The 14-page motion looked like any standard court filing in a civil lawsuit. Filed in April in San Diego Superior Court, attorneys defending a local company were making a routine request for a judge to authorize additional expert witnesses in a vehicle collision injury case.

But on the sixth page of the motion, the attorneys cited legal authority from a case that does not exist — it was hallucinated by artificial intelligence.

A San Diego judge wrote in October that she was “deeply troubled” by the conduct of the company’s civil defense attorneys. She found they had filed multiple documents containing AI hallucinations, including citations to non-existent cases, fake quotes from real cases and inaccurate citations to real but irrelevant legal authorities.

That is one of at least two known San Diego cases that are part of a troubling trend of attorneys abusing or misusing AI, especially generative AI, a powerful technology that can at times fabricate information with no basis in reality.

But even as legal watchdog groups have documented hundreds of AI hallucination cases in the U.S. and around the world, legal experts and attorneys say those cases are rare, arguing that AI is an important tool being put to good use throughout the legal profession, helping lawyers research case law, analyze evidence, draft contracts and complete any number of rote tasks.

“We can’t just ignore generative AI, we have to become experts in the use so that we can avoid issues … where hallucinated case law gets into final documents,” Bryan McWhorter, a patent attorney and partner at the firm Knobbe Martens, said in an interview. “But I think when leveraged correctly, generative AI is frankly a power tool. It’s going to allow me to produce higher-quality work product in less time and deliver that value to clients.”

McWhorter recently argued that AI cannot now and likely never will be able to replace human legal analysis. That’s a view shared by James Cooper, a professor at California Western School of Law in downtown San Diego and co-author of the book “A Short & Happy Guide to Artificial Intelligence for Lawyers.”

“It complements all our skill sets,” Cooper said. “(But) there still needs to be a human in the loop.”

Cooper said there will always be subtlety in fact-finding and questioning people “that robots don’t understand … AI tools can’t fully engage with the nuance of humankind.”

Even so, Cooper is concerned that the use of AI in the legal field may be advancing too rapidly, and he hopes attorneys and firms are implementing safeguards that lawmakers and regulators have not.

“We’re at a juncture now where the technology is far outpacing our ability to regulate it, both as a legal profession but also in the real world, in a non-legal context,” Cooper said. “… We don’t know yet where to put the guardrails.”

‘Risks are no different’

As the use of AI has exploded in recent years, legal organizations have grappled with what sort of guidelines and policies to put in place to ensure that attorneys who use the technology do so ethically and responsibly. That can look different for a patent lawyer such as McWhorter and attorneys who litigate criminal and civil cases before judges, though the basic principles are largely the same.

“Broadly speaking, (the) risks are no different than we’ve always had in the industry, which is we must produce work that is 100% accurate and maintains all of our ethical obligations regarding client confidentiality,” McWhorter said.

For courtroom litigators, a federal judge in New York helped set the standard for the use of the technology in June 2023 while presiding over a case in which attorneys filed documents containing AI hallucinations. He wrote that there is “nothing inherently improper about using a reliable artificial intelligence tool for assistance,” but also noted that existing rules required that attorneys ensure the accuracy of every filing.

That has been the theme of most court opinions and bar association guidelines issued since then.

“Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations — whether provided by generative AI or any other source — that the attorney responsible for submitting the pleading has not personally read and verified,” wrote a panel of judges from California’s Second Appellate District.

The judges said the September opinion was the first by a California court to address “the generation of fake legal authority by AI sources” and should double as a warning for all attorneys in the state.

The American Bar Association and California State Bar have issued similar guidelines that AI cannot replace the judgment of trained lawyers and that attorneys should not become overly reliant on the technology.

Cooper, McWhorter and organizations such as the ABA all agree that there is a long list of legitimate uses of AI technology in the law. Much of it is geared toward helping summarize and analyze large data sets, while other tools can help be a middle step in crafting writing.

“The best analogy is we are creating the bones of the strategy, generative AI is adding the first-pass flesh onto those bones and then we’re going back and sculpting it into the final creation,” McWhorter said. “It’s really an intermediary in the process; it’s neither a beginning nor an end.”

‘Erodes trust in the legal profession’

Thus far, the most obvious and visible risk that has emerged in the use of AI in legal work is that of hallucinations. Several watchdog groups have been tracking cases in which court filings have contained AI hallucinations.

While the databases show that many such instances involve pro se litigants, or non-attorneys representing themselves, hundreds of licensed attorneys have also been sanctioned, reprimanded or otherwise caught submitting filings containing AI hallucinations, according to one such database compiled by attorney and researcher Damien Charlotin. His database only tracks cases in which a court has explicitly found or implied that a party relied on hallucinated content.

Charlotin’s database includes three cases in which U.S. judges were found to have written orders or opinions containing AI hallucinations. Meanwhile, the New York Times recently reported that a district attorney in Northern California has been accused of filing briefs containing mistakes typical of AI, one of the first known cases involving suspicions of prosecutorial misuse of the technology.

So far in San Diego, there are two known cases involving court documents containing AI hallucinations.

On Oct. 2, a panel of judges from the California Court of Appeals’ 4th Appellate District sanctioned longtime San Diego criminal defense attorney George Siddell, finding that he violated the Rules of Professional Conduct. They ordered him to pay $1,500 as part of the sanction.

A member of the California State Bar since 1971, Siddell admitted to filing a motion in a client’s criminal appeal that contained a citation to a case that doesn’t exist, a fake quote from a real case and two citations to cases that did not address the issues for which they were cited, according to a published appellate opinion. Siddell declined to comment for this story.

The judges wrote that Siddell’s conduct, when compared to similar conduct by attorneys in civil matters, was “particularly disturbing because it involves the rights of a criminal defendant, who is entitled to due process … and representation by competent counsel.”

The next day, San Diego Superior Court Judge Carolyn Caietti ruled that two attorneys from Tyson & Mendes, a national firm headquartered in San Diego, had filed multiple documents containing AI hallucinations in the case defending the local company in the auto injury lawsuit.

A Tyson & Mendes partner wrote in a declaration prior to the ruling that he took responsibility for the mistakes, though he blamed the errors on a younger associate attorney who he said “neglected to confirm the accuracy of certain case citations.”

In her own declaration, the associate attorney took responsibility and wrote that she was fired from the firm “as a direct result of my actions and conduct in this case.”

In a statement provided by Tyson & Mendes, the firm said in part: “As the Court in this case noted, we accept responsibility for our obligation to present the highest quality work product to the Court. We affirm this responsibility, even and especially in the face of technological transformation.”

The firm also added a lengthy explanation about how it is endeavoring to be a leader in the use of AI in the legal industry.

“As the practice of law continues to evolve through new challenges, opportunities, and technologies, we must also continue to hold ourselves accountable through introspection and transparency,” the firm said in its statement. “Tyson & Mendes remains steadfast in our commitment to our clients, our industry, and our profession to leverage the transformative power of AI and new technologies with keen professional and ethical judgment, ongoing education, and agility.”

Caietti did not ultimately sanction either attorney, though her decision was based on procedural issues rather than their conduct.

“Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel,” Caietti wrote. “… All of this conduct is contrary to the rules of professional responsibility and is the type of conduct that erodes trust in the legal profession … This is hopefully an experience that will never be repeated by the attorneys involved in this matter, let alone others in the profession.”

Client confidentiality

Since AI learns from the data fed to it by its users, attorneys must also take care that confidential client information is not used to train AI models and that it does not inadvertently become public.

For patent attorneys such as McWhorter, those risks revolve around business interests and market competition. Other areas of the law — Cooper mentioned due process and evidentiary issues, as examples — could implicate constitutional rights and protections.

Cooper said that unless and until there are stronger regulations, it will be up to each attorney and law firm to understand the AI technology they use and mitigate any potential risks and harms.

‘Effectively and ethically’

Newer attorneys especially run the risk of becoming over-reliant on AI tools without first building a foundational knowledge of how to practice the law, Cooper said.

At California Western School of Law, the use of AI is a balancing act. The faculty is navigating how best to ensure that students don’t abuse AI technology in their coursework while also teaching them how practicing attorneys are using it.

“We’re trying to make sure that we prepare our students to be able to enter the workforce, enter the profession, and use it effectively and ethically,” said Liam Vavasour, vice dean for academic affairs.

Vavasour said students are not allowed to use ChatGPT or other generative AI tools for writing assignments unless given explicit permission to do so, and even then the use is typically limited to idea-generation or editing and must be disclosed.

Vavasour said that from his understanding, practicing attorneys and judges are using AI in a variety of ways, “so we’re trying to make sure that our students know how to use it effectively and some of the pitfalls to avoid.”

