A
person
attracts
people
to
his
side
with
a
magnet.
Influence,
manipulate
the
opinion
of
electorate.
Collecting
support.
Endear.
Gather
followers
around
an
idea.
Political
weight,
opinion
leader.
In
this
episode
of
“Be
That
Lawyer,”
I
sit
down
with
Jennifer
Gillman,
President
and
Founder
of
Gillman
Strategic
Group,
to
break
down
a
distinction
that
quietly
shapes
every
legal
career:
the
difference
between
lawyers
who
control
their
work
and
lawyers
who
are
controlled
by
it.
Jennifer
draws
from
her
experience
as
both
a
former
practicing
attorney
and
a
trusted
recruiter
to
explain
why
business
development
is
the
gateway
to
flexibility,
autonomy,
and
long-term
career
satisfaction.
Lawyer’s
Secret:
Become
a
Rainmaker
Jennifer
explains
the
difference
between
being
a
service
partner
and
a
rainmaker,
and
why
that
distinction
matters
at
every
stage
of
a
legal
career.
Rainmakers
bring
in
the
work,
which
gives
them
meaningful
influence
over
staffing,
timelines,
and
how
matters
are
managed.
That
control
allows
lawyers
to
align
professional
responsibilities
with
personal
priorities,
whether
that
means
attending
family
events,
taking
time
off,
or
setting
realistic
deadlines.
Service
partners,
by
contrast,
often
operate
on
schedules
set
by
others.
Jennifer
emphasizes
that
this
has
nothing
to
do
with
talent
or
intelligence.
It
comes
down
to
understanding
the
business
of
a
law
firm
and
committing
to
client
development
early,
even
in
small
ways.
She
encourages
lawyers
to
view
business
development
as
an
investment
that
compounds
over
time,
much
like
interest.
Even
15
minutes
a
week
done
consistently
can
lead
somewhere
meaningful.
Steve
shares
how
a
simple
one
hour
monthly
networking
event
can
create
real
value
without
pressure
or
pitching.
By
bringing
lawyers
together
in
a
relaxed
setting,
participants
walk
away
with
genuine
connections
rather
than
transactional
exchanges.
The
focus
is
on
generosity,
visibility,
and
giving
people
a
reason
to
remember
you.
Jennifer
adds
that
building
a
wide
network
allows
lawyers
to
be
useful
in
many
different
ways,
not
just
legally.
When
people
see
you
as
someone
who
can
help
solve
problems
or
make
thoughtful
connections,
referrals
follow
naturally.
Reputation
is
built
through
consistent
presence
and
genuine
interest
in
others,
not
through
aggressive
selling.
Networking:
How
Junior
Professionals
Build
Connections
Jennifer
offers
practical
guidance
for
lawyers
earlier
in
their
careers,
emphasizing
that
networking
is
not
about
chasing
senior
decision
makers
exclusively.
Peers
and
junior
contacts
often
grow
into
positions
of
influence
over
time.
Building
relationships
at
your
level
creates
a
future
referral
network
that
matures
alongside
you.
She
also
highlights
the
importance
of
follow
through.
Being
the
person
who
sends
a
resource,
makes
an
introduction,
or
responds
promptly
leaves
a
lasting
impression.
Small
acts
of
helpfulness
signal
reliability
and
care,
which
are
qualities
people
remember
when
opportunities
arise.
“If
you
can
develop
one
dollar
of
business,
you
can
develop
a
million
dollars
or
ten
million,”
Jennifer
says.
Steve
Fretzin
is
a
bestselling
author,
host
of
the
“Be
That
Lawyer”
podcast,
and
business
development
coach
exclusively
for
attorneys.
Steve
has
committed
his
career
to
helping
lawyers
learn
key
growth
skills
not
currently
taught
in
law
school.
His
clients
soon
become
top
rainmakers
and
credit
Steve’s
program
and
coaching
for
their
success.
He
can
be
reached
directly
by
email
at [email protected].
Or
you
can
easily
find
him
on
his
website
at www.fretzin.com or
LinkedIn
at https://www.linkedin.com/in/stevefretzin.
In
late
2022,
soon
after
I
launched
The
Legal
Accountability
Project
(LAP)
to
correct
injustices
I
experienced
as
a
law
student
and
law
clerk,
a
clerk
from
the
U.S.
District
Court
for
the
District
of
Maryland
told
me
he’d
recently
been
reassigned,
along
with
his
co-clerk,
to
a
different
judge
to
escape
their
abusive
clerkships.
Apparently,
the
Administrative
Office
of
the
U.S.
Courts
(AO)
and
newly
created
Office
of
Judicial
Integrity
(OJI)
quickly
and
quietly
reassigned
both
clerks
—
a
rare
dual
reassignment
—
but
the
judge
was
not
investigated,
let
alone
disciplined
and
retrained.
The
situation
was
serious
enough
to
reassign
both
clerks,
but
not
serious
enough
to
investigate?
Fast
forward
three
years
—
during
which
subsequent
clerks
were
left
vulnerable
to
abuse
—
and
that
clerk
is
the
complainant
featured
in
a
recently
published
Fourth
Circuit
disciplinary
order
regarding
Maryland
federal
judge
Lydia
Kay
Griggsby.
Importantly,
the
Griggsby
matter
evidences
a
wholescale
judicial
branch
failure
to
meaningfully
address
misconduct
and,
rather,
to
attempt
to
sweep
misconduct
under
the
rug
—
which
the
courts
would,
absent
this
complaint.
The
complainant
and
his
co-clerk
—
clerking
for
14
months
and
just
two
months,
respectively
—
were
simultaneously
reassigned
to
a
district
chief
judge
for
the
remainder
of
their
clerkships
in
late
2022.
Back
then,
suffering
in
silence,
rather
than
reassignment,
was
the
norm.
To
reassign
two
clerks
simultaneously
should
raise
red
flags
for
all
involved.
Although
judiciary
officials
in
a
position
to
act
knew
of
serious
allegations
against
Griggsby
—
including
the
AO,
OJI,
district
chief
judge,
human
resources,
and
law
clerk
points
of
contact
in
the
Circuit
—
no
one
investigated
back
then.
The
district
chief
judge
or
AO
could
have
raised
this
with
the
Fourth
Circuit
Chief
Judge,
himself
empowered
to
launch
an
investigation.
This
shameful
failure
to
act
for
three
years,
during
which
employees
were
vulnerable
to
mistreatment
—
similar
to
the
situation
with
Second
Circuit
Judge
Sarah
Merriam
—
evidences
willful
ignorance
and
obstruction
of
justice.
It
should
raise
red
flags
for
the
court
whenever
HR
offboards
or
reassigns
clerks
early:
sadly,
it
does
not.
Griggsby
faced
similar
allegations
to
those
leveled
against
Merriam
in
both
2022
and
late
last
year.
In
fact,
the
Griggsby
clerk
said
the
Merriam
allegations
were
eerily
similar
to
his
own
experience.
Clerks
alleged
Griggsby
created
an
abusive
work
environment
and
bullied
them,
causing
mental
anguish
and
health
issues
they
attributed
to
their
clerkships.
Griggsby
berated
them
for
perceived
mistakes;
created
a
climate
of
fear
in
chambers
that
prevented
clerks
from
asking
questions;
and
referred
to
one’s
work
as
“crap;”
and
the
other,
“an
embarrassment
to
the
court.”
In
fact,
when
the
complainant
started
his
clerkship,
the
outgoing
clerk
(who
apparently
was
not
interviewed
during
the
investigation)
warned
him
about
the
hostile
work
environment
—
but
it
was
too
late.
One
particular
story,
whitewashed
in
the
order,
haunts
me.
The
co-clerk,
who
was
never
told
she
could
not
use
the
judge’s
private
bathroom,
was
in
the
restroom
when
Griggsby
barged
over,
started
banging
on
the
door,
and
barked,
“My
bathroom!
My
bathroom!”
The
co-clerk,
distraught,
ran
out
of
the
bathroom
with
her
pants
still
unzipped.
She
was
subsequently
too
traumatized
to
drink
or
eat
during
the
day
for
the
rest
of
her
(short)
clerkship
with
Griggsby,
for
fear
of
needing
to
use
the
restroom.
This
inappropriate
and
disrespectful
behavior
is
wholly
unbecoming
of
a
life-tenured
federal
judge.
