firm had acted in bad faith or with recklessness, released without discipline. Okay, so now let’s talk about the people who did get in trouble. Let’s start with of counsel. The court found that he had drafted, signed, and personally filed both motions at issue with the fabricated citations.

And even though he did not personally know about partner two’s use of the generative AI, the court still found sanctions were appropriate. Some of the things that the court pointed out about of counsel was that he still had an obligation to check the citations before signing the motions and filing them with the court. And to his credit, he did admit as such, stating at the hearing, “I understand that by signing these motions, I was verifying and accepting responsibility for the contents of those motions. I take full responsibility for that. ” The court found though that he had failed to discharge his most basic responsibility as an attorney signing and filing motions with the court to make sure that the statements in the motions were true. And the court finished this portion of the order by saying, “Attorneys who sign motions must know that they risk serious sanctions when they make no effort to ensure that those motions tell the truth.” So it’s not just, “I have plausible deniability because I didn’t know that it was fake.

Someone else put it in there.” You got to check, you got to do the work. Okay. Let’s go to partner one now. Similar vote as of counsel, signed it, submitted, didn’t know AI was used, but similarly made no efforts to verify the contents of the motions himself. And you may remember from when we were kind of talking about the roles of these attorneys, he is one of the two attorneys who asked to be excused from the show cause hearing. And I think that that made his case worse because the court kind of let him have it. It was one of those orders that was already very difficult to read. And then I got to this particular part and I had to set it down for a minute, kind of felt like I was being yelled at. The court stated that partner one’s statements at the hearing actually deepened the court’s concerns about this issue as it demonstrated quote, an intense lack of concern for the seriousness of the misconduct.

And the court also was really not convinced by the argument from partner one that, “Look, I’ve worked with partner two before all these years, this has never happened before.” Court pointed out, “You didn’t know what happened here until we brought it to your attention. So how can you make such a bold statement that this has never happened before?” Side note, I feel like that’s a good example of why we should never speak in absolutes. Partner one had also made the argument that because he had represented this particular client on similar matters with similar factual and legal issues all the time, we cut and paste arguments. And I feel that that’s actually a pretty common practice. I mean, I’m thinking about whenever we have to respond to a motion for summary judgment. How many times have you pulled from an old motion, just the general language about the high burden for summary judgment?

And are you double checking to make sure that law is still good and there’s no updates or changes or anything like that? Or are you just copying and pasting because this has always been the law? Anyway, he tries to make that argument that this is something we often use and there’s nothing that would make him think in this particular case that Gen AI was going to be utilized because again, we so often cut and paste arguments. Court also didn’t like that and reiterated the obligation to check. And I’m just going to read from the court here. To be clear, the court’s finding in this regard is not simply a harsh inference. When it became apparent that multiple motions with his name and the signature block contained fabricated citations, partner one’s nearly immediate response was to try to skip the show cause hearing and leave the mess for someone else.

And when the court compelled him to appear at the hearing, he paired his apology with an explanation in greater fullness of how very little work he personally puts in to be sure that his team’s motions tell the truth. This cannot be how litigators, particularly seasoned ones, practice in federal court or run their teams.

Yikes. Okay. And then I’m going to just skip what he said about partner two because I think we all know partner two got it. I mean, and to his credit, he did own up to it and acknowledge that this was him and him alone and no one else knew about it, but regardless, let’s get into the sanctions now. There were three particular sanctions that the court issued that they feel very harsh, but under these circumstances, and especially given the frequency with which we are hearing about this happening, I’m not going to say that they’re inappropriate. So the first one was that of counsel partner one and partner two were all disqualified from further participation in this particular case. So they are no longer attorneys in that particular matter, but there was also a public reprimand paired with limited publication requirements. So what does that mean?

Well, the court specified that within 10 days of the order, the two partners and the of counsel had to provide a copy of the judge’s order to their client’s opposing counsel and presiding judge in every pending state or federal case in which they are counsel of record and to every attorney in that law firm.

Kate St. John:

Boy cow.

Elizabeth Lenivy:

Yeah. Oh, that’s got to be a tough email to send out. Do you just BCC everyone? I was going to say,

Kate St. John:

What do you even say? “Hey, by the way, so you guys all know this happened to me. ” I mean-

Elizabeth McNulty:

I feel like with each individual court, you might have to … I don’t even know. When do you file it? That’s crazy.

Elizabeth Lenivy:

I don’t know.

Elizabeth McNulty:

Do

Elizabeth Lenivy:

You

Elizabeth McNulty:

Just resign and walk away from the practice?