McWhorter supervises younger associates at his firm and believes fears about them being over-reliant on AI are overblown.

“Because the value of generative AI is not in legal strategy, (young attorneys) will develop the ability to provide legal strategy the same as anyone else,” McWhorter said.

Source link


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The post AI hallucinations discovered in 2 San Diego court cases appeared first on Attorney Legal Counsel.

The 14-page motion looked like any standard court filing in a civil lawsuit. Filed in April in San Diego Superior Court, attorneys defending a local company were making a routine request for a judge to authorize additional expert witnesses in a vehicle collision injury case.

But on the sixth page of the motion, the attorneys cited legal authority from a case that does not exist — it was hallucinated by artificial intelligence.

A San Diego judge wrote in October that she was “deeply troubled” by the conduct of the company’s civil defense attorneys. She found they had filed multiple documents containing AI hallucinations, including citations to non-existent cases, fake quotes from real cases and inaccurate citations to real but irrelevant legal authorities.

That is one of at least two known San Diego cases that are part of a troubling trend of attorneys abusing or misusing AI, especially generative AI, a powerful technology that can at times fabricate information with no basis in reality.

But even as legal watchdog groups have documented hundreds of AI hallucination cases in the U.S. and around the world, legal experts and attorneys say those cases are rare, arguing that AI is an important tool being put to good use throughout the legal profession, helping lawyers research case law, analyze evidence, draft contracts and complete any number of rote tasks.

“We can’t just ignore generative AI, we have to become experts in the use so that we can avoid issues … where hallucinated case law gets into final documents,” Bryan McWhorter, a patent attorney and partner at the firm Knobbe Martens, said in an interview. “But I think when leveraged correctly, generative AI is frankly a power tool. It’s going to allow me to produce higher-quality work product in less time and deliver that value to clients.”

McWhorter recently argued that AI cannot now and likely never will be able to replace human legal analysis. That’s a view shared by James Cooper, a professor at California Western School of Law in downtown San Diego and co-author of the book “A Short & Happy Guide to Artificial Intelligence for Lawyers.”

“It complements all our skill sets,” Cooper said. “(But) there still needs to be a human in the loop.”

Cooper said there will always be subtlety in fact-finding and questioning people “that robots don’t understand … AI tools can’t fully engage with the nuance of humankind.”

Even so, Cooper is concerned that the use of AI in the legal field may be advancing too rapidly, and he hopes attorneys and firms are implementing safeguards that lawmakers and regulators have not.

“We’re at a juncture now where the technology is far outpacing our ability to regulate it, both as a legal profession but also in the real world, in a non-legal context,” Cooper said. “… We don’t know yet where to put the guardrails.”

‘Risks are no different’

As the use of AI has exploded in recent years, legal organizations have grappled with what sort of guidelines and policies to put in place to ensure that attorneys who use the technology do so ethically and responsibly. That can look different for a patent lawyer such as McWhorter and attorneys who litigate criminal and civil cases before judges, though the basic principles are largely the same.

“Broadly speaking, (the) risks are no different than we’ve always had in the industry, which is we must produce work that is 100% accurate and maintains all of our ethical obligations regarding client confidentiality,” McWhorter said.

For courtroom litigators, a federal judge in New York helped set the standard for the use of the technology in June 2023 while presiding over a case in which attorneys filed documents containing AI hallucinations. He wrote that there is “nothing inherently improper about using a reliable artificial intelligence tool for assistance,” but also noted that existing rules required that attorneys ensure the accuracy of every filing.

That has been the theme of most court opinions and bar association guidelines issued since then.

“Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations — whether provided by generative AI or any other source — that the attorney responsible for submitting the pleading has not personally read and verified,” wrote a panel of judges from California’s Second Appellate District.

The judges said the September opinion was the first by a California court to address “the generation of fake legal authority by AI sources” and should double as a warning for all attorneys in the state.

The American Bar Association and California State Bar have issued similar guidelines that AI cannot replace the judgment of trained lawyers and that attorneys should not become overly reliant on the technology.

Cooper, McWhorter and organizations such as the ABA all agree that there is a long list of legitimate uses of AI technology in the law. Much of it is geared toward helping summarize and analyze large data sets, while other tools can help be a middle step in crafting writing.

“The best analogy is we are creating the bones of the strategy, generative AI is adding the first-pass flesh onto those bones and then we’re going back and sculpting it into the final creation,” McWhorter said. “It’s really an intermediary in the process; it’s neither a beginning nor an end.”

‘Erodes trust in the legal profession’

Thus far, the most obvious and visible risk that has emerged in the use of AI in legal work is that of hallucinations. Several watchdog groups have been tracking cases in which court filings have contained AI hallucinations.

While the databases show that many such instances involve pro se litigants, or non-attorneys representing themselves, hundreds of licensed attorneys have also been sanctioned, reprimanded or otherwise caught submitting filings containing AI hallucinations, according to one such database compiled by attorney and researcher Damien Charlotin. His database only tracks cases in which a court has explicitly found or implied that a party relied on hallucinated content.

Charlotin’s database includes three cases in which U.S. judges were found to have written orders or opinions containing AI hallucinations. Meanwhile, the New York Times recently reported that a district attorney in Northern California has been accused of filing briefs containing mistakes typical of AI, one of the first known cases involving suspicions of prosecutorial misuse of the technology.

So far in San Diego, there are two known cases involving court documents containing AI hallucinations.

On Oct. 2, a panel of judges from the California Court of Appeals’ 4th Appellate District sanctioned longtime San Diego criminal defense attorney George Siddell, finding that he violated the Rules of Professional Conduct. They ordered him to pay $1,500 as part of the sanction.

A member of the California State Bar since 1971, Siddell admitted to filing a motion in a client’s criminal appeal that contained a citation to a case that doesn’t exist, a fake quote from a real case and two citations to cases that did not address the issues for which they were cited, according to a published appellate opinion. Siddell declined to comment for this story.

The judges wrote that Siddell’s conduct, when compared to similar conduct by attorneys in civil matters, was “particularly disturbing because it involves the rights of a criminal defendant, who is entitled to due process … and representation by competent counsel.”

The next day, San Diego Superior Court Judge Carolyn Caietti ruled that two attorneys from Tyson & Mendes, a national firm headquartered in San Diego, had filed multiple documents containing AI hallucinations in the case defending the local company in the auto injury lawsuit.

A Tyson & Mendes partner wrote in a declaration prior to the ruling that he took responsibility for the mistakes, though he blamed the errors on a younger associate attorney who he said “neglected to confirm the accuracy of certain case citations.”

In her own declaration, the associate attorney took responsibility and wrote that she was fired from the firm “as a direct result of my actions and conduct in this case.”

In a statement provided by Tyson & Mendes, the firm said in part: “As the Court in this case noted, we accept responsibility for our obligation to present the highest quality work product to the Court. We affirm this responsibility, even and especially in the face of technological transformation.”

The firm also added a lengthy explanation about how it is endeavoring to be a leader in the use of AI in the legal industry.

“As the practice of law continues to evolve through new challenges, opportunities, and technologies, we must also continue to hold ourselves accountable through introspection and transparency,” the firm said in its statement. “Tyson & Mendes remains steadfast in our commitment to our clients, our industry, and our profession to leverage the transformative power of AI and new technologies with keen professional and ethical judgment, ongoing education, and agility.”

Caietti did not ultimately sanction either attorney, though her decision was based on procedural issues rather than their conduct.

“Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel,” Caietti wrote. “… All of this conduct is contrary to the rules of professional responsibility and is the type of conduct that erodes trust in the legal profession … This is hopefully an experience that will never be repeated by the attorneys involved in this matter, let alone others in the profession.”

Client confidentiality

Since AI learns from the data fed to it by its users, attorneys must also take care that confidential client information is not used to train AI models and that it does not inadvertently become public.

For patent attorneys such as McWhorter, those risks revolve around business interests and market competition. Other areas of the law — Cooper mentioned due process and evidentiary issues, as examples — could implicate constitutional rights and protections.

Cooper said that unless and until there are stronger regulations, it will be up to each attorney and law firm to understand the AI technology they use and mitigate any potential risks and harms.

‘Effectively and ethically’

Newer attorneys especially run the risk of becoming over-reliant on AI tools without first building a foundational knowledge of how to practice the law, Cooper said.

At California Western School of Law, the use of AI is a balancing act. The faculty is navigating how best to ensure that students don’t abuse AI technology in their coursework while also teaching them how practicing attorneys are using it.