The
Fourth
Circuit’s
efforts
to
whitewash
this
horrible
experience,
and
the
rest
of
the
clerks’
allegations,
underscore
how
desperately
they
attempt
to
shield
judges
like
Griggsby
from
accountability.
There
are
respectful,
appropriate
ways
to
conduct
oneself
as
a
manager,
especially
under
stressful
circumstances:
Griggsby
—
like
Merriam,
Mark
Wolf,
and
many
others
I’ve
written
about
—
should
not
manage
employees.
The
federal
judiciary’s
claimed
commitment
to
an
“exemplary”
workplace
repeatedly
rings
hollow.
The
judiciary’s
shameful
failure
to
act
for
three
more
years
subjected
subsequent
Griggsby
clerks
to
abuse.
Importantly,
reassigning
clerks
without
addressing
the
underlying
abusive
conduct
through
remedial
action,
retraining,
and
meaningful
discipline
is
a
Band-Aid
over
a
bullet
hole
that
fails
to
solve
the
problem.
Judges
who
mistreat
clerks
but
are
not
disciplined
will
continue
mistreating
them.
Punishment
is
a
deterrent.
Judges
who
evade
meaningful
accountability
may
be
emboldened
to
treat
clerks
worse,
as
with
Merriam.
This
systemic
failure
by
judicial
branch
officials
to
ensure
safe
and
respectful
workplaces
requires
systemic
reform.
Griggsby
may
not
have
been
familiar
to
Above
the
Law
readers,
but
this
was
not
news
to
many
in
the
Maryland
legal
community.
Nor
was
this
news
to
Maryland
Law,
which
warns
students
to
avoid
externships
with
Griggsby
and
offered
to
help
students
get
reassigned
in
the
past.
Disturbingly,
Griggsby
also
made
news
recently
as
the
judge
presiding
over
Tom
Goldstein’s
case
—
engendering
a
wrongly
lionizing
Law360
piece.
It’s
ironic
that
judges
being
investigated
for
misconduct
are
simultaneously
tasked
with
adjudicating
others’
misconduct.
Furthermore,
the
deceptive
practice
of
publishing
disciplinary
orders
anonymously
on
the
U.S.
courts
website,
referring
only
to
a
“subject
judge,”
shields
judges
found
to
have
committed
misconduct
from
accountability.
Fortunately,
I
knew
who
this
judge
was.
That’s
not
always
the
case.
Often,
the
press
and
public
are
forced
to
deduce
judges’
identities.
This
is
not
meaningful
transparency
or
accountability:
the
judiciary
checks
a
box
while
obfuscating
about
serious
misconduct.
Why
is
transparency
important
here?
First,
public
accountability
is
a
deterrent
for
both
the
subject
judge
and
their
colleagues.
Judges
fear
being
publicly
named
and
shamed
and
are
motivated
to
avoid
this:
knowing
their
identities
will
be
shielded
even
if
they’re
found
to
have
committed
misconduct
doesn’t
deter
bad
behavior.
Discipline
is
an
important
deterrent,
especially
in
the
judiciary,
where
judges
are
exempt
from
Title
VII
of
the
Civil
Rights
Act
and
all
federal
anti-discrimination
laws
and
cannot
be
sued
for
misconduct.
Second,
prospective
clerks
need
to
know
which
judges
mistreat
clerks,
so
they
do
not
clerk
for
judges
like
Griggsby.
Fortunately,
LAP’s
nationwide
Clerkship
Database
serves
as
a
tool
to
warn
applicants,
but
LAP
continually
fields
new
information
about
more
judges
to
avoid.
In
the
wake
of
the
clerks’
reassignment
in
2022,
Griggsby
apparently
made
window
dressing
changes,
including:
“(1)
meeting
with
a
mentor
judge
to
discuss
best
practices
for
chambers
management,
(2)
implementing
informal
coffee
hours
with
staff,
(3)
scheduling
periodic
informal
outings
for
chambers
staff
with
the
judge,
(4)
extending
the
time
for
weekly
docket
review
meetings,
(5)
conducting
informal
exit
interviews,
and
(6)
allowing
incoming
law
clerks
to
shadow
the
outgoing
clerks.”
Some
of
these
are
counterproductive.
Judges
should
not
treat
clerks
like
family
—
clerking
is
a
job
like
any
other
—
and,
rather
than
force
clerks
to
spend
time
outside
the
office
with
the
judge,
likely
extending
their
work
hours
—
Griggsby
should
have
participated
in
remedial
management
training;
trained
each
set
of
incoming
clerks
herself
rather
than
delegating
to
outgoing
clerks;
and
solicited
feedback
from
incoming
and
outgoing
clerks
about
management
preferences
and
how
to
improve.
Judges
delegating
incoming
clerks’
training
to
outgoing
clerks
creates
unnecessary
miscommunication
and
unclear
expectations,
exacerbates
poor
management
and,
when
tensions
run
high,
leads
to
bullying.
Additionally,
this
pre-clerkship
“shadow
time”
is
often
unpaid.
Frankly,
many
judge/clerk
issues
could
be
avoided
if
judges
trained
clerks
themselves;
made
expectations
clear
at
the
outset;
and
regularly
communicated
expectations
and
feedback.
But
the
judiciary
insists
on
decentralization:
every
judge’s
chambers
is
its
own
“fiefdom.”
A
chief
judge
is
loath
to
question
chambers
management,
even
when
a
judge
is
accused
of
misconduct.
The
first
thing
I
noticed
about
this
order,
just
days
after
LAP
filed
our
first
complaint
against
Merriam,
is
the
laughable
“corrective
actions”
for
Griggsby:
they’re
the
same
toothless
remedies
that
did
not
work
on
Merriam.
In
fact,
watching
training
videos,
checking
in
with
the
chief
judge,
and
instructing
the
director
of
workplace
relations
(DWR)
to
check
in
with
clerks,
shockingly,
did
not
deter
Merriam’s
misconduct.
They
won’t
deter
Griggsby,
either:
I
suspect
she’ll
continue
mistreating
clerks,
given
the
lack
of
meaningful
discipline.
Here’s
why
the
specific
corrective
actions
imposed
by
the
Fourth
Circuit
are
meaningless:
•
Participating
in
discussions
about
workplace
conduct
issues
and
proper
management
of
chambers
staff,
including
regular
meetings
with
[the
Chief
Judge]
.
.
.
every
two
months
and
will
be
discontinued
after
18
months
if
no
additional
concerns
arise.
This
did
not
work
with
Merriam—the
Second
Circuit
Chief
Judge
either
failed
to
recognize
Merriam
continued
mistreating
clerks
or,
if
the
Chief
Judge
knew,
she
failed
to
take
meaningful
action
to
protect
clerks
and
discipline
Merriam.
•
Attending
workplace
training
annually
with
chambers
staff.
The
judiciary
claims
this
is
already
required
for
judges
and
clerks.
•
Pledging
to
bring
to
me
(or
to
a
future
chief
judge)
any
workplace
conduct
concerns
that
come
to
the
judge’s
attention.
We
have
no
evidence
a
judge
would
affirmatively
admit
misconduct.
•
Informing
new
law
clerks
that
they
may
bring
any
concerns
directly
to
my
attention
in
addition
to
relying
on
regular
complaint
procedures.
This
is
already
delineated
in
the
Judicial
Conduct
and
Disability
Rules.
•
Affirming
“the
judiciary’s
commitment
to
maintaining
a
work
environment
in
which
all
judicial
employees
are
treated
with
dignity,
fairness,
and
respect,
and
are
free
from
harassment,
discrimination,
.
.
.
retaliation”
and
other
abusive
conduct.
Judicial-Conduct
Rule
4
cmt.
“Affirming”
is
a
meaningless
term.
If
the
corrective
action
is
not
enforceable,
it
won’t
be
enforced,
and
it
won’t
work.
And,
•
Agreeing
that
the
circuit
director
of
workplace
relations
will
meet
with
law
clerks
every
other
month
to
gauge
the
workplace
environment,
with
such
meetings
to
be
discontinued
after
18
months
if
no
additional
concerns
arise.
This
is
probably
the
most
toothless
corrective
action
of
all:
the
Second
Circuit
DWR
learned
of
Merriam’s
ongoing
misconduct
but
failed
to
act.
DWRs
apparently
believe
they
do
not
have
a
duty
to
report
misconduct.