Elizabeth Lenivy:

Well, we can get into it, but the other part of the public reprimand is that the clerk of the court was also directed to submit the order for publication in the federal supplement. And then the last part of the sanction was referral to applicable licensing authorities. So the three attorneys at issue had to provide the clerk of the court a listing of the jurisdictions in which they are licensed to practice law within 24 hours of the order. So quick turnaround. And then the clerk had to serve a copy of the order on general counsel for the state bar and any other applicable licensing authorities for further proceedings as appropriate.

Kate St. John:

Yeah. So anyways, welcome to the practice of law.

Elizabeth Lenivy:

I mean, that decision came down over the summer pretty close to the time that I think people were taking the bar. And when I had heard about that case and sort of the timing of everything, I think it is a really good but harsh and painful reminder of the ethical responsibilities we have and the oath that we undertake to not make any false representation upon the court and also how your bar license is yours and you cannot trust it to anyone. You are 100% responsible for protecting your own license. And I think that this case, especially with those two attorneys who said, “Look, we trusted this guy. We have no reason to not trust this guy.” We’ve worked with him, he’s a smart, competent, very capable, accomplished litigator. Why would we have any reason to doubt that he is not doing his job appropriately? That plausible deniability was not enough to protect them from getting some incredibly harsh sanctions.

Again, not saying it was inappropriate sanctions, but that … And I think the court, when you read the order, notes that, look, it’s not enough to just give a monetary fine and a public reprimand. We need to start making an example out of this because this has to stop.

Kate St. John:

And I was just on Facebook the other day and I was scrolling and there’s a newer attorney who just passed the bar and he had posted something and I can’t even remember what he had posted, but one of the comments said, they were going back and forth in not the nicest manner, but one of the comments said something like, “AI is about to replace your entire profession anyways,” is what one of his, I don’t want to call him friends, but people on his Facebook said. And I think that this serves as such a strong reminder is that as AI advances and it can do all sorts of things and be a tool for us, it absolutely can’t at this point replace any of us in this profession because of the serious, the duty and the responsibility that we have that we’re talking about today, and obviously relying on AI in this specific instance was, I mean, so detrimental and awful and every other embarrassing, I mean, for the folks involved.

So I think it’s just a really interesting time to be having this discussion.

Elizabeth Lenivy:

Yeah. And I was thinking about that episode we recorded not too long ago about how we utilize AI. And I will say, I’m sure that there are a lot of people who feel comfortable using it to sort of beef up their motions or to help them do research. I have not done … I just don’t feel comfortable with it. I mean, it just seems too scary and too uncertain, but I will say the duty to shepardize cases and confirm that case law, it was never whether case law was real, but it was more about whether case law says what you are saying it says and that it’s still good case law. I mean, I remember getting that lesson in law school and specifically watching a clip from the OJ Simpson trial. Did you guys see that clip? Were you shown that clip in law school?

Kate St. John:

I don’t remember that, but I definitely remember what you’re talking about with shepherdising cases and checking the page if you cite a page to make sure that is in fact what that page says. I still do that. I go to that specific page and I’m like, “If we are citing that page, that better be what that page says.”

Elizabeth Lenivy:

The story that we were shown a clip, and again, OJ Simpson, it was, I can’t remember her name. I just remember Sarah Paulson played her in the TV series, but it was a clip of her. She was the lead prosecutor on the case and she was citing an authority. She was reading from case law and the defense attorney was like, “That was overturned. That’s no longer what the law is. ” And she got called on it and had to change her tune and say, “Well, even though that’s not what the law is, the general…” And it was just so embarrassing. And I still remember that. And now we get assignments from law clerks, for example, or maybe something from another attorney submit something to us or if we’re using another attorney’s general research and drafting something, I’m still going to go through and double check every single case.

And it does seem kind of crazy to me that people don’t do that, but I also can see the argument that the attorneys in this particular case made, he’s a partner, he’s a partner. He’s been doing this a long time. We’ve worked closely together. I have no reason to doubt him. And I’m sure that there are older attorneys who think that, “Well, I can trust the attorneys that I work with and I’m so busy and I don’t have time.” And that one guy talked about, he turned it over, partner one returned it back with final checks in 15 minutes. So I think it’s a really interesting case. It was a slog to read through that order just because again, as an attorney myself and thinking about the stress that comes with getting something so terribly wrong and then publicly shamed for it, that was a very stressful part of this reading.

But I kind of want to turn the conversation more now to this general idea of the importance of protecting your bar license.