“We’re trying to make sure that we prepare our students to be able to enter the workforce, enter the profession, and use it effectively and ethically,” said Liam Vavasour, vice dean for academic affairs.

Vavasour said students are not allowed to use ChatGPT or other generative AI tools for writing assignments unless given explicit permission to do so, and even then the use is typically limited to idea-generation or editing and must be disclosed.

Vavasour said that from his understanding, practicing attorneys and judges are using AI in a variety of ways, “so we’re trying to make sure that our students know how to use it effectively and some of the pitfalls to avoid.”

McWhorter supervises younger associates at his firm and believes fears about them being over-reliant on AI are overblown.

“Because the value of generative AI is not in legal strategy, (young attorneys) will develop the ability to provide legal strategy the same as anyone else,” McWhorter said.

Source link


Attorneys and law firms can elevate their online presence with professionally written content from SEO Content Writing Services monthly plan. Our team of experienced writers specializes in crafting blog posts, articles, and written content that accurately reflect the expertise and knowledge of our clients in the legal field. With a keen eye for detail and a thorough understanding of legal terminology, we provide high-quality writing that helps our clients stand out from their competition and engage with their target audience. Trust SEO Content Writing Services for one time article writing or monthly written content to handle all of your written content needs and showcase your law firm's expertise.
If you need written content, blog posts, or articles professionally written for your website, we can help. Go HERE to find out more.
or email us here: myseowritingservices@gmail.com
To find out more about our article writing or blog post services, fill out the form, thank you.

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The post AI hallucinations discovered in 2 San Diego court cases appeared first on Attorney Legal Counsel.

The 14-page motion looked like any standard court filing in a civil lawsuit. Filed in April in San Diego Superior Court, attorneys defending a local company were making a routine request for a judge to authorize additional expert witnesses in a vehicle collision injury case.

But on the sixth page of the motion, the attorneys cited legal authority from a case that does not exist — it was hallucinated by artificial intelligence.

A San Diego judge wrote in October that she was “deeply troubled” by the conduct of the company’s civil defense attorneys. She found they had filed multiple documents containing AI hallucinations, including citations to non-existent cases, fake quotes from real cases and inaccurate citations to real but irrelevant legal authorities.

That is one of at least two known San Diego cases that are part of a troubling trend of attorneys abusing or misusing AI, especially generative AI, a powerful technology that can at times fabricate information with no basis in reality.

But even as legal watchdog groups have documented hundreds of AI hallucination cases in the U.S. and around the world, legal experts and attorneys say those cases are rare, arguing that AI is an important tool being put to good use throughout the legal profession, helping lawyers research case law, analyze evidence, draft contracts and complete any number of rote tasks.

“We can’t just ignore generative AI, we have to become experts in the use so that we can avoid issues … where hallucinated case law gets into final documents,” Bryan McWhorter, a patent attorney and partner at the firm Knobbe Martens, said in an interview. “But I think when leveraged correctly, generative AI is frankly a power tool. It’s going to allow me to produce higher-quality work product in less time and deliver that value to clients.”

McWhorter recently argued that AI cannot now and likely never will be able to replace human legal analysis. That’s a view shared by James Cooper, a professor at California Western School of Law in downtown San Diego and co-author of the book “A Short & Happy Guide to Artificial Intelligence for Lawyers.”

“It complements all our skill sets,” Cooper said. “(But) there still needs to be a human in the loop.”

Cooper said there will always be subtlety in fact-finding and questioning people “that robots don’t understand … AI tools can’t fully engage with the nuance of humankind.”

Even so, Cooper is concerned that the use of AI in the legal field may be advancing too rapidly, and he hopes attorneys and firms are implementing safeguards that lawmakers and regulators have not.

“We’re at a juncture now where the technology is far outpacing our ability to regulate it, both as a legal profession but also in the real world, in a non-legal context,” Cooper said. “… We don’t know yet where to put the guardrails.”

‘Risks are no different’

As the use of AI has exploded in recent years, legal organizations have grappled with what sort of guidelines and policies to put in place to ensure that attorneys who use the technology do so ethically and responsibly. That can look different for a patent lawyer such as McWhorter and attorneys who litigate criminal and civil cases before judges, though the basic principles are largely the same.

“Broadly speaking, (the) risks are no different than we’ve always had in the industry, which is we must produce work that is 100% accurate and maintains all of our ethical obligations regarding client confidentiality,” McWhorter said.

For courtroom litigators, a federal judge in New York helped set the standard for the use of the technology in June 2023 while presiding over a case in which attorneys filed documents containing AI hallucinations. He wrote that there is “nothing inherently improper about using a reliable artificial intelligence tool for assistance,” but also noted that existing rules required that attorneys ensure the accuracy of every filing.

That has been the theme of most court opinions and bar association guidelines issued since then.

“Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations — whether provided by generative AI or any other source — that the attorney responsible for submitting the pleading has not personally read and verified,” wrote a panel of judges from California’s Second Appellate District.

The judges said the September opinion was the first by a California court to address “the generation of fake legal authority by AI sources” and should double as a warning for all attorneys in the state.

The American Bar Association and California State Bar have issued similar guidelines that AI cannot replace the judgment of trained lawyers and that attorneys should not become overly reliant on the technology.

Cooper, McWhorter and organizations such as the ABA all agree that there is a long list of legitimate uses of AI technology in the law. Much of it is geared toward helping summarize and analyze large data sets, while other tools can help be a middle step in crafting writing.

“The best analogy is we are creating the bones of the strategy, generative AI is adding the first-pass flesh onto those bones and then we’re going back and sculpting it into the final creation,” McWhorter said. “It’s really an intermediary in the process; it’s neither a beginning nor an end.”

‘Erodes trust in the legal profession’

Thus far, the most obvious and visible risk that has emerged in the use of AI in legal work is that of hallucinations. Several watchdog groups have been tracking cases in which court filings have contained AI hallucinations.

While the databases show that many such instances involve pro se litigants, or non-attorneys representing themselves, hundreds of licensed attorneys have also been sanctioned, reprimanded or otherwise caught submitting filings containing AI hallucinations, according to one such database compiled by attorney and researcher Damien Charlotin. His database only tracks cases in which a court has explicitly found or implied that a party relied on hallucinated content.

Charlotin’s database includes three cases in which U.S. judges were found to have written orders or opinions containing AI hallucinations. Meanwhile, the New York Times recently reported that a district attorney in Northern California has been accused of filing briefs containing mistakes typical of AI, one of the first known cases involving suspicions of prosecutorial misuse of the technology.

So far in San Diego, there are two known cases involving court documents containing AI hallucinations.

On Oct. 2, a panel of judges from the California Court of Appeals’ 4th Appellate District sanctioned longtime San Diego criminal defense attorney George Siddell, finding that he violated the Rules of Professional Conduct. They ordered him to pay $1,500 as part of the sanction.

A member of the California State Bar since 1971, Siddell admitted to filing a motion in a client’s criminal appeal that contained a citation to a case that doesn’t exist, a fake quote from a real case and two citations to cases that did not address the issues for which they were cited, according to a published appellate opinion. Siddell declined to comment for this story.

The judges wrote that Siddell’s conduct, when compared to similar conduct by attorneys in civil matters, was “particularly disturbing because it involves the rights of a criminal defendant, who is entitled to due process … and representation by competent counsel.”

The next day, San Diego Superior Court Judge Carolyn Caietti ruled that two attorneys from Tyson & Mendes, a national firm headquartered in San Diego, had filed multiple documents containing AI hallucinations in the case defending the local company in the auto injury lawsuit.

A Tyson & Mendes partner wrote in a declaration prior to the ruling that he took responsibility for the mistakes, though he blamed the errors on a younger associate attorney who he said “neglected to confirm the accuracy of certain case citations.”

In her own declaration, the associate attorney took responsibility and wrote that she was fired from the firm “as a direct result of my actions and conduct in this case.”

In a statement provided by Tyson & Mendes, the firm said in part: “As the Court in this case noted, we accept responsibility for our obligation to present the highest quality work product to the Court. We affirm this responsibility, even and especially in the face of technological transformation.”

The firm also added a lengthy explanation about how it is endeavoring to be a leader in the use of AI in the legal industry.

“As the practice of law continues to evolve through new challenges, opportunities, and technologies, we must also continue to hold ourselves accountable through introspection and transparency,” the firm said in its statement. “Tyson & Mendes remains steadfast in our commitment to our clients, our industry, and our profession to leverage the transformative power of AI and new technologies with keen professional and ethical judgment, ongoing education, and agility.”

Caietti did not ultimately sanction either attorney, though her decision was based on procedural issues rather than their conduct.

“Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel,” Caietti wrote. “… All of this conduct is contrary to the rules of professional responsibility and is the type of conduct that erodes trust in the legal profession … This is hopefully an experience that will never be repeated by the attorneys involved in this matter, let alone others in the profession.”

Client confidentiality

Since AI learns from the data fed to it by its users, attorneys must also take care that confidential client information is not used to train AI models and that it does not inadvertently become public.

For patent attorneys such as McWhorter, those risks revolve around business interests and market competition. Other areas of the law — Cooper mentioned due process and evidentiary issues, as examples — could implicate constitutional rights and protections.

Cooper said that unless and until there are stronger regulations, it will be up to each attorney and law firm to understand the AI technology they use and mitigate any potential risks and harms.

‘Effectively and ethically’

Newer attorneys especially run the risk of becoming over-reliant on AI tools without first building a foundational knowledge of how to practice the law, Cooper said.

At California Western School of Law, the use of AI is a balancing act. The faculty is navigating how best to ensure that students don’t abuse AI technology in their coursework while also teaching them how practicing attorneys are using it.

“We’re trying to make sure that we prepare our students to be able to enter the workforce, enter the profession, and use it effectively and ethically,” said Liam Vavasour, vice dean for academic affairs.

Vavasour said students are not allowed to use ChatGPT or other generative AI tools for writing assignments unless given explicit permission to do so, and even then the use is typically limited to idea-generation or editing and must be disclosed.

Vavasour said that from his understanding, practicing attorneys and judges are using AI in a variety of ways, “so we’re trying to make sure that our students know how to use it effectively and some of the pitfalls to avoid.”

McWhorter supervises younger associates at his firm and believes fears about them being over-reliant on AI are overblown.

“Because the value of generative AI is not in legal strategy, (young attorneys) will develop the ability to provide legal strategy the same as anyone else,” McWhorter said.

Source link


Attorneys and law firms can elevate their online presence with professionally written content from SEO Content Writing Services monthly plan. Our team of experienced writers specializes in crafting blog posts, articles, and written content that accurately reflect the expertise and knowledge of our clients in the legal field. With a keen eye for detail and a thorough understanding of legal terminology, we provide high-quality writing that helps our clients stand out from their competition and engage with their target audience. Trust SEO Content Writing Services for one time article writing or monthly written content to handle all of your written content needs and showcase your law firm's expertise.
If you need written content, blog posts, or articles professionally written for your website, we can help. Go HERE to find out more.
or email us here: myseowritingservices@gmail.com
To find out more about our article writing or blog post services, fill out the form, thank you.

Name *

First

Last

Business Name

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What type of articles are you intertested in?

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The post AI hallucinations discovered in 2 San Diego court cases appeared first on Attorney Legal Counsel.

The 14-page motion looked like any standard court filing in a civil lawsuit. Filed in April in San Diego Superior Court, attorneys defending a local company were making a routine request for a judge to authorize additional expert witnesses in a vehicle collision injury case.

But on the sixth page of the motion, the attorneys cited legal authority from a case that does not exist — it was hallucinated by artificial intelligence.

A San Diego judge wrote in October that she was “deeply troubled” by the conduct of the company’s civil defense attorneys. She found they had filed multiple documents containing AI hallucinations, including citations to non-existent cases, fake quotes from real cases and inaccurate citations to real but irrelevant legal authorities.

That is one of at least two known San Diego cases that are part of a troubling trend of attorneys abusing or misusing AI, especially generative AI, a powerful technology that can at times fabricate information with no basis in reality.

But even as legal watchdog groups have documented hundreds of AI hallucination cases in the U.S. and around the world, legal experts and attorneys say those cases are rare, arguing that AI is an important tool being put to good use throughout the legal profession, helping lawyers research case law, analyze evidence, draft contracts and complete any number of rote tasks.

“We can’t just ignore generative AI, we have to become experts in the use so that we can avoid issues … where hallucinated case law gets into final documents,” Bryan McWhorter, a patent attorney and partner at the firm Knobbe Martens, said in an interview. “But I think when leveraged correctly, generative AI is frankly a power tool. It’s going to allow me to produce higher-quality work product in less time and deliver that value to clients.”

McWhorter recently argued that AI cannot now and likely never will be able to replace human legal analysis. That’s a view shared by James Cooper, a professor at California Western School of Law in downtown San Diego and co-author of the book “A Short & Happy Guide to Artificial Intelligence for Lawyers.”

“It complements all our skill sets,” Cooper said. “(But) there still needs to be a human in the loop.”

Cooper said there will always be subtlety in fact-finding and questioning people “that robots don’t understand … AI tools can’t fully engage with the nuance of humankind.”

Even so, Cooper is concerned that the use of AI in the legal field may be advancing too rapidly, and he hopes attorneys and firms are implementing safeguards that lawmakers and regulators have not.

“We’re at a juncture now where the technology is far outpacing our ability to regulate it, both as a legal profession but also in the real world, in a non-legal context,” Cooper said. “… We don’t know yet where to put the guardrails.”

‘Risks are no different’

As the use of AI has exploded in recent years, legal organizations have grappled with what sort of guidelines and policies to put in place to ensure that attorneys who use the technology do so ethically and responsibly. That can look different for a patent lawyer such as McWhorter and attorneys who litigate criminal and civil cases before judges, though the basic principles are largely the same.

“Broadly speaking, (the) risks are no different than we’ve always had in the industry, which is we must produce work that is 100% accurate and maintains all of our ethical obligations regarding client confidentiality,” McWhorter said.

For courtroom litigators, a federal judge in New York helped set the standard for the use of the technology in June 2023 while presiding over a case in which attorneys filed documents containing AI hallucinations. He wrote that there is “nothing inherently improper about using a reliable artificial intelligence tool for assistance,” but also noted that existing rules required that attorneys ensure the accuracy of every filing.

That has been the theme of most court opinions and bar association guidelines issued since then.

“Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations — whether provided by generative AI or any other source — that the attorney responsible for submitting the pleading has not personally read and verified,” wrote a panel of judges from California’s Second Appellate District.

The judges said the September opinion was the first by a California court to address “the generation of fake legal authority by AI sources” and should double as a warning for all attorneys in the state.

The American Bar Association and California State Bar have issued similar guidelines that AI cannot replace the judgment of trained lawyers and that attorneys should not become overly reliant on the technology.

Cooper, McWhorter and organizations such as the ABA all agree that there is a long list of legitimate uses of AI technology in the law. Much of it is geared toward helping summarize and analyze large data sets, while other tools can help be a middle step in crafting writing.

“The best analogy is we are creating the bones of the strategy, generative AI is adding the first-pass flesh onto those bones and then we’re going back and sculpting it into the final creation,” McWhorter said. “It’s really an intermediary in the process; it’s neither a beginning nor an end.”

‘Erodes trust in the legal profession’

Thus far, the most obvious and visible risk that has emerged in the use of AI in legal work is that of hallucinations. Several watchdog groups have been tracking cases in which court filings have contained AI hallucinations.

While the databases show that many such instances involve pro se litigants, or non-attorneys representing themselves, hundreds of licensed attorneys have also been sanctioned, reprimanded or otherwise caught submitting filings containing AI hallucinations, according to one such database compiled by attorney and researcher Damien Charlotin. His database only tracks cases in which a court has explicitly found or implied that a party relied on hallucinated content.

Charlotin’s database includes three cases in which U.S. judges were found to have written orders or opinions containing AI hallucinations. Meanwhile, the New York Times recently reported that a district attorney in Northern California has been accused of filing briefs containing mistakes typical of AI, one of the first known cases involving suspicions of prosecutorial misuse of the technology.

So far in San Diego, there are two known cases involving court documents containing AI hallucinations.

On Oct. 2, a panel of judges from the California Court of Appeals’ 4th Appellate District sanctioned longtime San Diego criminal defense attorney George Siddell, finding that he violated the Rules of Professional Conduct. They ordered him to pay $1,500 as part of the sanction.

A member of the California State Bar since 1971, Siddell admitted to filing a motion in a client’s criminal appeal that contained a citation to a case that doesn’t exist, a fake quote from a real case and two citations to cases that did not address the issues for which they were cited, according to a published appellate opinion. Siddell declined to comment for this story.

The judges wrote that Siddell’s conduct, when compared to similar conduct by attorneys in civil matters, was “particularly disturbing because it involves the rights of a criminal defendant, who is entitled to due process … and representation by competent counsel.”

The next day, San Diego Superior Court Judge Carolyn Caietti ruled that two attorneys from Tyson & Mendes, a national firm headquartered in San Diego, had filed multiple documents containing AI hallucinations in the case defending the local company in the auto injury lawsuit.

