Amber G. Davis

The United States Court of Appeals 5th Circuit just announced it will not adopt a proposed rule specifically requiring disclosure and other requirements for attorneys who use AI as part of their practice. Upon reflection, and based upon a lot of negative feedback on the proposed rule, they recognized that existing rules already cover the same situations. Specifically, attorneys are enforceably required to stand behind the truthfulness and accuracy of court filings. However, the court admonished litigants and lawyers alike that “I used AI” will not be an acceptable excuse for violating existing rules! Here is the formal notice from the court: https://lnkd.in/gJWyEyxg For color, here also are some recent news articles on this announcement: * Reuters: https://lnkd.in/gJmjWSqv * Bloomberg Law: https://lnkd.in/gaVqCkHi And, since I have it at hand, for your convenience, here is the full statement by the court: “The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.” Personally, I think this court got it right. To the extent existing rules cover situations arising from use (or misuse) or AI, it is a good idea to apply those rules first before seeking to make more rules. In the event of demonstrable failures of existing rules, then perhaps it will be more practical to craft new rules to address the gaps that have been revealed. But it is, apparently, a very good idea to sound the alarm far and wide, loud and clear: sometimes generative AI provides incorrect or otherwise unsuitable information and it remains the duty of the attorney (among others) to carefully review and stand behind any work they pass forward. That concludes my public service announcement for today :-)

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✧General Counsel Support ⚖ Many businesses, whether one lawyers or more than ten, rely upon outside counsel from small business law firms to play the role of in-house counsel. We routinely serve as outside General Counsel for businesses in New York. Cuccinello Law PC. understands the importance of juggling the needs of the business with the law. Working closely with our clients, we are able to gain an in-depth understanding of their business activities and objectives. Because of this, we are able to provide focused, client-centered, and cost-effective advice and counsel on legal issues confronting clients on a daily basis. Our clients appreciate the adaptability and speed at which we move, and fee transparency. ✧Cuccinello Law P.C. offers flexible fee arrangements from hourly billing to flat-fee packages. #fractionalattorney #outsourcinglegalwork #legalconsulting #oncounsel #legaloutsourcing

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The only type of legal complaint that has more Sturm und Drang in it than that of pro se litigants is when the lawyers are suing on their own behalf. Here we have one step above that: lawyers suing the American Bar Association (ABA)! The allegation is that, because the ABA had a data breach, it must mean that the ABA failed to take proper security measures. While plaintiffs cannot trace it to the breach, they believe the breach caused them to receive more spam emails and one had a credit card number stolen. The EDNY court was not sympathetic. It held that the plaintiffs failed to show what specific security measures were required but not instituted. The court also didn't buy the argument that salting and hashing passwords was sufficiently secure. One takeaway lesson for companies from the case is to not specify in your Privacy Policy or Terms of Service particular security steps you will take unless you are definitely implementing those. I am surprised there was less of a res ipsa loquitur perspective from the court due the admission by all parties that a breach occurred.

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Attorney client privilege is a powerful tool that allows companies and clients to seek candid legal advice. It’s easy to enforce when a law firm is involved, but can easily be lost when in-house lawyers are asked to give both legal and business advice. If you’re asking for legal advice you think is privileged then you should be clear based on your actions: who you speak with (attorneys only), the setting (private office or open space) and the topic (legal advice, not business decisions). Many attorneys are adept at giving business advice (many are not) but blending the two together can jeopardize the privilege.   #privilege #attorneyadvice https://lnkd.in/gGbMru7e

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The June 3 CIPA ruling (denying Google's motion to dismiss re use of Google Analytics on tax prep web properties) provides some interesting insight into CIPA consent, specifically: "Google first argues that plaintiffs consented to the tax sites’ use of Google Analytics. Google argues that terms of service and privacy policies of which the Court has taken judicial notice establish that plaintiffs consented to the use of Google Analytics. Although these documents suggest that plaintiffs could have consented to Google’s alleged data collection, plaintiffs specifically allege that they did not. The mere existence of various terms of service and privacy policies cannot establish at this stage, where the Court must draw all reasonable inferences in plaintiffs’ favor, that any of the plaintiffs did in fact consent. Google’s consent arguments do not provide a basis to dismiss the Section 631 claim." In other words, the mere existence of a terms of service and privacy policy is not enough; you have to be able to prove that the plaintiff users actually consented.

