Legal Ethics

And What Keeps You Up At Night?

Cringe? Just consider it the gift that keeps on giving, years or decades after you though you'd buried the trauma.

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lawyer facepalmWhat is your worst nightmare? I can think of many that, even while history, still make me cringe and that prompt sleepless nights. We’ve all had them and will continue to do so. Here’s just a sample:

Litigation holds can and do get screwed up in numerous ways. Back in dinosaur days, before there were vendors handling e-discovery and litigation holds, it was in-house counsel making sure that they were circulated to the right peeps and the right departments. Making sure that such holds were promptly done and that the information needed was correctly held led to many sleepless nights. Back then, my client’s policy was automatic deletion of emails after 90 days and that’s what we routinely told opposing counsel. However, that policy was suspended, and all emails were kept indefinitely. Of course, we who had the responsibility for litigation holds were never told of that suspension. Silos, anyone? Failure to communicate? You think?

That cringe-worthy situation came to mind because of the recent $4 million sanction leveled against JPMorgan Chase by the SEC for its failure to retain more than 47 million (not a typo) emails that the SEC wanted in connection with various regulatory investigations. Yowzah! I can only imagine how many sleepless nights there have been resulting from this “whoops.”

Then, of course, who can forget the major snafu involving the two lawyers who, to their detriment, relied on ChatGPT’s citing cases in their pleadings that only existed in the fertile mind of AI and who clung to that position long after they should have caved?

The court imposed a $5,000 fine, but that wasn’t all. The court ordered distribution of its 34-page sanctions opinion to the real-life judges that ChatGPT said handed down the fake opinions. The court dismissed the underlying case that started the whole mess, stating it was not timely filed. Exhibit A for the rule that when digging yourself a hole, stop digging.

Joe Queenan, the Wall Street Journal columnist, asked in his column last weekend whether it would be better if AI is not made all that intelligent. Queenan’s point is that merely average AI could be sufficient and could do some good. As he puts it, one benefit of average artificial intelligence is that it “will never forget who’s boss. It will never overstep its bounds. It will never get out of its depth.” What do you think?

How about this for a cringe-worthy situation? The County of Los Angeles, which had used Lewis Brisbois, will do so no longer. No surprise there, given the recent release of horrific emails to and from now departed former partners, who have now been kicked out of their new firm. The County will also decide whether to reassign current matters at the Lewis firm.

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Even though an argument could be made that the bad dudes have left the building and that ends it, surely some people in the Lewis firm knew or had reason to know about the existence of such emails long before the departures. Please do not tell me that the IT peeps didn’t know what was going on. IT peeps know all about emails. Even in the late 1990s when technology was nothing compared to today, my client’s IT department nailed an executive for sharing porn on the company email system. Even after he was told to delete it, he did not, so he was sacked, justifiably.

The Lewis fubar will have “legs” for some time, if only as a well-deserved cautionary tale. And how can LA County continue to use a firm even on current matters, given what has happened and what it knows now? Wouldn’t that be like “do as I say, not as I do?” or some other equally trite maxim? The plaintiff’s bar would salivate if the County keeps to the status quo on current matters.

Here is a final cringe-worthy note, at least for 18 attorneys under investigation by the California State Bar arising out of a billing scandal involving a Los Angeles public utility and the Los Angeles City Attorney’s office. One attorney involved was to be sentenced earlier this week, but two bar investigators appeared at his sentencing hearing and asked that, since he’s been cooperating in the bar’s investigation of these attorneys, to postpone sentencing. The court agreed. The convoluted facts in this lengthy snafu exceed my word limit, but here’s a good primer to what has gone on. Cringe-worthy indeed and another cautionary tale.

I have always thought that no client ever calls a lawyer to say that they have had or are having a great day or to thank counsel for the bullet that was dodged or for the good advice or because the case was settled for a de minimis amount. That may be part of the reason we are so hard-wired for gloominess. It is often the “shoulda, woulda, coulda” that is front and center with us, and that may be part of the reason why mental health issues are so prevalent. No wonder we have nightmares.

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old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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