A Tyson & Mendes partner wrote in a declaration prior to the ruling that he took responsibility for the mistakes, though he blamed the errors on a younger associate attorney who he said “neglected to confirm the accuracy of certain case citations.”

In her own declaration, the associate attorney took responsibility and wrote that she was fired from the firm “as a direct result of my actions and conduct in this case.”

In a statement provided by Tyson & Mendes, the firm said in part: “As the Court in this case noted, we accept responsibility for our obligation to present the highest quality work product to the Court. We affirm this responsibility, even and especially in the face of technological transformation.”

The firm also added a lengthy explanation about how it is endeavoring to be a leader in the use of AI in the legal industry.

“As the practice of law continues to evolve through new challenges, opportunities, and technologies, we must also continue to hold ourselves accountable through introspection and transparency,” the firm said in its statement. “Tyson & Mendes remains steadfast in our commitment to our clients, our industry, and our profession to leverage the transformative power of AI and new technologies with keen professional and ethical judgment, ongoing education, and agility.”

Caietti did not ultimately sanction either attorney, though her decision was based on procedural issues rather than their conduct.

“Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel,” Caietti wrote. “… All of this conduct is contrary to the rules of professional responsibility and is the type of conduct that erodes trust in the legal profession … This is hopefully an experience that will never be repeated by the attorneys involved in this matter, let alone others in the profession.”

Client confidentiality

Since AI learns from the data fed to it by its users, attorneys must also take care that confidential client information is not used to train AI models and that it does not inadvertently become public.

For patent attorneys such as McWhorter, those risks revolve around business interests and market competition. Other areas of the law — Cooper mentioned due process and evidentiary issues, as examples — could implicate constitutional rights and protections.

Cooper said that unless and until there are stronger regulations, it will be up to each attorney and law firm to understand the AI technology they use and mitigate any potential risks and harms.

‘Effectively and ethically’

Newer attorneys especially run the risk of becoming over-reliant on AI tools without first building a foundational knowledge of how to practice the law, Cooper said.

At California Western School of Law, the use of AI is a balancing act. The faculty is navigating how best to ensure that students don’t abuse AI technology in their coursework while also teaching them how practicing attorneys are using it.

“We’re trying to make sure that we prepare our students to be able to enter the workforce, enter the profession, and use it effectively and ethically,” said Liam Vavasour, vice dean for academic affairs.

Vavasour said students are not allowed to use ChatGPT or other generative AI tools for writing assignments unless given explicit permission to do so, and even then the use is typically limited to idea-generation or editing and must be disclosed.

Vavasour said that from his understanding, practicing attorneys and judges are using AI in a variety of ways, “so we’re trying to make sure that our students know how to use it effectively and some of the pitfalls to avoid.”

McWhorter supervises younger associates at his firm and believes fears about them being over-reliant on AI are overblown.

“Because the value of generative AI is not in legal strategy, (young attorneys) will develop the ability to provide legal strategy the same as anyone else,” McWhorter said.

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The Hearing Panel Subcommittee (HPS) of the state Lawyer Disciplinary Board held a evidentiary hearing Thursday to consider disciplinary recommendations for former Pleasants County Prosecuting attorney Brian Carr, his former assistant prosecutor Paul Marteney, and others involved with the now-defunct Slow Down for the Holidays program. (Photo by Steven Allen Adams)

CHARLESTON — After years of delays, former Pleasants County Prosecuting attorney Brian Carr, his former assistant prosecutor Paul Marteney, and several defense attorneys involved in the Slow Down for the Holidays program received a hearing regarding their disciplinary charges.

The Hearing Panel Subcommittee (HPS) of the state Lawyer Disciplinary Board held an evidentiary hearing Thursday at the West Virginia Judicial Tower in Charleston’s Kanawha City for Carr, Marteney, and trial lawyers Harley Wagner, Justin Raber, Jay Gerber Jr., Andre Richardson and Jordan West.

The cases against the seven attorneys were consolidated into one to simplify discovery requests. In a separate case, attorney Wells Dillon was admonished by the HPS and ordered to pay proceeding costs and undergo additional continuing education courses in ethics.

Both Carr and Marteney were charged in 2021 by the Investigative Panel of the Lawyer Disciplinary Board with multiple violations of the Rules of Professional Conduct for participating in the St. Marys Police Department’s Slow Down for the Holidays program. Carr alone was accused of 178 violations in 21 separate counts.

Beginning in 2008 when Carr was a municipal judge, the now-defunct Slow Down program would dismiss minor traffic infractions in the months prior to Christmas each year in exchange for donations of $50 gift cards or the equivalent of $50 in toys.

The Pleasants County Magistrate Court and the Pleasants County Sheriff’s Department became involved in the program in 2018 after Carr took office as prosecuting attorney, when he and Marteney began to dismiss certain misdemeanor charges, such as driving under the influence, in exchange for the donation of gift cards and sometimes cash to the Slow Down program.

State investigators said Carr and Marteney’s selection of only a few misdemeanor cases in exchange for monetary donations constituted a “bribe.” In her opening statement Thursday, Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel for the state Office of Disciplinary Counsel, likened the scheme to a “holiday-themed banana republic.”

“This program likely impacted the Christmas story of many families in Pleasants County, (but) the undisputed facts state that Carr and Marteney hand-selected cases and offered to dismiss these cases for money to a program that operated without oversight,’ Cipoletti said.

Cipoletti argued there is no state law that allowed Carr and Marteney to circumvent the judiciary and State Code to create a secondary system of justice.

“As much as we try to dress this up with mistletoe…our system prohibits accepting cash for the dismissal of case,” Cipoletti said.

The cases against Carr and Marteney were paused in 2022 due to a federal investigation by the U.S. attorney’s Office for the North District of West Virginia, though Carr’s attorney, Mike Benninger, confirmed Thursday that the investigation is closed. Marteney’s law license remains under suspension from a separate ODC case.

During his opening statement Thursday, Benninger argued that the Slow Down program was legally created by the St. Marys City Council and managed by the St. Marys Police Department with no direct involvement from Carr and Marteney. Benninger said that Carr had prosecutorial discretion to make deals with defendants in allowing them to participate in the Slow Down program.

“Banana republic? No, no, no,” Benninger said. “Brian Carr is no briber, no dishonest or distrustful person…This is a good community man. He was an extraordinarily respected prosecuting attorney.

“This program, through its governing body under the constitutional rights it had…chose without limitation to allow the police…to use their discretion to charge by citation,” Benninger continued. “Nobody was forced. Nobody complained. At all times, Carr acted in good faith. Carr did not personally benefit. He got no dime.”

The ODC began issuing charges against defense attorneys who accepted the Slow Down deals from Carr and Marteney at the end of 2022. The attorneys are accused of violating the Rules of Professional Conduct that govern the behavior of lawyers in the state. The ODC investigates attorneys, while the JIC investigates justices, judges and magistrates.

Cipoletti argued that the defense attorneys should have known better than to accept these deals with Carr and Marteney. However, Benninger argued that the defense attorneys were under legal obligation to present their clients with all options.

“These lawyers should have recognized the disposition of these cases,” Cipoletti said. “How much would it cost to dismiss a misdemeanor for battery? It’s a slippery slope when attorneys abandon the law.”

“These lawyers had the right to rely on Carr. It is our position that these lawyers did nothing wrong,” Benninger said.

At issue in the case is whether the Slow Down program was unlawful. Misdemeanor charges dismissed in Pleasants County Magistrate Court by Carr and Marteney included people passing stopped school buses, speeding, littering, possession of alcohol by minors and multiple offenses for driving under the influence.

“It is my client’s position that when Mr. Carr and Mr. Marteney made offers to these respondent’s clients…they had an obligation…to communicate timely, completely, and effectively those offers to their clients,” Benninger said. “Had they not done so, they would have been negligent. It was Mr. Carr’s expectation that they would communicate those offers to their clients.”

“We would stipulate they have an obligation to make legal offers to their clients,” Cipoletti said. “It is our position that those offers were not legal.”

“It appears all of these alleged violations occurred because there is a claim that this program is illegal,” said HPS Chairman William Munday. “If this program is legal, then everything goes away, doesn’t it?”

“If the program is determined to be legal, which it is not,” Cipoletti said.

“At some point, we’re going to have to rule on that,” Munday responded.

Former Pleasants County magistrates Randy Nutter and Lisa Taylor received public admonishments from the West Virginia Judicial Investigation Commission in 2021 after cooperating with an investigation into their participation in the Slow Down for the Holidays program. Both former magistrates agreed to resign and never seek public office again for any judicial positions.