Griggsby
is
the
third
judicial
misconduct
story
in
just
six
weeks
—
following
allegations
against
Merriam
and
a
disciplinary
order
regarding
former
judge
Mark
Wolf,
who
allegedly
resigned
in
late
2025
to
take
a
“principled
stand”
against
Trump
administration
lawlessness,
but
actually
resigned
amid
a
misconduct
investigation
to
evade
accountability.
And
yet,
following
three
stories,
all
widely
covered
in
the
press,
outrageously,
we’ve
seen
radio
silence
from
Congress.
Not
a
single
statement
from
a
single
member
following
any
of
these
stories.
Talk
about
failing
to
use
the
bully
pulpit.
Perhaps
most
disappointing
is
the
lack
of
response
from
a
member
of
my
Pennsylvania
congressional
delegation
—
a
lawyer
who
clerked
and
is
on
the
House
Judiciary
Committee
—
who
refused
to
send
an
oversight
letter
to
the
AO,
even
though
the
Griggsby
complainant
is
one
of
their
constituents
and
one
of
just
two
brave
law
clerk
complainants
last
year.
This
deafening
silence
from
spineless
members
of
Congress
is
shameful:
Congress
has
wholly
abdicated
its
oversight
responsibility
over
the
federal
courts.
To
be
clear:
these
are
congressional
problems
requiring
congressional
solutions.
Congress
believes
they
won’t
be
held
accountable
for
failing
to
act,
because
constituents
don’t
know
this
is
a
problem,
don’t
care
about
this
issue,
or
don’t
understand
how
the
lack
of
accountability
in
the
courts
affects
them.
(In
the
case
of
this
Pennsylvania
congressperson,
I
can’t
think
of
a
more
direct
constituent
impact.)
Congress
doesn’t
understand
judicial
branch
lawlessness
affects
all
of
us.
Clearly,
who
represents
us
in
Congress
matters.
Fortunately,
2026
is
an
election
year.
If
your
member
of
Congress
won’t
act,
hold
them
accountable:
replace
them
with
someone
who
will.
Congress
has
at
least
four
tools
in
its
toolbox
—
legislation,
oversight,
appropriations,
and
the
bully
pulpit
—
and
should
use
these
now
to
hold
the
judiciary
accountable
for
misconduct.
Sadly,
congressional
Democrats
won’t
hold
judges
accountable
who’ve
ruled
against
the
Trump
administration:
that
runs
counter
to
their
perceived
interests.
They
also
seem
intent
on
shielding
abusive
liberal
judges
from
accountability,
since
if
Democratic
appointees
like
Merriam
and
Griggsby
step
down,
Trump
would
choose
their
replacements.
But
congressional
Democrats’
failure
to
prioritize
the
courts
led
us
here;
and
the
Biden
administration’s
and
Senate
Democrats’
failure
to
properly
vet
judicial
nominees
created
this
conundrum.
Congress
must
accept
responsibility
for
fixing
the
mess
they
created.
The
federal
judiciary
fails
to
hold
judges
accountable
for
misconduct,
refuses
to
enforce
its
own
code
of
conduct,
and
shields
abusive
judges
from
accountability.
Like
other
insular
organizations
that
insist
on
“self-policing,”
like
the
military
and
police
unions,
this
leads
to
a
lack
of
policing.
Congress
must
step
in
and
conduct
oversight
over
the
courts.
Sadly,
Congress
has
done
basically
nothing
on
this
issue
—
allowing
the
federal
judiciary
to
get
away
with
perpetrating
a
fraud
upon
the
public.
We
must
urge
Congress
to
act:
if
they
won’t,
our
votes
are
our
voices,
and
we
should
pick
a
better
Congress
that
will.
After
three
judicial
misconduct
stories
in
just
six
weeks,
when
will
feckless
members
of
Congress
act?
I’ve
heard
every
excuse.
But,
as
I
said
in
congressional
testimony
back
in
2022,
thousands
of
law
clerks
and
tens
of
thousands
of
judicial
branch
employees
cannot
wait
another
year
for
desperately-needed
reforms.
At
a
time
when
Congress
seems
solely
obsessed
with
Trump
—
routinely
calling
for
“accountability”
and
“transparency”
—
they
should
focus
on
the
judiciary,
too:
a
lawless
branch
of
government
acting
with
impunity.
The
entire
country
—
impacted
by
judges’
decisions
—
cannot
wait.
The
time
for
action
is
now.
Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.
Chief
Justice
John
Roberts
is
still
“barely
invited”
to
this
year’s
State
of
the
Union,
but
the
rest
of
us
will
have
to
absorb
the
festivities
from
the
comfort
of
our
own
homes.
As
is
the
quasi-annual
tradition
at
Above
the
Law,
we
have
prepared
a
State
of
the
Union
Drinking
Game,
as
a
solemn
civic
service
to
America’s
lawyers
who
gather
to
watch
constitutional
order
strain
under
the
weight
of
sundowning
fascism.
It’s
a
speech
that
drove
Justice
Ginsburg
to
drink
and
that
was
during
a
sane
administration.
Traditionally
this
is
a
drinking
game,
but
obviously
it
doesn’t
have
to
be.
For
any
of
you
concerned
about
crossing
the
line
into
substance
abuse,
feel
free
to
play
with
any
other
metric
you
wish.
Virgin
margaritas,
iced
coffee,
smacking
yourself
in
the
face
with
a
hammer…
whatever
gets
you
through
the
spectacle
of
Donald
Trump
ambling
through
grievances
while
trying
to
avoid
sharting
himself…
again?
If
you’re
one
of
the
justices
staying
home
because
the
president
publicly
called
you
an
“embarrassment
to
their
families,”
maybe
you
can
play
along
tonight,
too!
Unless
otherwise
noted,
take
a
sip
whenever
these
come
up….
Every
Absent
Supreme
Court
Justice
(one
sip
per
empty
seat):
Let’s
jump
right
in.
Trump
told
the
justices
who
ruled
against
his
tariffs
that
they
were
“barely
invited”
to
tonight’s
speech
and
that
he
“couldn’t
care
less
if
they
come.”
He
heaped
insults
upon
Chief
Justice
Roberts
and
Justices
Barrett
and
Gorsuch
for
daring
to
read
the
IEEPA
and
agree
with
the
conservative
conventional
wisdom
that
starting
trade
wars
is
bad
for
business.
It
was
a
stark
contrast
to
last
year,
when
Trump
personally
thanked
John
Roberts
for
rewriting
the
Constitution
to
allow
presidents
to
commit
crimes
as
a
treat.
Chief
Justice
Roberts
has
maintained
a
perfect
attendance
record
since
2005,
but
after
the
president’s
tantrum,
the
Court
as
an
institution
should
consider
a
total
boycott
to
maintain
its
dignity.
They
won’t
though…
Finish
your
drink
if
every
single
justice
boycotts.
Every
Supreme
Court
namecheck:
When
President
Obama
called
out
the
Citizens
United
opinion
for
inventing
a
new
constitutional
standard
that
opened
the
door
for
the
sort
of
corrupt
assault
on
democracy
that…
actually
came
to
pass,
he
spoke
about
the
Supreme
Court
as
an
institution,
rather
than
calling
out
any
individual
justice.
That’s
not
Trump’s
style.
As
we
saw
on
Friday,
he’s
ready
to
get
personal
whether
he’s
bashing
Barrett
or
praising
Kavanaugh.
Any
Other
Supreme
Court
Decision:
He
won’t
be
able
to
help
himself
from
talking
tariffs,
but
what
about
Roe
or
Dobbs
or
Obergefell?
Finish
your
drink
if
it’s
Marbury
v.
Madison.
Attacks
Lower
Court
Judges:
The
current
administration
loves
attacking
judges.
The
Justice
Department
is
explicitly
at
“war”
with
them.
A
former
senior
official
instructed
the
DOJ
to
say
“fuck
you”
to
the
courts.
All
this
has
translated
into
a
327
percent
increase
in
threats
against
federal
judges.
As
trial
judges
continue
to
act
as
the
constitutional
guardrail
—
with
judges
appointed
by
every
president
from
Reagan
on
putting
the
brakes
on
the
executive
—
they
represent
an
enticing
target
for
a
president
in
mid-rage
rant.
His
Fake
U.S.
Attorneys:
Among
Trump’s
many
beefs
with
lower
courts
is
the
fact
that
the
lower
courts
have
dutifully
applied
statutory
requirements
and
disqualified
his
fake
U.S.
Attorney
picks.
