Keep your finger on the legal world's pulse

The American Bar Association (ABA)'s policymaking body is set to publicly oppose laws that restrict teaching about race or gender, as well as bans on books covering those subjects. A resolution submitted to the ABA's House of Delegates opposes any laws or policies that limit the inclusion of studies on the experiences and contributions of individuals or groups based on their race, gender identity, sexual orientation, or religion. The resolution also opposes restrictions on books and school resources addressing these topics. The ABA's House of Delegates will vote on the proposal, which aims to protect students' freedom to learn and receive a comprehensive education. The resolution specifically mentions Florida's Stop WOKE Act, which prohibits discussing race in the classroom. Supporters argue that teaching about racism divides students, while the ABA report counters that such laws eliminate any discussion of race. The ABA will also consider a new law school accreditation rule requiring campuses to adopt free speech policies.

 

Reuters

For lawyers trying to close the justice gap, generative artificial intelligence (AI) has the potential to be a game changer. With 92% of low-income Americans' civil legal problems going unaddressed, AI chatbots like ChatGPT and Google Bard could help legal services organizations simplify and expedite their work. These large language models can assist in vetting and intake processes, as well as the completion of casework. By analyzing cases, conducting research, and assembling documents more efficiently, attorneys can handle pro bono cases faster and help more clients. Generative AI can also aid in translating legal documents into different languages, although human review is still necessary. The hope is that generative AI will empower individuals to handle their own legal needs, from identifying legal issues to automating necessary documents. While the technology isn't advanced enough for pro se litigants to fully draft their own briefs, it can provide prompts and assistance. Additionally, tools like simulators can help law students and lawyers practice scenarios and improve their understanding of legal issues. Generative AI has the potential to bridge the justice gap and increase access to justice for all.

 

ABA Journal

A New York lawyer is facing possible discipline for citing a non-existent case generated by artificial intelligence (AI). The lawyer used OpenAI's ChatGPT for research in a medical malpractice lawsuit and included the nonexistent state court decision in an appeal. The court ordered the lawyer to submit a copy of the cited decision, but she was unable to do so. The lawyer admitted to including a case "suggested" by ChatGPT but claimed no bad faith or prejudice. This incident is not unique, as other lawyers have inadvertently included false case citations generated by AI tools. The 2nd Circuit Court of Appeals referred the lawyer to its grievance panel for further investigation. The court also ordered the lawyer to provide a copy of the ruling to her client. The use of AI tools by lawyers is prompting judges and courts to consider new rules and guidelines. The case is Park v. Kim, 2nd U.S. Circuit Court of Appeals, No. 22-2057.

 

Reuters

In late 2022, veteran immigration lawyer Greg Siskind used Casetext's artificial intelligence (AI) legal assistant CoCounsel for research in a class action lawsuit for Ukrainian refugees. Siskind's legal technology company, Visalaw.Ai, and the American Immigration Lawyers Association introduced "Gen," an AI software that aids immigration lawyers in research and drafting. The software provides quick answers, citations, and source material for lawyers' queries. The use of AI tools is expected to increase lawyers' productivity and potentially reduce service costs, making legal assistance more accessible. Miami-based lawyer Nadine Navarro developed DraftyAI, a GPT-based tool that automates the creation of legal documents using client data. While AI technology offers benefits, concerns about data privacy, bias, and the need for human consultation persist. Amélie-Sophie Vavrovsky, CEO of Formally, emphasizes the importance of consulting with an attorney in immigration law cases to avoid severe consequences.

 

ABA Journal

The TikTok ban on U.S. government devices is facing challenges in enforcement. Two Republican senators, Marsha Blackburn of Tennessee and John Thune of South Dakota, have raised concerns about the IRS allowing some employees to access the social network, potentially compromising taxpayer data security. The Wall Street Journal has reported that TikTok employees still shared data with their China-based parent company, despite efforts to keep U.S. user data on Oracle servers. The report raises concerns about the protection of U.S. user data and the enforceability of such bans. The IRS' Criminal Investigation unit's staff were found to have accessed TikTok on their devices, despite the ban. The IRS argued that the app was only used via third-party software. The senators have asked the IRS to respond to questions regarding the ban's implementation and the security protocols for protecting taxpayer data. The wider U.S. TikTok ban on government devices is also facing legal challenges.

 

Yahoo News Australia

Investing in cybersecurity is crucial to protecting data and meeting the ethical duty to safeguard client information. With limited funds, it's important to choose the right investments. Multi-factor authentication (MFA) is highly recommended, as it reduces the risk of compromise by 99.2%. Implementing MFA is a no-brainer and can be done at no cost. Ransomware attacks are on the rise, so investing in data recovery solutions is essential. Having good backups and using external USB drives or cloud services can help restore data without paying a ransom. Endpoint Detection and Response (EDR) software is another valuable investment, as it uses advanced technology to detect and prevent suspicious activity. Implementing a Zero Trust Architecture (ZTA) is also crucial, as it verifies the identity and access of every device and person.

 

Above the Law

Major U.S. business groups, including the U.S. Chamber of Commerce and the American Farm Bureau Federation, have filed a lawsuit against California to overturn the state's new climate disclosure laws. The groups argue that the laws will impose significant costs on businesses and violate free speech protections. They also claim that the laws act as de facto national emissions regulations, which is the jurisdiction of the federal government. The legislation, signed into law by Governor Gavin Newsom, requires companies to publicly report their greenhouse gas emissions and climate-related financial risks. One law mandates companies with over $1bn in annual revenue to disclose their carbon emissions, while the other requires companies with over $500m in revenue to disclose climate-related financial risks. The lawsuit aims to challenge the constitutionality and validity of these laws. "These laws will have a massive impact on businesses and will create an undue burden," said a spokesperson for the U.S. Chamber of Commerce. The California Air Resources Board, the defendant in the lawsuit, has not commented on the matter.

