Washington Lawyer - September/October 2024 - 44

DISCIPLINARY SUMMARIES
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tory approvals that would entitle them to
federal funds for providing high-speed internet
service in rural areas under the Federal
Communications Commission's Rural Digital
Opportunity Fund, Twomey violated Rules
1.3(c) (reasonable promptness), 1.4(a) (communication),
1.4(b) (failure to explain matter),
4.1(a) (false statement to third person), and
8.4(c) (dishonesty, fraud, deceit, or misrepresentation).
Specifically, Twomey knew that
one state would decline jurisdiction, but he
failed to make good-faith efforts to obtain a
formal declination in time to meet the deadline.
Twomey also failed to tell both clients
that he was not on track to timely obtain Eligible
Telecommunication Carrier (ETC) status
in four of the five states, which deprived
them of the opportunity to reassign the state
applications to other counsel and maintain
their ability to seek a deadline waiver, if necessary.
Also, Twomey gave affirmatively false
assurances to his clients regarding the status
of the ETC applications in those four states.
The Office of Disciplinary Counsel compiled the
foregoing summaries of disciplinary actions. Informal
Admonitions issued by Disciplinary
Counsel and Reports and Recommendations issued
by the Board on Professional Responsibility
are posted at www.dcattorneydiscipline.org.
Most board recommendations as to discipline
are not final until considered by the court. Court
opinions are printed in the Atlantic Reporter
and also are available online for decisions issued
since August 1998. To obtain a copy of a recent
slip opinion, visit www.dccourts.gov/court-ofappeals/opinions-memorandum-of-judgments.
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WORTH
READING
continued from page 39
paper's platform, her brash personality, and
feisty reporting style to engage the emerging
bad boys of tech in interesting interviews. Her
approach developed many thousands of devotees.
A
few comments in Burn Book suggest that
Swisher may yet turn her considerable talents
to more conventional law reform advocacy. She
tells readers that she has moved to Washington,
D.C., and may pursue more policy-type interests
responding to the bad big tech behavior
she has chronicled. If Swisher focuses on
reform of government policy and law, her
broad popularity and great journalistic skill may
mean that many people will pay attention.
Don Allen Resnikoff is a D.C. lawyer whose public
service includes 20 years as an antitrust litigator
with the Antitrust Division of the United States
Department of Justice and service as senior
assistant attorney general with the District of
Columbia Office of the Attorney General, where
he specialized in affirmative antitrust litigation.
SPEAKING OF ETHICS
continued from page 41
(GAI) products, which are not search engines
that accurately report hits on an existing and
constantly updated database. " GAI is not programed
[sic] to accurately report the content of
existing information in its dataset. Instead, GAI
is attempting to create new content . . . [t]hat
44 WASHINGTON LAWYER
* SEPTEMBER/OCTOBER 2024
is what the 'generative' in GAI means: the GAI
generates something new that has the properties
its dataset tells it the user is expecting to see. "
(Emphasis in original.)
4 As an example, the Legal Ethics Committee cites
the " privacy " policy of ChatGPT and its parent,
OpenAI, pursuant to which the provider, inter alia,
may collect personal information and use it to
" improve our Services and conduct research " and
" [t]o develop new programs and services. "
5 In LEO 388, the committee suggests that an
optimal resolution might be a " zero data retention
policy in which the provider of the GAI
retains neither the inputs nor the outputs of
the GAI's interaction with a particular user. "
6 Although obtaining the client's informed consent
to make a disclosure is a long-recognized exception
to a lawyer's duty to maintain client confidences
and secrets, LEO 388 concludes that
clients " should not be asked to consent to wide
ranging disclosures that could waive attorney/
client privilege or otherwise make their most
confidential and secret information available
for third parties to see and use. " This " includes
potential litigation adversaries and their counsel
who also have access to the same GAI. "
7 Comment [5] to Rule 1.6 does permit lawyers to
use hypotheticals, but only if client confidences
and secrets are fully protected. In the GAI context,
lawyers may try to protect client confidentiality
by anonymizing information, but LEO 388
urges caution in this regard because there is
greater likelihood that nontechnical lawyers may
not appreciate that " the GAI or one of its other
users will be able to connect the dots and link
the information the lawyer provided to the client
in question. "
8 Pursuant to Rule 3.3 (Candor to Tribunal), " a
lawyer shall not knowingly (1) Make a false
statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law
previously made to the tribunal by the lawyer,
unless correction would require disclosure of
information that is prohibited by Rule 1.6 . . . or
(3) fail to disclose to the tribunal legal authority
in the controlling jurisdiction not disclosed by
opposing counsel and known to the lawyer to
be dispositive of a question at issue and directly
adverse to the position of the client. "
Pursuant to Rule 3.4 (Fairness to Opposing Party
and Counsel), a lawyer shall not falsify evidence
or knowingly disobey an obligation under the
rules of a tribunal except for an open refusal
based on an assertion that no valid obligation
exists.
9 There are several tribunals that have adopted
such regulations, including the U.S. District
Court for the Northern District of Texas, which,
as discussed in LEO 388, requires all attorneys
appearing before the court to file " a certificate
attesting either that no portion of the filing was
drafted by generative artificial intelligence (such
as ChatGPT, Harvey.AI, or Google Bard) or that
any language drafted by generative artificial
intelligence was checked for accuracy, using
print reporters or traditional legal databases,
by a human being . . . . "
10 Rule 1.16(d); see also detailed discussion in D.C.
Legal Ethics Opinion 333 (2005).
11 In addition to the District of Columbia, several
other jurisdictions have recently issued either
practical ethical guidelines or ethics opinions on
lawyers' use of GAI.
http://www.dcattorneydiscipline.org http://www.dccourts.gov/court-of-appeals/opinions-memorandum-of-judgments http://www.dccourts.gov/court-of-appeals/opinions-memorandum-of-judgments
Washington Lawyer - September/October 2024

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