Alina
Habba
eventually
got
drummed
out
of
unlawfully
serving
as
U.S.
Attorney
in
New
Jersey.
Lindsey
Halligan
—
a
Florida
insurance
lawyer
whose
prior
prosecutorial
experience
was
exactly
zero
—
got
tossed
from
the
Eastern
District
of
Virginia
after
a
judge
ruled
her
appointment
illegal
and
then
she
tried
to
stay
on
the
job
before
another
judge
stepped
in
and
put
an
end
to
it.
Whenever
one
of
these
illegal
appointments
gets
legally
replaced,
the
DOJ
fires
that
replacement
(often
over
X).
If
they
come
up,
take
a
sip
of
water
and
pretend
it’s
a
real
drink.
Threatens
Lawsuit:
Trump
has
claimed
that
his
role
as
president
means
he
doesn’t
have
the
time
to
be
sued
—
national
security
requires
too
much
of
him
to
be
a
party
to
a
lawsuit.
Correction:
a
defendant
in
a
lawsuit.
Because
he’s
shown
no
reciprocal
hesitation
in
bringing
lawsuits,
including
against
the
federal
government
itself,
like
the
one
seeking
$10
billion
that
Attorney
General
Pam
Bondi
will
surely
defend
vigorously
on
behalf
of
American
taxpayers.
The
Dow
Jones:
As
Pam
Bondi
pleaded
with
Congress,
we
should
all
be
talking
about
the
Dow
being
over
50000.
Finish
your
drink
if
Trump
—
accurately
—
edits
this
to
49000.
Trump
Claims
Credit
For
Preventing/Ending
A
War:
While
no
one
seems
willing
to
ask
him
why
his
“day
one”
pledge
to
end
the
invasion
of
Ukraine
never
panned
out,
Trump
is
more
than
happy
to
take
credit
for
ending
wars
that
you
never
even
imagined.
He’s
claimed
to
stop
all
the
wars
with
France,
which
was
news
to
the
French.
He
used
to
take
credit
for
resolving
six
wars.
Then
it
was
eight.
How
many
will
it
be
tonight?
Who
knows,
but
you’re
sipping
for
however
many
it
is.
The
Nobel
Prize:
Relatedly,
take
a
healthy
sip
if
Trump
renews
his
fixation
with
the
Nobel
Peace
Prize,
an
award
that
he
wants
so
badly
he
issued
a
veiled
threat
to
Norway’s
Prime
Minister
because
he
didn’t
get
one.
He
has
since
accepted
the
physical
medal
from
Venezuelan
opposition
leader
María
Corina
Machado
—
even
though
the
prize
cannot
be
transferred.
After
years
of
snide
commentary
from
conservatives
about
“participation
trophies”
in
youth
sports,
Donald
Trump
now
shows
off
a
participation
trophy
from
a
game
he
didn’t
play.
Finish
your
drink
if
he’s
wearing
the
medal
tonight.
Commentator
Refers
to
the
State
of
the
Union
as
“Constitutionally
Required”:
A
know-it-all
move,
but
as
lawyers
we
can
appreciate
that.
Birthright
Citizenship:
He’s
going
to
talk
about
immigration
—
we
aren’t
trying
to
get
anyone’s
stomach
pumped
by
including
“ICE”
or
anything
like
that
in
this
game.
But
that
doesn’t
mean
we
shouldn’t
have
an
item
related
to
his
go-to
subject.
Trump’s
been
trying
to
end
birthright
citizenship
by
executive
order
since
day
one,
and
the
courts
have
so
far
stuck
to
the
Fourteenth
Amendment
saying
what
it
explicitly
says.
Bonus
if
he
ties
birthright
citizenship
to
attacking
an
Olympian.
Claims
He
Won
the
2020
Election:
Six
years
after
the
fact,
Trump
still
seems
interested
in
pretending
he
won
the
2020
election.
This
is
like
winning
the
Super
Bowl
and
spending
the
post-game
press
conference
arguing
about
a
regular
season
pass
interference
call
from
four
years
ago.
Go
ahead
and
finish
your
drink
and
make
sure
your
passport
is
up-to-date
if
he
says
this
is
why
he’s
going
to
seize
control
of
future
elections.
Legal
Enemies
List:
Take
a
sip
for
any
of
the
following
mentioned
by
name:
Merrick
Garland,
Jack
Smith,
Letitia
James,
James
Comey,
Fani
Willis,
or
any
of
the
January
6
Committee.
Bonus
sip
if
the
words
“lawfare”
or
“weaponization”
are
used
in
the
same
train
of
thought.
Jeffrey
Epstein:
How
do
you
set
odds
for
this
one?
Is
he
going
to
pointedly
avoid
the
document
releases
that
implicate
him
thousands
—
if
not
a
million
—
times
while
dragging
his
Attorney
General
Pam
Bondi’s
malicious
incompetence
under
a
spotlight?
Or
does
he
return
to
the
playbook
that’s
incredibly
served
him
so
well
for
years
and
call
his
deep
and
meticulously
detailed
ties
to
a
notorious
sex
trafficker
“fake
news”?
Honestly,
both
seem
entirely
possible.
Maybe
this
is
the
drinking
game
equivalent
of
a
Bingo
free
space.
You
are
local
counsel
in
a
case.
It’s
3
p.m.
You
just
got
the
brief
from
national
counsel
that’s
due
to
be
filed
in
two
hours.
It’s
60
pages
long
and
has
150
case
citations.
You
have
no
way
of
knowing
whether
they
are
all
to
real
cases
or
accurate.
What
do
you
do?
That’s
the
problem
that
GenAI
presents.
But
at
least
one
vendor
has
a
solution
and
it’s
not
all
GenAI.
The
Problem.
And
A
Solution.
There’s
an
old
saying
about
someone
who
has
more
hat
than
cattle.
It
refers
to
someone
who
is
talk
with
little
substance.
This
is
why
the
GenAI
volcano
is
poised
to
erupt:
too
much
talk,
not
enough
substance.
Melissa
Rogozinski
and
I
have
talked
a
lot
recently
in
our
Pompeii
series
of
articles
(see
links
at
the
conclusion
of
this
article)
about
the
often-unspoken
problems
and
challenges
AI
presents
to
legal
in
an
age
of
hype.
As
one
of
our
professors
used
to
say,
the
problem
is
the
problem.
And
the
problem
here
is
that
too
few
are
actually
trying
to
solve
problems,
and
too
many
are
hyping
AI
products
as
the
only
game
in
town.
That’s
why
Clearbrief
and
its
new
product,
Cite
Check
Report,
which
automatically
verifies
GenAI
outputs,
is
important.
The
headline
isn’t
just
what
Cite
Check
Report
does,
it’s
that
Clearbrief
adopted
a
process
and
attacked
a
problem
in
a
practical
way
that
actually
helps
lawyers,
paralegals,
and
legal
professionals.
Clearbrief’s
approach
is
not
more
GenAI
but
to
use
non-GenAI
tools
to
solve
one
of
GenAI’s
more
vexing
problems.
In
order
to
understand
why
we
are
excited
about
this
solution
and
why
it
may
work,
you
need
to
know
something
about
Clearbrief.
Clearbrief
Clearbrief
is
legal
tech
provider
that
has
a
track
record
of
listening
to
its
customers
and
providing
solutions
to
their
problems
and
pain
points,
much
as
Ki,
who
we
recently
discussed,
has
done.
Clearbrief
offers
AI
and
natural
language
tools
to
help
its
customers
draft
legal
pleadings
and
briefs
that
are
accurate
and
well
done.
Clearbrief
was
founded
in
2020
by
Jacqueline
Schafer,
a
former
litigator
and
leading
thinker
in
the
legal
ecosystem.
In
2022,
it
was
a
finalist
at
the
annual
ABA
TechShow
start
up
competition.
In
a
testament
to
what
it
does
and
how
it
treats
customers,
it’s
now
a
leading
provider
to
Am
Law
200
firms
as
well
as
smaller
firms
and
corporations.
Cite
Check
Report
It’s
no
secret
that
GenAI
tools
routinely
make
cases
up
or
cite
cases
for
the
wrong
propositions.
As
a
result
and
as
we
have
discussed,
one
of
the
leading
drawbacks
to
GenAI
tools
is
that
it
takes
lawyers
and
legal
professionals
more
time
to
verify
the
outputs
than
the
time
it
saves.