Elizabeth McNulty:

I’m curious, we’re talking about young lawyers just getting licensed. And I’m curious, in this case, the associates were in the clear because they didn’t work on it. That’s quite surprising just because I feel like most, it’s kind of the work of an associate to draft. These didn’t seem like that. Motion to compel discovery doesn’t seem incredibly important. You would’ve think that they would’ve taken the first crack at it. So I would be curious to see what a court would do or this court specifically, what they would’ve done if it had been younger, less experienced lawyers, and if the punishment would’ve been ash harsh just because when you’re a young lawyer, you kind of get a pass at certain things. I don’t know specifically with AI because I don’t know if they would’ve even made that kind of mistake just because I feel like ever since we’ve heard about AI using it for research, it’s just like it hallucinates cases.

You need to go check them. So I don’t know, but I find that to be interesting and if it would’ve come down differently.

Elizabeth Lenivy:

Yeah. I was curious about that as well because the court was very specific in saying, and putting poor associate two aside who, again, it sounds like someone just accidentally threw her name onto a motion, which I can’t think of a worse way to have my Friday of, I don’t even know what this case is and no, I’m getting called into federal court. But for associate one, the court was very intentional that he played no part in any of the drafts or the revisions. It sounds like he was just CC’d. And so I do think that the court recognizing how young the associate was, I have to imagine that the court took that into consideration, the fact that this is … I mean, there’s a big difference between a first year associate and maybe a fifth year associate and also the incredible power dynamic there to go in and to check if someone is right or wrong.

And also for defense attorneys, they have to explain all of their billing. And so if you’re going in and you’re checking a partner’s work, and then you’re going to turn around, you’re either going to eat that time, which they shouldn’t have to do, or you are going to have to explain your billing. And if nothing is hallucinated, and if all that case law is accurate, then you may kind of get called on, “Well, you’re wasting the client’s money and you’re wasting time.”

Kate St. John:

It’s also crazy to me to just think about all of this coming from a signature block.

I mean, it should cause, I feel like a lot of us to take a pause when, even if it’s something simple, but just making sure that we’re crossing our T’s and dotting our I’s, no matter whether it’s a simple motion or it’s a really difficult, important motion. It’s just one of those things where the longer you are in this profession, the more cases you’re involved in and working in teams, you do have to have that level of trust. I know we’ve talked about that on this podcast as well, but at the end of the day, it’s your license and your reputation and that you ultimately have to protect. It’s not up to anybody else.

Elizabeth McNulty:

Yeah. I wonder if it’ll cause a change in not every attorney is on the signature block anymore and it’s just the person who wrote it or the people who were involved in writing it. Because I mean, that would’ve saved some of these people from either being called into it or from being sanctioned on it if they hadn’t been a part of the signature block. Right.

Elizabeth Lenivy:

Yeah. And I think about it in terms of our team’s here and it’s not uncommon, for example, someone recently needed coverage at a hearing and I was available and I knew nothing about the case, but I said, “I can get caught up and I can help you cover your hearing. No problem. But I’m not going to plan on doing anything else in this case other than helping you cover because that’s what a team, that’s what a firm does.” And now I’m an attorney of record on this particular matter and I didn’t immediately then file my withdrawal after I covered this one hearing. So I’m still an attorney of record on the matter and it’s getting wrapped up. So I guess I feel better about that. But think about how often that happens. Or someone steps away on leave, you fill in for them for a couple of weeks or months until they come back and then they take the case back over, but you’re still on, because you never know if you might get called back in.

And so it’s an interesting and very scary idea. Now, luckily I will say I do trust all of my colleagues here, but I got a feeling that partner one and counsel probably also said the same thing about partner two. So it’s, oh man, it’s a tough thing to think about. It’s deep.

Kate St. John:

It’s deep.

Elizabeth Lenivy:

It’s what we’re doing. We’re talking about deep things. So along that vein though, I do want to maybe shift the conversation more generally to this idea of protecting your license, protecting your professional reputation. And I want to throw it to you guys about whether you have, in your careers, ever faced any type of ethical dilemma, whether from another attorney or from a client. And obviously, we don’t have to get to two specifics, but whether you have ever faced any situation or crisis like that and how you have handled it.

Kate St. John:

Yeah. I mean, I can think of a time for sure where, and it was when I was three and a half years out, you’ve got a part of protecting your license is knowing who you are also associating yourself with in this professional community. Just because somebody’s a lawyer doesn’t necessarily mean they’ve got a great character. And that was kind of it for me, making sure I’m aware of who I’m associating myself with and what we’re working on together to make sure that the way I practice law is the same way that that person also was going to practice law. And I think the way that I dealt with it was I just part of finding a good mentor, just finding somebody that you can bounce ideas off of, whether it’s an ethical issue or something as small as handling a difficult client conversation, what do you need to say to protect your license?