Former St. Marys Police Department Clerk Carolyn Taylor pleaded guilty to perjury in 2022 for lying to federal investigators about taking gift cards from the Slow Down program for personal use.

The HPS will make a recommendation to the West Virginia Supreme Court of Appeals as to whether Carr, Marteney, and the defense attorneys will face disciplinary action or whether the ethics charges should be dismissed. At least two defense attorneys – Gerber and Wagner – only face one disciplinary charge. Wagner’s attorney, Robert Fitzsimmons, urged the HPS to consider the records of the defense attorneys when deciding on recommendations.

“As an attorney, the most important thing you have is a reputation,” Fitzsimmons said. “When you put that black mark on the record, it never goes away.”

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EAST PALESTINE — While those impacted by last year’s Norfolk Southern train derailment are forced to wait for the appeals process to play out before receiving compensation from the $600 million settlement between the railroad and class action plaintiffs, it seems the lawyers who brokered the deal do not.

According to case documents filed in Youngstown’s U.S. District Court — a motion by firm Morgan & Morgan to pause the payment of legal fees during the appeal and an order from Judge Pearson denying that motion — the distribution of the attorneys’ $180 million chunk of the settlement is not impacted by appeals. T. Michael Morgan filed the injunction motion on Oct. 28 with Pearson ruling against it on Nov. 18.

In other words, while the residents could wait years to see any direct payments, the lawyers have likely already been paid.

“It has come to the attention of attorney Morgan that class counsel intend to make payments to attorneys (and indeed may have already done so), despite the appeal that is staying direct payments to clients,” Morgan’s motion argued. “This court should preserve the status quo and direct that counsel refrain from distributing fees before all appeals are resolved.”

Morgan’s motion also called into question the distribution of the legal fees — how much each firm would receive and who would decide such matters.

In her order denying the motion, Pearson referred to Section XIV of the settlement agreement which was submitted for preliminary approval on April 26. That section states that the legal fees or “Fee Award” were to be paid within 14 days of final approval by wiring the sum from the settlement fund into the escrow account. It also states that allocation of the $180 million was to be decided by class co-lead counsel — Seth A. Katz, M. Elizabeth Graham, and Jayne Conroy — and co-counsel would then distribute the determined amount to the 39 other firms that are entitled to a slice of the settlement pie. Morgan didn’t raise an objection to that plan at the time.

On the contrary, Pearson noted, he endorsed it, writing in her Nov. 18 ruling that “Clearly, the distribution method for the Fee Award is set forth in the Class Action Settlement Agreement, which was signed by attorney Morgan.”

Pearson also pushed back on Morgan’s claim that he was unaware the attorneys would be paid before residents. While Morgan wrote that had he known, he would have “objected to paying the attorneys while the process for paying class members remain stayed on appeal,” Pearson countered that Morgan was aware of that provision as the term “quick pay” was used in the settlement agreement. A quick-pay provision is a legal agreement that allows class counsel to receive payment for attorney fees and expenses immediately after a final settlement is approved.

In explaining her ruling, Pearson also shed light on just how quickly those calculations were made. According to the document, Morgan received an email on Oct. 7 — less than two weeks after final approval — from lead counsel stating that allocations had been finalized and requesting wire instructions to send Morgan & Morgan its portion of the legal fees.

Meanwhile, the majority of the class members who opted into the personal-injury component — open to those who lived or worked within 10 miles of the derailment and unlike the direct payments are not subject to appeals — are still waiting. Determination letters from Kroll Settlement Administration (the firm processing the claims) have been trickling out to residents. The letters provide the exact amount of the personal injury award (which could be as much as $25,000) that each class member will receive as well as instructions to set up direct-deposit to receive the funds.

Those payments, according to the settlement agreement, were supposed to begin with 30 days of final approval, but so far that process has been painfully slow. It’s been over two months since approval was granted and few residents have reported receiving letters with even fewer reporting that payment has been received.

The Morning Journal reached out to PR Rebuttal, the public relation firm handling media relations for plaintiff counsel last week, for a clarification as to when legal fees were paid as well answers to questions concerning the personal payment process. While those questions were ” forwarded to class counsel,” no response has been received.

A Facebook page set up by residents to share settlement updates reported that 5,000 letters were set to be mailed next week. The post cited a plaintiff attorney as the source of the report, though other posters provided conflicting information that was also attributed to class counsel in what appears to be a pattern of more questions than answers.

The status of the appeal as well as appeal procedure have also been fodder for online speculation.

Over 55,000 claims were made against the settlement, but five class members appealed the final approval ruling, bringing direct payments — which max out at $70,000 per household and are meant to compensate for property damage — to a halt.

In Ohio, an appeal can take several months to a year to be decided, potentially longer if the appellate court’s decision is appealed to the state Supreme Court.

Pearson is currently considering a motion to require the appellants — Zsuzsa Troyan, Tamara Freeze, Sharon Lynch, Carly Tunno and Joseph Sheely — to post an appeal bond of $850,000 as a financial guarantee to cover court costs if the appeal is lost. The bond also ensures that the defendant is not filing a frivolous appeal as the bond is forfeited if the appeal is lost.

If Pearson rules in favor of such a bond and it is not paid, the appeal will not automatically be dead in the water but stay the execution of the judgment could be, meaning direct payments could be disbursed while the appeal is pending. If payments are made and the appeal is won, the burden to recover money paid falls on the appellants. Failing to pay the bond if ordered could also result in complete dismissal of the appeal.

As for the attorney fees already paid out, if the settlement is modified or reversed on appeal, Section XI of the settlement agreement requires class counsel to return to Norfolk Southern within 14 days any and all attorneys’ fees along interest.

selverd@mojonews.com

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The Alpena Township Board of Trustees is seen in this file photo from 2022.

ALPENA — Alpena Township’s labor attorneys recommended to the Alpena Township Board of Trustees that likely incoming township supervisor Abbi Kaszubowski abstain from matters involving the township Fire Department.

The lawyers also recommended Kaszubowski not directly oversee the township fire chief and that the board should find a substitute for the personnel officer position normally held by the supervisor.

Bev Banks, who is running for a township trustee seat on Election Day, should also abstain from some Fire Department business, the attorneys said.

Kaszubowski’s and Banks’ husbands work full-time for the Fire Department. Kaszubowski’s husband is president of the township firefighters union.

Neither of the men’s jobs will be impacted.

The township board did not take any action on the recommendations during its meeting on Monday.

Kaszubowski and Banks both publicly affirmed they would abstain from votes concerning the Fire Department upon taking office, but, for Kaszubowski, the conflict would likely forbid her from playing any active role in Fire Department matters.

The attorneys who drafted the recommendation suggested that neither woman be placed on the board’s Personnel Committee, on which the supervisor and other trustees usually have a seat.

In a presentation to the township Board of Trustees on Monday, attorneys from the firm Fahey, Schultz, Burzych, Rhodes, of Okemos, outlined the potential conflicts of interest Kaszubowski and Banks would face and the courses of action needed to address them.

“Without question, the election of Kaszubowski and potential election of Banks raise concerns about conflicts of interest, and perhaps just as importantly, raise questions about the appearance of impropriety if either were to take part in decision making that impacted their respective spouses,” the attorneys’ report to the township board says. “To be clear, we do not assume that Kaszubowski or Banks would attempt to use a board seat to further their own personal interests. Instead, we routinely advise our clients that the risk to public trust of even the appearance of a conflict is just as damaging to the board’s ability to effectively manage and govern the township as an actual conflict under state law.”

Kaszubowski’s husband working for the Fire Department may impact the extent to which she can oversee Fire Department operations.

Because of her relationship, the labor attorneys said, she should not have the ability to work directly with or receive reports from the fire chief.

“The supervisor has historically supervised the fire chief, which puts the supervisor squarely within the fire department’s chain of command,” the attorneys’ recommendation says. “The fire chief is likely to bring employee performance, disciplinary issues, and other items impacting the firefighters to the attention of the supervisor. A fire chief placed between a township supervisor and a relative of the supervisor is in a no-win situation. Their own independence and judgment will be strained in any such situation. For those reasons, we recommend that the incoming supervisor not directly supervise the fire chief, or at least not do so exclusively.”

The attorneys said state law about nepotism is murky, but the township’s policy is clear, binding, and more aggressive than the state’s.

Township policy 5.9 allows the township to employ family members but prohibits relatives from being in a direct reporting, supervisory, or management relationship.

Further, no employee is permitted to work within the chain of command or supervision of a relative such that one relative’s work responsibilities, salary, discipline, or career progress could be influenced by the other relative.