As
we
also
discussed,
this
disrupts
workflows
and
destroy
the
underlying
trust
that
is
the
foundation
of
how
lawyers
get
work
done.
Cite
Check
Report
checks
both
cites
and
factual
assertions
against
existing
major
data
bases
and
a
customer’s
internal
documents.
It
identifies
missing
sources
and
cases
and
corrects
formatting
errors.
It
scores
the
cited
material
based
on
accuracy
and
identifies
mismatches
between
quotes
and
what
is
actually
contained
in
the
case
or
source.
It
will
also
show
how
the
author
of
document
addressed
the
red
flags.
Importantly,
Cite
Check
Report
does
not
use
generative
AI,
but
what
Clearbrief
calls
classic
AI
to
do
this.
Because
it’s
not
relying
only
on
GenAI,
the
checks
are
accurate.
And
Clearbrief’s
tools
do
more:
they
eliminate
pain
points
by
catching
typos,
catching
slight
misses
in
quotes
and
factual
assertions,
and
automatically
doing
tedious
things
lawyers
and
paralegals
hate
doing.
Schafer
says,
“These
are
like
10
different
tools
that
litigators
normally
have
to
do
and
open
and
go
into
to
get
a
single
brief
filed.
And
this
is
the
unsexy
stuff
that
AI
doesn’t
care
about
as
much
because
it’s
hard.”
She’s
right
about
all
this.
Litigators
and
paralegals
spend
an
inordinate
amount
of
time
doing
stuff
they
don’t
want
to
do
but
which
has
to
be
done.
Stuff
that
they
didn’t
spend
time
in
school
and
learning
to
do.
This
is
what
AI
and
its
providers
should
be
about:
solving
problems
and
making
customers’
lives
easier,
not
harder.
An
Elegant
Solution
Schafer
and
her
crew
recognized
these
problems
and
developed
an
elegant
solution
like
Cite
Check
Report.
For
example,
Clearbrief
recognized,
as
did
we,
that
lawyers
cite
hallucinated
cases
for
a
variety
of
reasons:
tight
deadlines,
over
work,
overreliance
on
the
tools
provided.
To
ignore
this
practical
reality
is
akin
to
what
a
lot
of
AI
vendors
do:
ignore
practical
realities
and
limitations.
But
Schafer
and
her
team
got
there
by
listening
to
customers
and
then
critically
looking
at
what
GenAI
tools
can
and
can’t
do.
Schafer
told
us:
“I
go
back
to
our
customer
calls
practically
every
day.
It’s
what
grounds
me
and
tells
me
exactly
what
to
build.
I
know
what
problems
they’re
having.
We
are
in
the
trenches
with
them.
What
they
need
to
use
on
the
real
work.”
And
Schafer
has
some
thoughts
about
where
we
are
with
GenAI
as
well:
“I
feel
like
we’re
just
in
this
sort
of
AI
slop
era…One
of
the
biggest
things
that
I’ve
learned
from
being
in
the
trenches
and
developing
these
tools
are
that
there
are
just
certain
workflows
that
generative
AI
is
not
best
suited
for
because
of
the
uncertainty
element.
We
needed
a
way
where
there’s
no
possibility
of
hallucination
and
GenAI
creativity
coming
into
play
for
certain
types
of
tasks.”
The
Verification
Paradox
Cite
Check
Report
effectively
attacked
what
we
describe
in
Part
II
of
our
series
as
the
verification
paradox.
The
fact
is,
if
AI
is
used,
lawyers
and
legal
professionals
have
to
take
the
time
to
verify
each
and
every
AI
cite.
As
we
mentioned
in
Part
II
of
our
series,
this
verification
necessity
often
results
in
more
time
being
sent
than
is
saved
by
using
AI
in
the
first
place.
GenAI
may
cut
your
research
time
down
from
6
hours
to
30
minutes.
But
that’s
cold
comfort
if
you
have
to
spend
10
hours
checking
and
reading
all
the
cites
and
making
corrections.
The
GenAI
tool
isn’t
worth
it.
Cite
Check
Report
eliminates
the
paradox
because
it
can
very
quickly
and
automatically
do
the
cite
check
of
cases
and
factual
assertions
and
provide
an
analysis
of
the
magnitude
of
any
errors.
(The
latter
is
important
because
we
all
have
stretched
the
meaning
of
cases
before.
Cite
Check
tells
us
if
we
may
have
gone
too
far).
Cite
Check
Report
turns
the
paradox
on
its
head.
Instead
of
costing
more
to
have
GenAI
do
a
task,
Cite
Check
can
do
the
things
that
a
human
would
otherwise
have
to
do
in
checking
cites,
correcting
typos
and
finding
and
noting
slight
errors
and
even
misaligned
arguments
in
a
fraction
of
the
time.
Looking
at
the
Why
Every
day
we
hear
of
lawyers
using
AI
and
citing
cases
provided
by
AI
that
either
don’t
exist
or
don’t
stand
for
the
proposition
they
are
offered.
The
results
can
be
catastrophic:
fines,
loss
of
clients,
embarrassment,
even
malpractice
claims.
Yet
for
whatever
reasons,
lawyers
aren’t
saving
themselves
by
meticulously
checking
cites.
Clearbrief
recognizes
why
this
is
so.
In
its
refreshing
non-hyperbole
press
release
announcing
Cite
Check
Report,
it
articulated
the
reasons
in
a
way
I
have
addressed
before:
While
it’s
tempting
to
chastise
any
lawyer
who
fails
to
meaningfully
review
pleadings
before
signing,
the
reality
of
modern
litigation
is
that
a
single
filing
often
contains
hundreds
of
citations
to
both
facts
and
law,
and
many
hands
touch
a
complex
pleading
before
it
gets
filed.
Moreover,
generative
AI
mistakes
can
be
so
subtle
that
the
human
eye
can
easily
miss
them,
such
as
replacing
a
single
number
in
a
citation
such
that
the
cite
now
appears
to
be
from
the
court’s
own
jurisdiction
rather
than
another
circuit
court
where
it
is
not
binding
precedent.
Says
Schafer,
“Partners
are
being
sanctioned
and
suffering
reputational
damage
for
citation
errors
they
didn’t
personally
make.
We
built
the
Cite
Check
Report
to
give
them
what
courts
are
demanding:
documented
proof
that
they
satisfied
their
ethical
obligations
before
signing
that
pleading.”
The
Trust
Problem
Indeed,
it
was
precisely
this
problem
we
were
getting
at
in
Part
III
of
our
series:
the
work
process
in
legal
depends
heavily
on
work
being
done
by
someone
for
someone
else
.
This
could
be
an
associate
for
a
senior
partner,
a
national
counsel
sending
brief
to
be
filed
to
local
counsel
or
vice
versa,
even
a
law
clerk
for
a
judge.
Before
generative
AI,
that
work
was
by
and
large
trusted
by
the
recipient.
If
it
can’t
be
and
everyone
has
to
check
every
cite
tendered
to
them,
it
bogs
the
work
process
down
to
the
point
that
AI
becomes
useless.
As
Schaefer
puts
it,
“It’s
breaking
the
trust
that
we
have.”
And
practically
speaking,
Gen
AI
would
be
useless
for
certain
tasks
like
legal
research.
It’s
Not
Just
for
Lawyers
It’s
often
forgotten
that
much
of
what
goes
into
legal
work
is
not
performed
by
lawyers
but
by
paralegals
and
other
legal
professionals.
It’s
the
paralegals
who
have
to
check
cites.
They
are
called
on
to
do
the
timelines
and
run
other
checks
on
documents
and
pleadings.
But
like
the
lawyers,
it’s
not
work
they
went
to
school
to
do.
It’s
boring
and
tedious.
And
if
something
goes
wrong,
it’s
the
paralegal
who
ultimately
catches
hell.
So,
in
addition
to
helping
lawyers,
Cite
Check
Report
and
other
Clearbrief
tools
help
everyone
in
the
workflow
do
better
work.
To
use
their
skill
where
they
have
the
most
impact.
As
Schaefer
put
it,
“There’s
multiple
layers
in
legal
workflows.”
And
the
better
those
in
the
work
flows
are
at
what
they
do,
the
better
the
product.
More
Hat
Than
Cattle
We
need
more
thinkers
like
Schafer
who
offer
more
cattle
than
hat,
who
offer
more
substance
than
talk.
People
who
look
at
what
we
can
do
to
prevent
the
problem,
to
help
lawyers
save
themselves
seamlessly
and
easily,
who
make
using
AI
easier
and
more
practical.
