Articles Posted in Legal News and Views

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Lawyer listservs are often used by attorneys and other professionals to help keep up with changes in the law. But they pose some potential for violating confidentiality model rules

On May 8, the American Bar Association Standing Committee on Ethics and Professional Responsibility released  formal opinion 511 which provides guidance for when a lawyer can seek advice on a listserv. It finds that model rules in most cases forbid posting questions or comments related to representation of a client, even in hypothetical or abstract form.

“Formal Opinion 511 cites Rule 1.6, which deals with confidentiality and the possibility of unethical behavior under ABA Model Rules of Professional Conduct. The formal opinion finds possible ethical problems ‘if there is a reasonable likelihood that the lawyer’s questions or comments (on a listserv) will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.'”

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Election administrators and their staff, spread throughout thousands of voting jurisdictions in the United States, perform a core service dedicated to maintaining and preserving our democracy. Their work has become significantly more difficult, as our contentious politics have clouded much of what they do with misunderstanding and distrust. These challenges have made clear that election administrators may, and typically do, lack the full range of resources they need.

As election officials gain both increasing  public visibility and scrutiny, it has become increasingly obvious that the time has come for identifying the ethical standards unique to the election administrator profession. It is essential to identify national standards for election officials that provide guidance  in the administration of voting throughout the United States.  It is therefore encouraging to learn that  the American Law Institute (ALI) has provided a forum, released to the public on January 29, 2024, for a working group developing such standards, resulting in a report Ethical Standards for Election Administration

The report sets out seven principles, discussed in detail, along with the basis for each. It is the hope of the working group that these principles provide the professional election administration community with a common vocabulary for communicating the moral underpinning of their work; assist in the training of the next generation of officials; and help guide officials in carrying out their responsibilities when the law does not supply the answer and public scrutiny is keenest. These principles also supply the grounds for specific standards of conduct that reflect these principles and put them into practical effect.

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According to responses to the 2024 ABA Survey of Civic Literacy, 74% of individuals surveyed said that U.S. democracy is weaker than it was five years ago. Most blamed misinformation, disinformation, and political parties for contributing to this result. The survey is released each year to mark Law Day, observed annually on May 1. The responses are from a nationally representative telephone survey of 1,000 respondents from March 4-9. Here is an overview of some of the results as reported by the ABA on their website: followed by a link to the full text of the survey.

Democracy “A large majority — 74% — said U.S. democracy is weaker today than it was five years ago. Only 13% said it is stronger. Among those who said our democracy is weaker, nearly 1 in 3 (31%) said the primary cause is misinformation and disinformation. Nearly as many (29%) blamed the political parties. Less than 10% blamed social media or lack of civility. The survey also asked who should be primarily responsible for safeguarding our democracy. More than a third (37%) said it is mainly the responsibility of the general public — yet half of all respondents (exactly 50%) said the general public is not very informed about how democracy works.
Elections
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Thinking back on my fifty plus years as a practicing law librarian, I have come to believe that criminal law is one of the more humanistic of legal disciplines because it can reach people at such a personal level. Paul H Robinson* and Sarah M Robinson capture this thought in their book, “American Criminal Law: Its People, Principles, and Evolution” (Routledge 2022). It offers a refreshing take on this complex subject.

This book breaks away from dry legal jargon and  instead weaves a compelling narrative that explores the history, core concepts, and ongoing debates within American criminal law. The authors write, “Criminal law is one of the most interesting perspectives on the human adventure,… it requires us to examine how we want people to act, what we will do when they act improperly, and how we decide what we can reasonably expect of people. And to do this, we must assess what makes a successful society, what citizen protections and obligations a society should enforce, as well as the principles of justice that the community shares.”

The authors’ strength lies in their engaging, approach. Each chapter delves into a specific principle, like legality or culpability, by presenting a historical case that illuminates its foundation. This is then contrasted with a modern case, highlighting the evolution of the concept. This back- and- forth through time keeps the reader engaged and demonstrates how the law adapts to societal changes.

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The United States has an important lead in the development of artificial intelligence that is crucial to the country’s economy and national security, Attorney General Merrick B. Garland said at the American Bar Association’s 39th National Institute on White Collar Crime in San Francisco. “The Justice Department’s first job is to protect that lead and to protect our intellectual property,”… . According to Garland, “the Justice Department just will not tolerate theft of trade secrets in the area of artificial intelligence.”

From the ABA announcement:

During a fireside chat with Kenneth A. Polite Jr., former assistant attorney general for the U.S. Department of Justice’s Criminal Division, Garland announced that the U.S. District Court for the Northern District of California had unsealed an indictment against a Chinese national who is charged with stealing AI-related intellectual property and trade secrets from Google.Garland said AI and other evolving technologies have “great promise and the risk of great harm … including algorithmic discrimination that AI can foster and the way in which it can accelerate the cyberattacks that are happening daily, even ‘minutely,’ on our companies, on our law firms, on our departments of the government and on our military.”
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Eyewitness accounts, once considered a gold standard, have faced increasing scrutiny due to their susceptibility to memory errors and biases. Forensic evidence, while highly valuable, comes with its own set of limitations, such as the time-consuming nature of analysis and the potential for contamination.

Enter the age of technology, which has drastically altered the way law enforcement approaches suspect identification. Innovations in data collection, processing, and analysis have paved the way for faster and more accurate identification techniques. The advent of artificial intelligence (AI) technology has proven particularly transformative, revolutionizing the field of criminal investigations.

Eyewitness identification remains a cornerstone of criminal justice, despite its well-documented weaknesses. Human memory is fallible, susceptible to stress, suggestion, and bias. Artificial intelligence (AI) offers a potential revolution in this domain, but its impact is a double-edged sword.
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The American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 509 on Feb. 28, 2024.  According to the announcement,  Formal Opinion 509 provides guidance on how disqualification rules apply to both current and former government lawyers under the ABA Model Rules of Professional Conduct. “It specifically addresses issues raised  when these lawyers know confidential government  information about a third person.”

The model rules define confidential government information as “information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.”

For additional discussion of Formal Opinion 509, see the recent article in the ABA Journal, Government lawyers’ use of ‘confidential information’ in private practice clarified in new ABA ethics opinion, by David L Hudson Jr.

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Between December 3, 2023, and January 3, 2024, LexisNexis Legal and Professional conducted a survey across 266 Managing Partners and other leaders at American Law 200 and other large law firms. Nearly a third of the executives surveyed indicated their firms had a dedicated budget for generative AI for 2024 and almost 90% indicated they expect their investment in generative AI to increase over the next five years. “Findings include results from 114 executives across 68 Am Law 200 firms, 102 executives across 79 other  large law firms, and 50 executives across 44 Fortune 1000 companies. Firms recognize the potential return on their investment, with 47% believing generative AI technology will decrease costs and 30% believing it will increase revenue. Nearly half of executives are exploring new business opportunities made possible by the technology (47%).” Surveys were conducted in English via the Forsta  survey platform.

For more details regarding survey findings,  Click here  to view the Executive Summary (an overview),  Findings (Full Survey Results), an Appendix, and a discussion of the methodology.

 

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From: January 31, 2024 through May 3, 2024:

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The current edition of Sci Tech e-Merging News published by the Science and Technology Section of the American Bar Association,  contains announcements of upcoming events and updated research discussing issues of special interest to both members of the legal profession and others outside the legal profession who face similar concerns. These events include the following:

Open-Source Software Security: Areas of Long-Term Focus and Prioritization

Thursday, January 18, 2024 | 1:00 – 2:00 PM ET

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