The attorneys’ report also says information regarding the Fire Department, which is often vital to a supervisor and trustee, should not be shared with Kaszubowski and Banks.

“We similarly recommend that Ms. Kaszubowski and Banks are not exposed to confidential or strategic information relating to fire Department personnel or collective bargaining matters,” the report says. “This would put these individuals in yet another difficult, if not impossible position of balancing their home lives and their fiduciary responsibilities to the Township. Specifically, we recommend that both be asked to step out of any closed session that the board enters into for the purposes of developing strategy for labor negotiations with the fire department or considering a confidential written legal opinion concerning fire department labor matters.”

If Kaszubowski and Banks do ask to recuse themselves from a vote, it is up to the remaining trustees to vote unanimously to allow them to do so. There could be times when the other trustees believe an issue is not suitable to force their recusal.

Still, the labor attorneys said, the relationships and chain of command issues are serious and they should be addressed.

“The presumptive election of Ms. Kaszubowski and the possible election of Ms. Banks raise potential ethical concerns given that their respective spouses serve as full-time firefighters on the township’s fire department,” the attorneys’ report says. “Although the bar for a conflict of interest under state law is high, the law, township policy, and good governance require that elected officials remain above even the appearance of impropriety. We therefore recommend that, if elected, Ms. Kaszubowski and Ms. Banks abstain from matters involving fire department personnel and that Ms. Kaszubowski not act as the township’s personnel officer.”

In August, Kaszubowski defeated incumbent township Supervisor Nathan Skibbe. She received 64% of the vote, compared to Skibbe’s 36%.

Kaszubowski is unopposed next week and is expected to take her oath of office in late November.

Banks, who is running as an independent, is one of five candidates battling for four trustee seats on Election Day. She faces incumbents Norm Poli, Cash Kroll, Steve Lappan, and Russ Rhynard, all Republicans.

Election Day happens Tuesday, but many voters have already cast ballots either absentee or early in person.

Steve Schulwitz can be reached at 989-358-5689 or sschulwitz@thealpenanews.com. Follow him on X @ss_alpenanews.com.

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WARREN — Trumbull County Commissioner Niki Frenchko is fighting an appeal from several county officials, arguing in court documents that her July 2022 arrest during a board meeting was a politically motivated act of retaliation.

In a case now before the U.S. Court of Appeals for the Sixth Circuit, Frenchko’s legal team contends that she was unlawfully arrested for criticizing Trumbull County Sheriff Paul Monroe and that her First Amendment rights were violated.

The brief, filed by attorneys Matt Miller-Novak and David J. Betras, on behalf of Frenchko, argues that her arrest lacked probable cause and was orchestrated by political opponents seeking to silence her outspoken criticism of county leadership.

The case has drawn attention to claims of misconduct and chaos in Trumbull County government meetings, where tensions between Frenchko and fellow commissioners often boiled over.

The lawsuit stems from a July 7, 2022, board meeting, during which Frenchko criticized Monroe’s handling of inmate care at the county jail.

According to court documents, Frenchko read an email from the mother of an inmate alleging medical neglect. Monroe, who was not present, demanded a public apology from Frenchko in response to her claims.

When Frenchko refused to back down, fellow commissioners Frank Fuda, who is no longer in office, and Mauro Cantalamessa accused her of disrupting the meeting. She was subsequently removed and arrested by deputies from Monroe’s office. Frenchko maintains that her removal was unprovoked and she was treated differently than others who had caused similar disruptions during meetings.

“Governments may not arrest their political opponents for their critical speech,” Frenchko’s attorneys wrote in their brief, pointing to the U.S. Supreme Court’s recent ruling in Gonzalez v. Trevino.

The ruling prohibits arresting individuals for actions that are typically overlooked or unpunished in similar cases, which Frenchko’s lawyers argue applies to her arrest.

The lawsuit also alleges that Fuda and Cantalamessa, both Democrats, conspired with Monroe to target Frenchko, a Republican and the first woman to serve as a Trumbull County commissioner in three decades.

According to testimony cited in the brief, Monroe was in communication with deputies before and after the arrest, furthering claims that the incident was coordinated.

Frenchko’s legal team also has accused the defendants of destroying crucial evidence, including text messages exchanged between Monroe, commissioners, and county employees. These messages were reportedly deleted despite a court preservation order, raising concerns of a cover-up.

The defendants, however, have argued that Frenchko was disruptive during the meeting and that her arrest was lawful. They claim immunity under state and federal law, citing a previous court decision that public officials may remove disruptive individuals from meetings.

The Sixth Circuit will weigh whether the arrest violated Frenchko’s constitutional rights and if the defendants are entitled to immunity. Oral arguments are expected to focus heavily on the recent Gonzalez v. Trevino decision, which Frenchko’s attorneys argue is critical to the case.

Frenchko’s arrest and ongoing legal battle have continued to deepen the political divisions in Trumbull County, where she has long been a vocal critic of the county’s leadership. Her lawyers contend that her arrest was a clear attempt to stifle dissent and silence a political adversary.

The Sixth Circuit’s ruling could have significant implications for the balance of power in local government, as well as the rights of public officials to speak freely without fear of retribution, an email from her attorneys states.

Cases closed in Trumbull County Sept. 9-13:

CLOSED

BOYLE, LEAH R. vs. BOYLE JR., DAVID

MARTIN, SARA JANE …

WARREN — Trumbull County Commissioner Niki Frenchko is fighting an appeal from several county officials, arguing …

WARREN — Trumbull County commissioners may now be looking at a possible third option to move the county coroner / …

Staff report

WARREN — A Trumbull County inmate convicted in the 1987 stabbing death of a Warren resident has …

CORTLAND — The city is seeking passage of a 2.5-mill continuous police levy in the November general election to …

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FACING SCRUTINY — West Virginia attorney General Patrick Morrisey gives an update in June on the status of settlement funds from opioid cases. West Virginia Citizens Against Lawsuit Abuse is challenging Morrisey over his office’s use of outside attorneys.

CHARLESTON — A feud between West Virginia’s top attorney and an anti-lawsuit abuse group continues to play out following the awarding of millions of dollars in outside attorney fees for major cases.

In a report set to be released in the coming days, West Virginia Citizens Against Lawsuit Abuse alleges that state attorney General Patrick Morrisey and his office’s use of outside legal counsel on civil cases resulted in those attorneys receiving approximately $55 million from contingency fees from settlements since 2013.

But Morrisey points to reductions in the percentages of recoveries paid to outside attorneys since taking office a decade ago, from a peak of 40% for one case filed by former Democratic attorney General Darrell McGraw to as low as 7% for Morrisey’s lawsuit against Johnson & Johnson, ensuring more settlement dollars are kept by taxpayers.

The feud between WV CALA and Morrisey began after the awarding of approximately $141 million outside counsel could receive following a class action settlement between the attorney General’s Office, cities and counties with eight opioid manufacturers, distributors and pharmacies following approval in October by the state’s Mass Litigation Panel. Of that $141 million, outside attorneys for the attorney General’s Office are set to receive $41 million alone.

Greg Thomas, executive director of WV CALA, said in a statement that these outside counsel contingency fees far exceed the fees outside attorneys received for cases brought by McGraw, who served from 1993 to the end of 2012 after being defeated by Morrisey.

“West Virginia Citizens Against Lawsuit Abuse highlighted the abuses of Darrell McGraw and his outside counsel hiring practices for years,” Thomas said. “There is no way that we could have imagined that the situation would have become worse under Patrick Morrisey, but that is exactly what happened.”

In response, the attorney General’s Office points to record-breaking settlement dollars secured by the state under Morrisey and the work he has done to ensure that more settlement dollars are kept by the state.

“attorney General Patrick Morrisey has negotiated some of the lowest outside counsel fee rates in America and literally went to court to fight against higher rates he inherited from his predecessor,” said John Mangalonzo, press secretary for the attorney General’s Office. “No one has negotiated lower rates and obtained better substantive results.”

SUE AND SETTLE

A review of court cases by WV CALA since 2013 found 31 cases where outside counsel was used by the attorney General’s Office, though eight of those cases were first brought by McGraw and finished under Morrisey.

In cases first brought by Morrisey between 2013 and 2023, the group found that more than $55.7 million had been awarded in attorney fees to outside counsel representing the attorney General’s Office in 12 cases. In another four cases, WV CALA could not identify any attorney fees. Seven other cases had no awards to date.