That
would
be
a
refreshing
change
from
the
constant
“hat”
many
vendors
offer.
The
solution
to
GenAI
challenges
is
not
just
more
GenAI.
Sometimes
it’s
the
use
of
other
tools.
And
it
will
always
be
the
result
of
independent
thinking
instead
of
mass
hype.
Looking
for
a
way
to
solve
a
problem
or
get
rid
of
a
pain
point?
Stop
talking
to
vendors
who
lead
with
GenAI
capabilities.
Start
with
those
who
lead
with
solving
your
problems.
Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law.
Melissa
“Rogo”
Rogozinski
is
an
operations-driven
executive
with
more
than
three
decades
of
experience
scaling
high-growth
legal-tech
startups
and
B2B
organizations.
A
trusted
partner
to
CEOs
and
founders,
Rogo
aligns
systems,
product,
marketing,
sales,
and
client
success
into
a
unified,
performance-focused
engine
that
accelerates
organizational
maturity.
Connect
with Rogo
on
LinkedIn.
Donald
Trump
fired
me
because
of
my
fidelity
to
the
rule
of
law
instead
of
to
him.
I
view
it
as
a
badge
of
honor
for
standing
for
the
rule
of
law
and
the
Constitution.
The
events
of
the
last
year
have
disturbed
me
more
than
at
any
point
in
my
life.
I
don’t
believe
that
there
has
ever
been
a
moment
in
American
history
that
a
single
person,
the
president
of
the
United
States,
posed
a
real,
grave
threat
to
fundamental
values
that
we
all
share,
like
democracy,
the
rule
of
law.
— J.P.
Cooney, a
former
federal
prosecutor
who
served
as
principal
deputy
to
special
counsel
Jack
Smith
in
two
criminal
prosecutions
of
Donald
Trump,
in
comments
given
to
CBS
News.
He
intends
to
run
for
a
House
seat
in
Virginia,
if
the
state
redraws
its
congressional
maps.
Cooney
has
already
raised
more
than
$200,000
in
his
campaign
for
the
proposed
seat.
Staci
Zaretsky is
the
managing
editor
of
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to email her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.
When
Trump
gave
the
inaugural
address
for
his
second
term,
he
promised
to
bring
unity.
In
some
ways
he
has
—
the
American
public
is
pretty
united
in
not
liking
the
guy
according
to
the
last
Gallup
presidential
poll
made
public
before
they
mysteriously
decided
to
end
the
88-year-long
tradition.
In
others
respects,
he
has
broadened
divides.
Right-wingers
swallowed
the
“We
took
the
freedom
of
speech
away”
pill
with
relative
ease
because
their
mouths
were
preoccupied
with
licking
the
boot,
but
even
they
wiped
their
mouths
and
stood
on
their
rights
when
the
Administration
tried
to
argue
that
Alex
Pretti
deserved
to
die
because
he
had
a
gun
on
him
at
a
protest.
Those
little
crises
blew
over
quickly,
but
his
recent
temper
tantrum
over
the
6-3
in
Learning
Resources
v.
Trump
may
have
more
staying
power.
The
rationale
for
the
holding
was
simple:
the
Constitution
vests
Congress
with
the
power
of
the
purse
and
the
Executive’s
use
of
IEEPA
to
tariff
countries
at
whim
was
an
overstep.
Seems
simple,
but
Agent
Orange
took
the
holding
as
a
personal
attack
and
responded
by
openly
insulting
the
justices
that
didn’t
see
it
his
way
before
he
re-implemented
arbitrarily
tariffing
by
other
means:
While
the
legality
of
his
new
plan
of
action
is
ultimately
up
to
the
Court,
the
break
in
decorum
that
arises
from
the
President
calling
the
Supreme
Court
of
the
United
States’
justices
“disgrace[s]
to
the
Nation”and
“swayed
by
foreign
interests”
needs
to
be
addressed
by
someone.
The
ABA
has
taken
it
upon
themselves
to
remind
Trump
that
presidents
shouldn’t
openly
insult
members
of
a
branch
that
literally
exists
to
keep
the
other
branches
of
government
in
check.
They
had
this
to
say:
The
recent
remarks
by
the
president
of
the
United
States,
leveling
personal
criticisms
against
members
of
the
U.S.
Supreme
Court,
are
not
acceptable
and
cross
a
dangerous
line
that
threatens
the
safety
of
the
judiciary
and
our
judicial
process.
These
remarks,
following
the
Supreme
Court’s
ruling
on
tariffs,
referring
to
the
justices
as
“a
disgrace
to
our
nation”
and
“disloyal
to
the
Constitution,”
threaten
to
erode
public
confidence
in
the
judiciary.
While
judicial
opinions
are
always
subject
to
analysis
and
critique,
such
disagreement
must
be
voiced
with
respect
for
the
facts
and
the
law
and
must
respect
the
independence
and
integrity
of
the
courts.
Personal
attacks
against
individual
justices,
particularly
allegations
that
they
are
influenced
by
“foreign
interests,”
are
wholly
inappropriate.
Such
statements
risk
undermining
the
rule
of
law
and
the
public’s
faith
in
an
impartial
judiciary,
foundational
pillars
of
our
democracy
that
have
guided
our
nation
since
its
founding.
They
end
the
finger-wagging
with
a
call
for
leaders,
especially
Donald
Trump,
to
keep
their
bad
words
to
themselves.
The
language
is
a
bit
more
formal,
but
that’s
really
the
gist
of
it.
As
much
as
I
understand
and
respect
the
ABA’s
attempt
to
bring
decorum
back,
I
don’t
have
high
hopes
of
it
making
much
of
a
difference.
Before
the
President’s
outburst,
Chief
Justice
Roberts
has
said
very
little
about
the
President’s
frequent
badmouthing
of
judges,
excluding
the
one
or
two
times
that
Roberts
said
calling
for
their
impeachment
was
a
little
too
much.
Given
that
Trump
is
scheduled
to
give
the
State
of
the
Union
tonight,
we’ll
see
how
effective
the
ABA’s
admonishment
will
be.
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s
.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
is
learning
to
swim, is
interested
in
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected]
and
by
tweet
at @WritesForRent.
Litigants
trying
to
understand
their
legal
situation
with
the
help
of
AI
are
either
totally
fine
or
totally
screwed.
Welcome
to
the
modern
practice
of
law!
Earlier
this
month,
Judge
Jed
Rakoff
of
the
Southern
District
of
New
York
ruled
in
United
States
v.
Heppner
that
31
documents
that
a
criminal
defendant
generated
using
the
consumer
version
of
Anthropic’s
Claude
were
not
protected
by
attorney-client
privilege
or
the
work
product
doctrine.
Meanwhile,
Magistrate
Judge
Anthony
P.
Patti
of
the
Eastern
District
of
Michigan
heard
a
substantially
similar
discovery
dispute
and
concluded
in
Warner
v.
Gilbarco,
Inc.
that
of
course
the
other
side
can’t
seize
the
litigant’s
legal
work
just
because
it
went
through
a
large
language
model.
In
Heppner,
the
defendant
had
already
engaged
counsel
and
queried
the
AI
on
his
own
to
prepare
materials
for
a
meeting
with
his
lawyers.
By
contrast,
the
party
in
Warner
represented
herself
and
used
AI
to
prepare
her
own
case.
The
fact
that
Warner
acted
as
her
own
counsel
and
the
searches
directly
reflect
her
legal
strategy
goes
a
ways
toward
explaining
the
distinction,
but
it
doesn’t
go
quite
far
enough.
The
Heppner
decision
talked
about
AI
as
a
non-lawyer
third-party
whose
terms
of
service
acknowledge
that
inputs
may
not
remain
confidential.
Those
issues
don’t
change
just
because
the
party
is
acting
as
their
own
counsel.
Judge
Rakoff
identified
a
Claude
ping
as
a
third-party
disclosure.
Judge
Patti
drew
a
distinction,
based
on
the
D.C.
Circuit
in
United
States
v.
American
Telephone
&
Telegraph
Co.,
that
voluntary
disclosure
to
a
third
party
does
not,
by
itself,
waive
work
product
protection.
To
defeat
the
work
product
doctrine,
Judge
Patti
ruled,
the
party
has
to
disclose
the
material
directly
to
an
adversary
or
in
some
way
likely
to
reach
the
adversary’s
hands.