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This can be a challenging market for law firm associates who were used to the strong bargaining power, huge signing bonuses, and plethora of open roles of the post-pandemic area. In this market, firms are in the driver seat. So we're seeing a lot of candidate panic: associates are blanketing the market with applications indiscriminately, applying to anything, anywhere that sounds interesting or pays top of market, and giving out their resume out to any recruiter without visibility into where they are being submitted. And the panic only grows when this strategy doesn't produce results. In general, firms don't take candidates seriously who are submitted by multiple recruiters at once, who submit for positions that are inappropriate for their skillset, or who apply to multiple roles within a short period of time. Instead, slow down. Research the firm and the group thoroughly. Make sure the role you are applying for is actually a fit or have patience to wait for a more appropriate one to pop up. Take care and attention to update your resume so that it clearly demonstrates your specific skillset. Vet multiple recruiters and choose one to be your search quarterback so you have the best representation possible. You really only get one bite at the apple with each firm, so make sure your search is driven by strategy, not by panic. #jobsearchtips #lateralhiring #jobsearch #lawjobs #amlaw100 #legalrecruiting #jobchange #amlaw

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Interested in learning more about the interplay between employment law and immigration law? Join us for a virtual lunch panel tomorrow! #immigrationlaw #employmentlaw

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Why aren’t things getting better at your #lawjob So…you’ve probably read a ton of advice posts during your time on LinkedIn All over the feed Experienced attorneys post step by step instructions on how to accomplish virtually anything you need to at work Yet none of these posts make a difference to you if you don’t implement them. Sometimes emotions get in the way of implementing—you fear what you’ll face when you take action Sometimes it’s a lack of motivation & accountability But here’s the thing You don’t want to wait until the problem is painful: You’re getting written warnings from your boss, You’re put in some remedial training program, or You’re fired from your job before you fix the problem. Start implementing the tips that make sense to you, in a way that you’ll be consistent with, so you make sure steady progress to mastering your job. And if figuring out your personal implementation method is a challenge, get help. I’ll help you personally, see below.

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Many NYC law firms are currently posting attorney job openings on LinkedIn, but it's important to remember that they are in direct violation of the NYS DOL Pay Transparency Law if they don't post the salary range. Not only is it required by law, but it's also important for attracting the best candidates. Many job seekers want to know the salary range before applying, and not providing that information can lead to a smaller applicant pool. Make sure you're following the law and being transparent about salary to attract the best talent for your firm. #NYCLawFirms #PayTransparency #JobOpenings

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I've talked with a lot of GCs lately, and most are saying that it's difficult for them to hire the right talent. While some companies are lucky enough to have a kick-ass employer branding expert, not every company does, and with lesser-known brands, lawyers aren't going to apply if they haven't heard of you. So, what can GCs do to raise awareness of your brand and the team? Treat your legal function as if it were a business of its own. You are the CEO of that business, and you are the one who needs to make sure it's been promoted properly. 🏢 Showcase Your Culture: Talk about it on LinkedIn. What makes your team unique, and why would people want to be a part of it? 🌟 Employee Stories: Get your current team to share what they like about their work. Apart from yourself, these folk are your biggest advocates. Employer branding gurus (Marian Jarzak, Katrina Gnatek, Yvonne Scheja), what else can a General Counsel do so candidates know who they are? GCs, what helped you attract the right talent to your team? #EmployerBrand #InHouseLawyer #LegalRecruitment

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I want to highlight someone today who has turned into a close friend, an insightful and empathetic member of the legal ecosystem, and someone you all would benefit from following. Let me introduce you to Foster Sayers. Foster is an experienced lawyer, a legal educator, and a someone who continues to lead in the legal industry through his unmatched mix of empathy and expertise. I value Foster's friendship and his leadership. He is a columnist for Contract Nerds and Vice President of Legal Operations for symplr. Check out his profile and his fantastic LinkedIn newsletter! I'm Colin, Director of Legal and Evangelist at Malbek - CLM for Enterprise. I am your guide to the world of legal tech.  Follow me, please consider purchasing my book, and subscribe to my LinkedIn Newsletter! #legaltech #innovation #law #business #learning

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Is a software company liable to the public when bugs in its software provided to the court system allegedly contribute to wrongful arrests and over-detention ? We'll find out the North Carolina perspective on the topic. The brief cited a few interesting cases raised by plaintiffs where: (i) a highway contractor working for the state was alleged to have a duty to motorists on the highwa when contractor was at work, and (ii) duties of contractors and architects to protect third parties from physical harm. Defendant Tyler Technologies notes that plaintiffs failed to cite cases about software companies, however that construes the concept of precedence too tightly. The defendant also cites other precedent for the idea that the duty of public officials to citizens is limited - however equating the software company to a public officials directly contradicts prior arguments that the software company was not in privity with citizens. I suspect operator-error and lack of oversight will prove most relevant in determining fault (if any) in this matter.