However, a chart provided by the attorney General’s Office tells a different story. In 11 cases brought by Morrisey using outside counsel, the state received more than $674 million in settlement amounts, with $54.5 million going toward attorney fees. The percentage of recoveries paid to outside attorneys ranged from 14% in the Rite Aid settlement to a low of 7% in the Johnson & Johnson case.

Based on the percentage of recoveries paid to outside attorneys under McGraw – ranging from 21% to as high as 40% – the attorney General’s Office estimated that the same 11 cases filed under Morrisey would have resulted in between $223 million and $269 million in attorney fees based on percentages during the McGraw years.

House Bill 4007, passed in 2016, sets a decreasing percentage scale based on the increasing settlement amount. The scale allows a minimum of 25% in attorney fees for the first $10 million recovered through a settlement and a maximum of 5% in attorney fees for any settlement exceeding $25 million. State Code 5-3-3a also sets a $50 million cap on fees for any matter arising out of a single court case.

“All contingency agreements entered by Morrisey are below the cap of W.Va. Code §5-3-3a, including cases involving (West Virginia) Paving, McKesson, Johnson & Johnson (hips and mesh) and the recently settled opioid litigation, all published on the attorney general’s website,” Mangalonzo said. “In every single case we have ever managed, we have pushed the court to have West Virginia pay the lowest or one of the lowest outside counsel rates in the nation.”

In 12 cases inherited from McGraw after his defeat in 2012, Morrisey was able to secure lower percentages for outside attorney fees, paying $4.4 million in attorney fees out of $17.9 million in settlement awards. Morrisey was able to bring down the average percentage of recoveries paid per case from 33.6% under McGraw to 24.7% for McGraw cases finished by Morrisey. For cases brought by Morrisey, the average percentage was 8.4%.

ON THE RECORD

Thomas and WV CALA also accused Morrisey and the attorney General’s Office of not properly reporting all outside counsel expenditures with the West Virginia Legislature.

State Code 5-3-4(a) – also amended by HB 4007 in 2016 – requires an annual report to be submitted to the governor, the Senate and the House of Delegates by Nov. 1 providing details on pending legal cases brought by the office, including specifics on use of private attorneys. HB 4007 requires competitive bidding for use of outside law firms, which are often required when the attorney General’s Office needs assistance with complex civil lawsuits.

The law requires the attorney General’s Office to list the names of outside counsel, their law firms and the amount of any legal fees paid. WV CALA identified missing legal fee information on past annual reports, as well as missing cases that WV CALA alleges involved the use of outside counsel.

“Despite the fact that the Legislature passed legislation to bring transparency to the practice of hiring outside counsel, Patrick Morrisey’s office has refused to comply with the new law and has remarkably helped pay personal injury law firms hundreds of millions of dollars more than Darrell McGraw ever did,” Thomas said.

HB 4007 first went into effect on May 9, 2016, but according to the WV CALA report, attorney General’s Office’s annual reports for 2016 through 2020 do not identify civil cases where outside counsel was appointed, with the annual reports for 2016 and 2017 only identifying outside counsel used for Division of Corrections and Rehabilitation cases.

However, the attorney General’s Office believes it is in compliance with the law. The office only reports the use of outside counsel in cases in which the attorney general is directly involved. The reporting of use of outside attorneys on behalf of other state departments and agencies is not required, the office maintains. Despite acknowledging one issue, Mangalonzo said the office is in compliance with reporting requirements.

“While the office may have made a clerical oversight, it has disclosed – in compliance with the law – all of its settlements, the firms involved, and all of the fees earned,” Mangalonzo said.

LAW REVIEW

The feud between WV CALA and Morrisey stems from the recent record-breaking nearly $1 billion settlement with major manufacturers and distributors of prescription opioids in West Virginia.

Former Berkeley County Circuit Court Judge Christopher Wilkes – acting as the common benefit fund commissioner – recommended in September that outside counsel receive 15% of the more than $940 million in settlement awards against Johnson & Johnson, Teva, Walgreens, CVS, Kroger, Walmart, Allergan, Rite Aid.

Motley Rice, a national firm specializing in class action lawsuits, and the Webb Law Centre based in Charleston, were the outside counsel used by the attorney General’s Office. The attorney General’s Office negotiated a capped fee rate for outside counsel at 7.8%, but that cap does not apply to the 20 other law firms for the cities and counties, which are set to receive more than $51 million in attorney fees.

“The opioid litigations resulted in the largest per capita settlements against opioid supply chain defendants in the nation,” Mangalonzo said. “And the State’s claims were advanced under a negotiated contract with outside counsel at a rate that saved the taxpayers $10.7 million compared to the contingency fee that was available under W.Va. Code §5-3-3a.”

Outside counsel for the attorney General’s Office stand to earn more than $41 million from the $92 million-plus awarded to the office for attorney fees recommended by Wilkes. This represents “more than 50 times the recovery of other recipients and more than double of all other fund recipients” according to the WV CALA report.

The organization was critical of these attorney fees at the time, accusing Morrisey and his office of not acting more quickly to oppose the contingency recommendations from Wilkes. Morrisey released statements in October opposing the recommendations and filed objections the same day the recommendations were approved by the Mass Litigation Panel.

During the McGraw administration, WV CALA was frequently critical of McGraw’s use of outside law firms, whose attorneys were often campaign donors to McGraw. A 2007 report by WV CALA accused McGraw of cronyism and favoritism, enriching attorneys in exchange for campaign contributions.

While nothing prevents private attorneys representing the attorney General’s Office from donating toward Morrisey, competitive bidding of outside attorney services and the capping of contingency fees were meant to provide a firewall to take much of the politics out of attorney selection. But with Morrisey seeking the Republican nomination for governor and new candidates seeking the office in 2024, WV CALA would like to see lawmakers take another look at contingency fees.

“We urge the members of the West Virginia Legislature to review our report and make another attempt to address this broken system of personal injury law firms using our state attorney General’s Office to make hundreds of millions of dollars,” Thomas said. “While Darrell McGraw and Patrick Morrisey may have gotten away with this abuse, we need to ensure that future attorney generals do not.”

(Adams can be contacted at sadams@newsandsentinel.com)

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Aaron Miguel Conell, 24, of Pasadena, is accused of killing Mickey Cooper, 64, at Washington Park on Nov. 18. [Pasadena Police dept. photo]

Arraignment is scheduled Monday for a man charged with murder in connection with the shooting death of the younger brother of former Lakers star Michael Cooper at a Pasadena park.

Aaron Miguel Conell, 24, of Pasadena, is accused of killing Mickey Cooper, 64, at Washington Park on Nov. 18.

Conell is also charged with one count of attempted murder involving an alleged attack early Oct. 29 on a man who was shot in the neck at Washington Park, and one count of assault with a semiautomatic firearm for allegedly walking up to a car and pointing a gun at a man seated in the driver’s seat at a gas station in Pasadena just before 9:30 p.m. Nov. 5, according to the District attorney’s Office.

The charges include allegations that Conell personally used a 9 mm semi-automatic handgun during the commission of the crimes and that he personally inflicted great bodily injury on the victim in the Oct. 29 shooting.

Mickey Cooper was found at 4 a.m. Nov. 18 suffering from gunshot wounds after Pasadena police responded to a ShotSpotter gunshot detection alert in the 700 block of East Washington Boulevard, between Lake and El Molino avenues. He was pronounced dead at the scene.

The victim’s brother, Michael, was a defensive stalwart during the Lakers’ “Showtime ” championship era in the 1980s. After his playing career ended, he had various coaching positions, including as coach of the Los Angeles Sparks, guiding them to two WNBA titles. He is now the boys’ basketball coach at Culver City High School.

“The reason that my brother was there (is) because it was a safe haven for him, a place that he felt that he could be comfortable and safe,” Michael Cooper told reporters during a Wednesday morning news conference. “And it had been, up until that tragic night this has happened.”

Cooper said he and his brother played regularly at the park when they were growing up.

He thanked Pasadena police for their work on the case, reiterating that his brother had struggled with drug addiction “that he just couldn’t shake.”

“I like to feel he is in a better place,” Cooper said.

Conell was taken into custody late Nov. 18 by Pasadena police. He remains jailed in lieu of $4.25 million bail. Police said the shootings appeared to be random attacks.

Police coordinated an arrest operation with members of the U.S. Marshals Service Pacific Southwest Regional Fugitive Task Force and the department’s SWAT and K-9 units, according to Pasadena police Lt. Monica Cuellar.

Conell was initially booked at the Pasadena City Jail on suspicion of assault with a firearm, but detectives obtained additional evidence so he was additionally booked on suspicion of murder, Cuellar said.

Conell could face more than 50 years to life in state prison if convicted as charged, according to the District attorney’s Office.

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