Actually just, I mean, not too long ago, I had a client who a statute was going to blow and they ultimately decided, “I don’t want to pursue my case.” And that’s one of those things where it’s like, we’ve got to do everything we can to say, you can’t force them to pursue a case, but they have to seriously understand the consequences of, okay, if you don’t do that, you might not ever be able to bring this case ever again, period. And when you’re talking to people who have been involved in traumatic situations, maybe they don’t want to pursue the case because of what they will have to go through. And that’s totally valid, but it’s just like they have to understand that they’re giving that write-up. And that was the first time I’ve ever had that where I had the client in front of me, we were going over their petition that was going to be filed and they were like, “Actually, I don’t want to do this anymore.

I’m leaving.” And I was like, “Oh, okay, hold on real quick. Just hang tight and let me make sure we don’t need anything.” And so we ended up handling it and it all ended up fine. But it’s just one of those things where it’s like you’ve got to have older, more experienced lawyers that you can lean on, trust in, have open dialogue with, and you know they’re being honest with you and that they also have your best intention.

Elizabeth McNulty:

I think for me, what comes to mind is sometimes clients will put you in a precarious situation. Either they’ll want you to do something that you think is unethical, maybe regarding settlement negotiations, negotiating bad faith, or I think it comes up sometimes in discovery, depending on the client, where they’ll want to not turn something over and you have to have the conversation that you have to turn it over or there’ll be certain claims or categories of damages that you can’t pursue anymore, or potentially you’re just going to have to terminate the relationship because my license is not worth your case or what you want me to do. And sometimes I feel like clients just don’t understand. It’s not that they’re asking you to do something that they think is unethical. They see TV and they see lawyers on TV do crazy stuff. Harvey Spector is always doing something that’s really in the gray.

And the practice of law just really isn’t like that. At least it’s not like that for me or at this firm I’d like to say. So I feel like you just have to explain that to them that like, no, we’re not going to do that. And if that’s something that you want to do, then I’m not the right attorney to handle your case. So it’s an awkward and difficult conversation to have. And sometimes in the back of your mind, you’re like, “Well, it feels like I should do anything to keep the client happy.” And you have to draw a line there.

Elizabeth Lenivy:

Yeah. I don’t know if this is an ethical situation or not, but it is along the vein of professional reputation and how we handle that with a client. And I had someone who I turned down their case and I explained to them, “This is why I don’t think you have a case.” And the response I got was, “Well, could you just send them a nasty letter and see if they’d be willing to settle without us filing suit, knowing that we’re never going to file suit.” And I was like, “So you want me to affix my name, my signature, my firm’s letterhead to a bullshit threat?” And of course I didn’t say it like that to this particular person. I responded, “Is that something someone could do? ” “Sure. “I goes,” And some attorneys might do that. I’m going to tell you now that no attorney at this firm will do that.

We’re not in the business of making empty threats and I don’t think that my reputation is worth that, especially in a city as small as St. Louis. “And the client, I will say, I think really appreciated that response, but I think it’s an example of just how precious your reputation is. And again, no client, no case is worth you sacrificing that reputation or again, your license. So I guess, do you all have any advice? And Katie, you’ve kind of touched on the importance of finding good mentors. Elizabeth, you’ve talked about the importance of talking to clients and making sure they understand all the potential implications, but do you all have any other advice for newly barred attorneys about protecting their license, especially in these high pressure environments that we work in?

Kate St. John:

I would say do your research and make sure you understand what all is out there in terms of the ethical requirements. You might get into a situation and you’re just going with the flow, that’s how somebody else is doing it. Like in this specific case study we talked about earlier, the associate, it was just kind of like an innocent bystander in the whole situation, but you’ve got to know what you’re doing and what the rules say so you can make sure you’re following them. And I would also say, no matter how long you’ve been out, the ethical rules apply to all of us the same. So if you feel like you’re in a situation where things are being blurred or you have a concern, it doesn’t matter if you’re a month out or 10 years out, you’ve got to say something to make sure that everyone else in the room, they might not just be thinking about it.

So don’t be afraid to say, Hey, however you have to have the conversation, but you’ve got to speak up because not everybody can do that for you.