So
unless
you’re
litigating
against
Anthropic,
you
would
be
fine.
That’s
where
Judge
Rakoff’s
opinion
holds
to
the
letter
of
the
law
in
a
way
that
undermines
the
spirit
in
a
world
of
AI
tools.
The
Heppner
confidentiality
analysis
pointed
to
Anthropic’s
privacy
policy
and
found
no
reasonable
expectation
of
confidentiality,
because
the
company
asserts
that
it
can
collect
user
data,
train
models
on
it,
and
disclose
information
to
government
authorities
and
third
parties.
Therefore,
Rakoff
reasoned,
sharing
information
with
Claude
is
like
discussing
your
legal
strategy
in
a
crowded
room.
Except
every
major
cloud
service
has
substantially
identical
terms.
If
the
client
saves
emails
and
documents
on
Microsoft
OneDrive
or
something,
have
they
waived
all
protections?
If
the
client
uses
Gmail,
they
arguably
waive
privilege
under
this
reasoning.
The
Heppner
analysis
makes
sense
in
the
abstract,
but
practically
we
can’t
allow
our
new
cloud-based
reality
to
obviate
traditional
protections.
And
that’s
if
you
think
an
AI
product
is
a
third-person
at
all,
a
concept
that
Judge
Patti
wasn’t
sold
on:
ChatGPT
(and
other
generative
AI
programs)
are
tools,
not
persons,
even
if
they
may
have
administrators
somewhere
in
the
background.
Had
Heppner
taken
information
that
he
received
from
his
attorneys
and
gone
to
the
local
law
library
or
even
run
standard
Google
searches,
we
wouldn’t
be
having
this
discussion.
But
these
days,
Google
pumps
your
searches
into
its
AI
anyway…
does
that
make
a
client’s
internet
search
to
figure
out
that
legalese
the
lawyer
just
said
on
the
call
presumptively
discoverable?
That
can’t
be
right.
It
gets
even
worse
when
you
realize
CoPilot
is
baked
into
Microsoft
Office
and
Google’s
Gemini
is
embedded
in
Workspace.
The
notes
a
client
takes
of
an
attorney
meeting
are
traditionally
protected,
but
if
boilerplate
terms
of
service
for
cloud
applications
can
defeat
the
expectation
of
privacy,
all
bets
are
off.
These
are
previously
untested
applications
of
rules
that
were
pretty
clear
before
running
aground
on
the
jagged
rocks
of
technology.
As
the
Wagner
opinion
notes:
Additionally,
the
Court
agrees
with
Plaintiff
that
the
pursuit
of
this
information
is
“a
distraction
from
the
merits
of
this
case[,]”
and
that
Defendants’
theory,
which
is
supported
by
no
case
law
but
only
a
Law360
article
posing
rhetorical
questions
“would
nullify
work-product
protection
in
nearly
every
modern
drafting
environment,
a
result
no
court
has
endorsed.”
A
Law360
article?
If
it
were
an
Above
the
Law
article
maybe,
but
come
on.
It’s
worth
noting,
as
Jennifer
Ellis
observed,
Judge
Patti
handles
discovery
disputes
every
day
and
has
a
more
intimate
experience
with
the
ways
technology
plays
hell
with
the
letter
of
the
law.
Judge
Rakoff
doesn’t
spend
his
whole
day
on
these
complications.
As
these
cases
proliferate,
expect
to
see
a
divide
between
the
magistrate
judges
and
the
district
judges.
But
Heppner
is,
for
the
time
being,
the
go-to
standard
of
the
most
important
federal
court
in
the
country.
Every
Biglaw
firm
has
already
blasted
out
a
client
alert
ruminating
on
its
implications.
Clients
interested
in
AI
are
advised
to
“use
enterprise
tools,”
though
that’s
unlikely
to
resolve
the
underlying
problem.
Unless
(or
until)
the
AI
bubble
bursts
so
spectacularly
that
we’re
back
to
our
tried
and
true
tools,
the
question
remains
whether
courts
should
treat
AI
chat
history
as
the
equivalent
of
shouting
a
legal
strategy
in
Times
Square.
For
now,
the
proper
advice
is
that
clients
shouldn’t
risk
talking
about
their
cases
with
AI.
And
maybe
save
everything
locally.
And
maybe
don’t
run
internet
searches
with
Gemini.
You
know
what?
Maybe
just
don’t
use
a
computer
at
all.
If
there
was
ever
a
cautionary
tale
about
how
not
to
handle
the
optics
when
a
judge
becomes
a
defendant
in
the
very
system
they
oversee,
the
latest
episode
involving
Thomas
Ludington,
the
federal
judge
accused
of
driving
“super
drunk,”
checks
all
the
boxes.
The
Eastern
District
of
Michigan
announced
that
Ludington,
72,
has
decided
to
voluntarily
go
on
leave
pending
the
resolution
of
his
drunken-driving
charges
stemming
from
an
October
arrest
that
only
recently
came
to
public
light.
As
noted
in
our
prior
coverage,
the
judge
allegedly
blew
a
0.27
blood-alcohol
level
—
more
than
three
times
the
legal
limit
—
after
crashing
his
vehicle
and
after
he
was
asked
to
recite
the
alphabet
from
C
to
Q.
Reuters
received
the
following
comments
from
the
Eastern
District
of
Michigan
concerning
Ludington’s
leave:
“Since
the
Court
became
aware
of
the
charges,
it
has
taken
all
appropriate
steps
to
address
the
matter
consistent
with
its
obligations
to
the
public,
the
federal
judiciary,
and
of
course,
to
Judge
Ludington,”
the
district
court
said
on
Monday.
It
said
it
“recognizes
the
seriousness
of
this
matter”
and
that
Ludington
had
volunteered
to
take
a
leave
of
absence.
It
added
that
the
law
“accords
to
every
citizen
the
presumption
of
innocence,
due
process,
and
many
other
rights.”
The
official
court
statement
leans
heavily
into
boilerplate
about
due
process
and
presumption
of
innocence,
but
judges
are
not
immune
from
scrutiny.
When
officers
of
the
court
end
up
on
the
other
side
of
a
criminal
filing,
it’s
a
moment
for
the
judiciary
not
just
to
nod
to
due
process
but
to
demonstrate
it
in
practice.
We’ve
been
here
before
with
judicial
misconduct
stories
that
test
public
faith
in
the
system.
When
a
judge’s
behavior
becomes
the
news
—
especially
for
something
like
a
DUI
—
transparency
and
swift
accountability
are
expected
(and
often
demanded).
But
in
this
case,
there
was
a
delay
of
months
between
the
incident
and
widespread
reporting,
and
in
the
interim,
the
judge
continued
hearing
cases.
That
kind
of
lag
isn’t
great
for
public
confidence.
Ludington
—
a George
W.
Bush
appointee
—
has
pleaded
not
guilty
to
misdemeanor
charges
of
operating
a
vehicle
with
a
blood-alcohol
content
of
0.17
or
more
and
operating
while
intoxicated.
His
jury
trial
is
scheduled
for
May
8.
Staci
Zaretsky is
the
managing
editor
of
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to email her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.
An
in-depth
investigation
by
The
Arizona
Republic
has
found
that
Arizona’s
pioneering
program
allowing
nonlawyers
to
own
law
firms
—
a
reform
long
championed
by
access-to-justice
advocates
—
has
become
riddled
with
consumer
complaints,
legal
loopholes,
financial
conflicts
of
interest
and
inadequate
oversight.
In
a
series
of
investigative
articles,
Republic
journalist
Laura
Gersony
paints
a
troubling
picture
of
the
state’s
Alternative
Business
Structures
program,
which
the
Arizona
Supreme
Court
approved
in
2021
to
allow
nonlawyers
to
own
law
firms.
The
program
was
intended
to
make
legal
services
cheaper
and
more
accessible
for
Arizona
residents.
Instead,
the
Republic
found,
it
has
in
many
cases
attracted
profit-focused
investors
whose
firms
have
generated
a
trail
of
consumer
complaints
across
the
country.
The
findings
present
a
sharp
contrast
to
a
comprehensive
Stanford
Law
School
study
I
reported
on
last
June,
which
found
“remarkably
little
evidence
of
consumer
harm”
from
the
Arizona
reforms
and
similar
reforms
in
Utah.