 

Reuters

A Pennsylvania lawyer has asked the U.S. Supreme Court to intervene in a case challenging an anti-harassment and anti-discrimination professional rule for lawyers in the state. The lawyer, Zachary Greenberg, argued that the 3rd Circuit U.S. Court of Appeals incorrectly determined that he lacked standing to challenge the state bar rule. Greenberg claimed that the rule, which prohibits lawyers from engaging in conduct constituting harassment or discrimination, risked violating his constitutional free speech rights. The Pennsylvania rule attracted support from the American Bar Association and other bar groups, but was opposed by conservative, religious, and civil rights groups. The case is Greenberg v. Lehocky, 3rd Circuit U.S. Court of Appeals, No. 22-1733.

 

Reuters

Legal departments' efforts to promote diversity in law firms are facing challenges and progress has been slow, according to experts and advocates. Only 21% of legal departments are requesting diversity data from law firms, and an even smaller percentage are demanding that firms staff matters with attorneys from underrepresented groups. While the percentage of women and minority associates has increased, the progress is considered minimal. There is a debate on whether legal departments should use a "stick" approach, punishing firms that fail to show progress, or a "carrot" approach, rewarding diversity gains. Some legal departments are reluctant to discuss their diversity efforts due to concerns about reverse discrimination. However, experts suggest that legal departments can use their power of the purse to advance diversity by emphasizing it in RFPs and making it a key criteria in selecting outside counsel. Former legal-ops chief Akshay Verma believes that fear is a barrier to advancing diversity and that courage is needed to make progress.

 

Law

Fringe Professional Development's Katie Aldrich provides tips to law partners on how to elevate associate feedback. While formal performance reviews in law firms provide a structured platform for feedback, they often lack frequency and substance. This results in a check-the-box exercise rather than a useful developmental tool. To improve feedback, partners should invest time in learning how to provide meaningful, constructive feedback. High-quality feedback involves delivering precise, constructive, and actionable insights. Techniques such as encouraging self-assessment, using the situation-behavior-impact model, being future-focused, offering actionable steps and resources, and providing regular, informal feedback can elevate feedback from a generic platitude to a powerful developmental tool. By implementing these techniques, associates' performance can be enhanced, leading to a more connected and effective team.

 

Bloomberg Tax

The Department of Labor has implemented a new rule that makes it harder for employers to classify workers as independent contractors. This rule, which takes effect on March 11, is expected to result in more workers being treated as nonexempt employees for wage and hour purposes, as well as for benefits, tax withholding, and anti-discrimination laws. Employment attorneys predict that the rule will lead to increased legal unpredictability and make it harder for employers to determine who is an employee. The new rule cancels a Trump administration test and replaces it with the "economic realities" test, which considers multiple factors to determine worker status. Misclassifying a worker can result in significant penalties and damages for employers. The rule also adds complexity for employers trying to navigate different tests under various laws. The possible reclassification of workers as employees could have far-reaching consequences, including the need to offer health coverage under the Affordable Care Act and coverage under the Family and Medical Leave Act. Employers will need to closely monitor how the new rule plays out in litigation and be prepared for potential legal complaints.

 

Bloomberg Tax

A small venture capital firm has faced tough questions from conservative judges as it defended a grant program for Black women-owned businesses in a lawsuit that U.S. News says symbolizes the growing legal backlash against corporate diversity programs. The Fearless Fund, which provides early stage funding for businesses owned by women of color, is seeking to lift an injunction against its Strivers Grant Contest. The conservative group American Alliance for Equal Rights filed the lawsuit, arguing that the program discriminates against people of other races. The hearing in Miami will determine whether the grant will remain suspended during the lawsuit. The judges' questions suggest an uphill battle for the Fearless Fund. The case has become significant for civil rights activists who fear it could endanger other donations or programs aimed at helping disadvantaged groups. Less than 1% of venture capital funding goes to businesses owned by Black and Hispanic women.

 

U.S. News

A major New Jersey personal injury firm, Ginarte Gonzalez & Winograd, is facing its second wrongful termination lawsuit. Attorney Alphonse Petracco claims that he was fired for calling attention to a mishandled workers' compensation case and supporting a female paralegal who reported inappropriate touching by a partner in the firm. Petracco's suit echoes the allegations made by former managing partner Michael Gallardo in a previous case. The suit alleges that Ginarte was aware of Petracco's role in the case and that he retaliated against Petracco for supporting the paralegal's report of sexual harassment. Both Petracco and Gallardo are now with Fredson Statmore Bitterman. Ginarte denies the claims and states that they prioritize a respectful and inclusive work environment. The firm's review found no basis to support Petracco's claims. The legal process will determine the outcome of the case.

 

Law

Proskauer Rose has reached a settlement agreement with its former chief operating officer, Jonathan O'Brien, in a lawsuit accusing him of stealing confidential information and attempting to recruit other employees to a competitor. As part of the deal, Proskauer Rose and O'Brien have requested a federal judge to issue an order preventing the use of Proskauer's proprietary and confidential information. The terms of the settlement were not disclosed. The lawsuit, which began a year ago, alleged that O'Brien downloaded 34 gigabytes of data before his planned departure to another firm. O'Brien denied the claims and stated that he downloaded the data to work during a vacation. Proskauer expanded the lawsuit by accusing O'Brien of abusing his former position by having the firm cover his personal expenses and make donations to charities.

 

Reuters