Elizabeth McNulty:

This isn’t something I had thought about until I went to a recent CLE, but you can’t depend on your firm to protect you as far as following the ethical rules. It’s something that, like you said, Katie, they apply to everyone and it’s your responsibility to make sure that you are conforming to them. And even if it’s a firm that you just left, you can’t depend that they’re going to do everything ethically for you. So just keep that in mind whenever you’re moving around firms or just starting out your practice because there are a lot of rules. So maybe consult an ethics lawyer if you’re really unsure.

Elizabeth Lenivy:

Yeah. The only other thing I wanted to add is the importance of documenting and putting things into writing. And Katie, I know you talked about the issue you recently had with the client and an upcoming SOL. I hate those cases when I know there is a statute of limitations coming up really soon and if we’re not able to file it or whatever the situation is, even when we decline cases that we know the statute could be years and years away, every letter to a client where we’re closing out the relationship, there is in bold, at the last paragraph, it always mentions there is a time limit under which you can file this action and failure to file within that time limit could forever bar you from pursuing this claim. Consult another attorney immediately if you want to pursue this further. And I think that that’s true, not just of statute of limitations, but if you have a client who’s being difficult and you’re concerned about them not turning things over, sometimes putting something into writing, especially because you don’t know if that client’s going to turn around, try to sue you for malpractice.

So it may not just be an ethical complaint. It could be a potential malpractice claim. So anything that you are concerned about, I say make sure you are documenting it. And I also think that that includes if you have concerns about a relationship with another attorney you are working closely with, if you’re sending something off to someone and if they file it without running it back to you, make sure you are keeping track of when that timeline. I mean, I know it sounded so goofy about 2:45 AM sending off this email and at 7:29 PM, he’s reviewing it, but if everyone CC’d on there has a responsibility to double check everything, make sure that you are keeping track of that. So documentation I think is crucial, and that was something else I took from this particular case. So Elizabeth, something you had mentioned earlier was like, what do you even do in this situation?

You just walk away? I don’t know if I have an answer to this, but does anybody have thoughts on how or even if you can recover from such, in my opinion, a devastating blow to your professional reputation? Is it repairable?

Elizabeth McNulty:

Yeah, I think it sort of depends probably on client’s reactions to this, what the bar licensing people decide to do with this. In the instance of the case we were just talking about, there’s a chance that there’s no other repercussions. I would think if I saw that, I’d be like, “Looks like you’ve been punished enough, we’re going to just move on. ” But I mean, if it were me, I feel like I’d have to move. I mean, I don’t know how you keep practicing in that same area because everyone knows, but I also think it’s very clear from this and kind of by the order that that guy was kind of made an example of, he made a mistake and he owned up to it and that probably any one of us without, I don’t know, before this could have made. So I would hope that people would kind of give him a pass, especially in light of these times and all of the unethical behavior we see all over the place.

Is this the worst thing that you could do with your license? I don’t think so. So I hope this person is kind of able to rebuild his reputation, but I mean, if it were me personally, I think it would be really hard to keep practicing. I think luckily with what we do on the plaintiff’s side, I think it’s easier to get clients, but if you’re on a business where your clients are businesses, this might be a tougher sell. So maybe you should switch practice areas.

Kate St. John:

I feel like I’d be frozen in time for a long time before I decided what I would actually do if this were … I mean, it’s kind of one of those things where you’re like, all the other bad behaviors that are going on, is this the worst? I mean, obviously in the judge’s side, they might not like our spin on that, but that’s a good point.

Elizabeth Lenivy:

I guess in thinking about your much more positive answer, Elizabeth, and reflecting in on that, I feel like America is the land of second chances, right? And look, the nice thing is people’s memories are short. Something else will happen. And I don’t want to take away from the fact that this particular attorney seems to have had a very accomplished career. And hopefully this really just was a one time slip in judgment, but it ultimately does serve an important lesson for the rest of us and a good reminder for the rest of us. And I think a good reminder for law firms, because something that was really stressed throughout the order was that the law firm had such a robust AI policy, and this kind of seemed like an attorney who went a little bit rogue. So I think that if you’re a law firm owner, it is not enough to just tell or expect your attorneys to not behave or conduct themselves in such a way, but to make sure, what did I say earlier?

Document it, put it in writing, make sure you have a specific policy that you have circulated and that all attorneys in the firm are aware of it because that seemed to play a very big part in the court deciding to not sanction the law firm. So with all of that being said, thank you all for joining us for this episode of Heals in the Courtroom. Remember, new episodes drop every other Wednesday, and if you ever want to be a part of the conversation, you can reach out to us at heelsinthecourtroom.Law. Thanks so much, guys. Bye.

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