That
study,
by
the
Stanford
Center
on
the
Legal
Profession,
reported
that
through
April
2025,
Utah
had
only
20
consumer
complaints
across
all
sandbox
entities,
and
that
the
two
Arizona
ABS
entities
that
faced
formal
disciplinary
action
involved
procedural
and
oversight
issues
rather
than
systematic
consumer
harm.
The
Republic
investigation,
however,
tells
a
different
story,
one
focused
on
specific
firms
and
the
on-the-ground
experiences
of
consumers
rather
than
aggregate
data.
Consumer
Complaints
and
Misconduct
In
the
first
installment
of
the
series,
“Arizona
lets
investors
own
law
firms.
Consumers
pay
the
price,”
Gersony
reports
that
the
ABS
program
has
become
an
epicenter
for
consumer
complaints,
with
clients
across
the
United
States
saying
they
were
mistreated,
misled,
or
—
in
the
words
of
a
lawsuit
against
one
firm
—
outright
“scammed.”
The
investigation
found
that
more
than
a
dozen
licensees
have
been
accused
of
harming
their
clients
or
violating
consumer
protction
laws.
Several
licensees
are
accused
of
targeting
vulnerable
people,
such
as
those
in
financial
distress.
Allegations
range
from
illegal
robo-calling
to
what
Alabama
prosecutors
have
called
a
deceptive
scheme
that
“commoditized”
car
accident
victims
in
one
of
the
poorest
states
in
the
country.
The
Republic
also
found
significant
conflicts
of
interest
within
the
program’s
oversight
structure.
Several
members
of
the
committee
that
advises
the
Supreme
Court
on
each
licensing
decision
also
make
money
counseling
the
firms
applying
for
the
program.
An
ethics
expert
told
the
Republic’s
reporter
that
they
should
step
down.
Despite
these
issues,
just
two
firms
have
received
mild
discipline,
according
to
the
Republic.
One
firm
may
lose
its
license,
though
the
decision
is
not
yet
final,
the
Republic
said.
Arizona
Supreme
Court
Chief
Justice
Ann
Timmer
stood
by
the
program,
Gersony
reports,
asserting
that
any
reform
will
have
both
benefits
and
costs.
She
took
issue
with
any
suggestion
that
the
court
should
do
more
to
police
misconduct
by
licensees.
“It’s
unrealistic
to
think
that
we
can
monitor
people
all
the
time,”
Timmer
told
the
Republic.
“We
don’t
have
the
capacity
to
do
that.”
At
least
half
of
the
Arizona
licensees
do
business
in
other
states,
according
to
the
Republic’s
review.
Only
one-tenth
of
the
firms
specifically
emphasize
Arizona
on
their
website
or
marketing
materials.
According
to
the
Republic,
firms
are
using
their
Arizona
licenses
to
operate
what
are
essentially
nationwide
practices,
including
some
that
function
more
like
call
centers,
farming
out
cases
across
the
country
while
doing
little
legal
work
themselves.
The
article
profiles
reality
TV
star
Joe
Gorga
of
“Real
Housewives
of
New
Jersey,”
who
owns
an
Arizona-licensed
personal
injury
firm
that
operates
nationwide
through
billboards
and
advertising
—
despite
having
no
connection
to
Arizona
and
not
being
a
lawyer
himself.
In
Alabama,
prosecutors
are
probing
an
Arizona-licensed
firm’s
connection
with
what
they
have
called
a
deceptive
scheme.
In
Texas,
a
woman
settled
with
another
Arizona
firm
she
accused
of
clogging
up
her
personal
cell
phone
with
illegal
robo-calls
and
automated
text
messages.
And
in
California,
a
federal
judge
accused
a
third
licensed
firm
of
trying
to
make
a
“quick
buck”
by
luring
authors
out
of
a
class-action
settlement
under
misleading
conditions.
At
a
Feb.
10
meeting,
court
regulators
backed
changes
that
would
tighten
the
ABS
program.
The
proposed
rules
would
restrict
firms
that
operate
as
call
centers
and
would
clarify
that
the
licenses
are
meant
to
benefit
Arizona
residents
and
companies.
Arizona
Attorney
General
Kris
Mayes
called
the
allegations
in
the
Republic
report
“serious
questions”
that
“warrant
a
greater
conversation
about
oversight
of
the
program
so
that
Arizonans
are
not
taken
advantage
of
or
otherwise
defrauded
by
bad
actors.”
Chief
Justice
Timmer
acknowledged
the
program’s
large
out-of-state
spillover
and
said
she
was
uncomfortable
with
the
way
some
firms
have
used
their
licenses.
She
also
said
she
had
already
directed
the
court
to
consider
whether
the
program
should
change
its
rules.
The
chair
of
the
oversight
committee
also
proposed
a
new,
draft
rule
that
would
require
the
licensees
to
“at
least
in
part”
benefit
Arizona
people
and
companies.
That
study,
authored
by
David
Freeman
Engstrom,
Natalie
A.
Knowlton
and
Lucy
Ricca,
represented
the
most
comprehensive
empirical
analysis
to
date
of
Arizona’s
and
Utah’s
legal
regulatory
reforms.
It
found
remarkably
low
rates
of
consumer
complaints
and
concluded
that
concerns
about
nonlawyer
ownership
compromising
legal
quality
or
professional
standards
had
not
materialized
in
any
systematic
way.
The
Stanford
researchers
reported
a
harm-to-service
ratio
in
Utah
of
approximately
1:5,869
based
on
reported
legal
services
delivered.
In
Arizona,
the
two
ABS
entities
that
faced
formal
disciplinary
action
involved
procedural
and
oversight
issues,
not
systematic
consumer
harm.
One
explanation
for
these
seemingly
conflicting
findings
is
that
the
Stanford
study
focused
primarily
on
formal
complaints
filed
through
official
channels
and
aggregate
data,
while
the
Republic
investigation
used
more
traditional
“shoe
leather”
techniques
of
interviewing
affected
consumers,
reviewing
court
records
and
examining
business
practices
in
detail.
Asked
about
the
Republic
series,
Natalie
Knowlton,
one
of
the
Stanford
researchers,
said
this:
“Our
methodology
in
the
Legal
Innovation
After
Reform
research
series
involved
reviews
of
initial
application
materials
(from
the
Arizona
ABS
program
and
Utah
regulatory
sandbox)
along
with
–
specific
to
the
consumer
harm
piece
–
publicly
available
information
from
regulators
in
the
two
states.
In
Arizona,
that
available
information
is
published
disciplinary
orders
against
ABS
entities
and
ABS
compliance
lawyers.
As
we
note
in
our
latest
report,
published
in
June
2025,
an
important
empirical
question
is
whether
these
innovations
are
resulting
in
unacceptable
harm
to
legal
consumers.
Allegations
of
consumer
harm
should
be
taken
seriously,
whether
resulting
from
actions
of
ABS
law
firms
and
their
lawyers
or
non-ABS
law
firms
and
their
lawyers.
But
I
have
yet
to
see
any
data
on
the
question
of
whether
consumers
experience
harm
by
ABS
law
firms
at
a
higher
rate
than
they
do
by
non-ABS
law
firms.”
It
is,
of
course,
also
possible
that
both
accounts
are
simultaneously
true
—
that
the
overall
rate
of
formal
complaints
remains
low
relative
to
the
total
volume
of
services,
while
at
the
same
time
specific
firms
are
engaging
in
practices
that
cause
real
harm
to
individual
consumers.
Notably,
the
Stanford
study
flagged
the
concentration
of
Arizona
ABS
entities
in
personal
injury
and
mass
tort
practice
areas
as
an
emerging
concern
—
precisely
the
area
where
the
Republic
found
the
most
troubling
behavior.
A
Crucial
Moment
for
Legal
Reform
Still,
the
Republic
investigation
arrives
at
a
time
when
the
topic
of
legal
regulatory
reform
is
being
debated
nationwide.
As
the
Stanford
study
documented,
Arizona’s
program
has
grown
significantly
from
19
authorized
entities
in
2022
to
136
as
of
April
2025.
Other
states
have
been
watching
Arizona
closely
as
they
consider
their
own
reform
efforts.
The
investigation
does
not
necessarily
argue
against
regulatory
reform,
but
it
raises
important
questions
about
the
adequacy
of
oversight
mechanisms,
the
need
for
consumer
protections,
and
whether
Arizona’s
particular
approach
—
with
its
lack
of
geographic
restrictions
on
where
licensed
firms
can
operate
—
is
best
model.