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Want to sound erudite? Begin your next memo or brief with: "The Federal Circuit’s decision that the PTO is not subject to notice-and-comment requirements when issuing rules pursuant to 35 U.S.C. § 2(b)(2) conflicts with this Court’s interpretive precedents applying the anti-superfluity cannon." What's this really about? Whether you have to tell the U.S. Patent and Trademark Office (PTO) your home address if you apply for a trademark as an individual and your physical office address as a business. I have bumped into this issue directly in the past year. Even if the Supreme Court agrees to hear the case, I expect there is a low likelihood that the PTO will change its requirements even if it is required to take notice and comment before the rulemaking because the PTO need only show that its rule is not arbitrary and capricious. The PTO will argue that checking domicile helps prevent fraud and that's a good enough (non-arbitrary and non-capricious) reason. So what's the solution for those who want to protect their physical address from the PTO? A giant trademark owning entity that licenses the trademarks out to the "real" trademark owners. It will be just like MERS for mortgages. You read it here first....

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Legal ops is a better career now for many.

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Curious about the impact of a judge’s ruling that an expert opinion didn’t meet #Daubert standards? David Ferrera explains how the decision reinforces a judge’s gatekeeping role under the recent amendments to Rule 702 of the Federal Rules of Evidence in Massachusetts Lawyers Weekly. Read more: https://loom.ly/PeVtEgI #litigation #experttestimony #admissibilitystandard

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📣Attention all attorneys: 📣 if you’ve never worked with a legal recruiter before and are wondering whether who you choose to work with actually matters, this post is for you. ALM columnist Dan Binstock recently conducted a survey among internal recruiters at AmLaw firms and top boutiques to find out how much of an impact your choice of recruiter has on your chances of landing your dream job. Here are the takeaways: ⭐ Reputation matters. Not all recruiters operate in the same way, and not all are equal. You want to make sure you’re working with a recruiter who is professional, respected in your legal market, and takes the time to do their research. Though in some respects finding a new job is a numbers game, when a recruiter gets involved, their search on your behalf should be much more streamlined. Beware of those who suggest submitting your resume to any and every open position, regardless of fit. ⭐ Remember – your recruiter is your first impression. A recruiter essentially serves as a middleman between you and any firms to which your materials are submitted, meaning they are the person representing you before you actually reach the interview stage. The impression your recruiter makes on those involved in hiring at a firm can make or break your candidacy there, regardless of how wonderful and professional you yourself might be. If you’re working with an obnoxious recruiter who is clearly uninformed about the firm and its needs, that’s likely going to cause the firm to wonder about your judgment in choosing to work with them. ⭐ If you aren’t comfortable with a recruiter, don’t work with them. As the saying goes, if something feels off, it probably is. While a good recruiter can be a tremendous help in the job search process, the wrong recruiter can make you look bad and hurt your chances of landing your dream job. If you don’t get the sense that your recruiter is taking the time to listen to you and understand your career goals, or if they seem to use the blanket-submit method with every candidate they work with rather than taking the time to research roles that are a good fit, keep looking. Have questions about working with a legal recruiter? Please feel free to reach out – I’m happy to give advice on what to look for in your recruiter search, or to have a candid discussion about the process I use with my candidates. Happy job hunting! amanda.foreman@lhh.com #legalrecruiting #jobsearch #tipsandtricks #lhhrecruitmentsolutions https://lnkd.in/gEVNRMpj

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And another clear, concise, unanimous statement of constitutional law by the U.S. Supreme Court: "THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined." Of more interest, we have a fairly pro-First Amendment court agreeing that there are limits to the First Amendment - this time in the trademark context. Held: The First Amendment does not give someone the right to use the name of another living person in a trademark without that person's consent. Why? [Cue Fiddler on the Roof]. Tradition. "[H]istory demonstrates that restrictions on trademarks have always turned on a mark’s content and have existed harmoniously alongside the First Amendment from the beginning. That relationship suggests that heightened scrutiny need not always apply in this unique context." The result: No you cannot trademark the phrase "Trump too small" for use on apparel and who knows what else.

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DFS Mediator Pro Tip Why should Mediators log on early to DFS Mediation Zoom Session? Logging on early to your DFS Mediation Zoom link allows the Mediator to: - Talk to party(s) as needed. - Help parties with connection issues by Troubleshooting. - Use Whiteboard in case there is no sound. How else does logging on early benefit Mediators in your experience? #mediation #mediationtraining #DFS #ADREXPO https://lnkd.in/eQrYbHhQ

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