More on AI use and privilege from David Kluft: “Can a pro se party’s AI use be protected by the work product doctrine?” —

• “In a CO employment dispute, the parties got into a discovery dispute over the use of AI. The defendant wanted the pro se plaintiff to reveal what kind of AI he was using to review confidential material. The plaintiff claimed this information was protected by the work product doctrine.”
• “The Court distinguished U.S. v Heppner (SDNY), in which a represented criminal defendant used AI on his own and not at the behest of counsel, and therefore the work product protection did not apply to his chatlogs.”
• “By contrast, the Court found that in this case, there was no counsel on whose behest AI would be used so there was no separation between client and counsel, and in addition the civil rules afforded broader work product protection to parties than the criminal rules.”
• “Therefore, ‘some’ work product protection did extend to the pro se party’s use of an AI platform. However, the mere identity of the AI platform being used is not work product because it does not reveal the party’s mental impressions, case strategy and legal resource allocation.”
• “The Court issued a protective order restricting the use of AI to platforms that did not disclose confidential information to third parties and that allowed information to be deleted.”
• Decision: here.

“Washington court blocks insurer from using assigned malpractice claims against defense counsel” —

• “A Washington appeals court just told liability insurers they cannot sue their own retained defense counsel using malpractice claims assigned from their insured.”
• “The April 6 decision from the Washington Court of Appeals draws a firm line around a recovery strategy that some insurers have turned to when defense counsel’s alleged negligence drives up the cost of a claim. The ruling will likely prompt liability insurers operating in Washington to rethink how they manage risk when the lawyers they hire to defend their policyholders perform poorly.”
• “The dispute traces back to a personal injury at Vertical World, an indoor climbing gym. Michael Vandivere fell and was injured, allegedly because of a defective auto belay device manufactured by C3 Manufacturing LLC. Vandivere sued, and C3 turned to its primary liability insurer, Great American E & S Insurance Company, for a defense. Great American agreed to defend C3 but did so under a full reservation of rights – meaning it preserved the option to later deny coverage depending on how the facts developed.”
• “Great American retained attorney J. Scott Wood to handle C3’s defense. Wood initially practiced at Foley & Mansfield PLLP but moved to Sinars Slowikowski Tomasaka LLC in early 2022, and C3 retained Sinars as its new defense firm. At Sinars, Wood worked with attorney Christopher Furman on the Vandivere lawsuit.”
• “That is where things went sideways. Between April 2022 and April 2023, Furman visited two Vertical World gym locations – including the one where Vandivere was hurt – on what the complaint described as dozens of occasions. Neither Furman nor Wood updated C3’s discovery responses to disclose those visits, even though discovery obligations required it.”
• “Meanwhile, C3’s excess umbrella carrier, Houston Casualty Company, notified C3 that it was rescinding its $4 million policy, alleging that C3 had made material misrepresentations on its insurance application. Wood, who had already disclosed the existence of the Houston Casualty coverage to Vandivere, did not update C3’s discovery responses to reflect the rescission.”
• “Then came a conflict of interest. In April 2023, Wood left Sinars and joined Gordon Rees Scully Mansukhani LLP – the same firm that was representing Houston Casualty in its coverage dispute against C3. For about two weeks, Wood continued to represent C3 while his new firm simultaneously represented Houston Casualty on the opposing side. When the conflict was disclosed in May 2023, Wood and Gordon Rees withdrew from representing C3, leaving Great American scrambling to find new defense counsel just weeks before trial.”
• “New counsel quickly disclosed what prior counsel had not. The parties learned about Houston Casualty’s attempted policy rescission, and Vertical World informed Vandivere that Furman had visited its facilities more than two dozen times – all without disclosure. Vandivere moved for sanctions, and the trial court obliged, awarding monetary penalties and signaling that it would instruct the jury to draw a negative inference from C3’s discovery failures. Vandivere then took the position that the misconduct effectively obligated Great American to cover any judgment in full, regardless of its policy limit.”
• “Facing that pressure, Great American settled the case for $5 million – well above its $1 million primary policy limit – in addition to court-ordered sanctions against C3 and Sinars. As part of the settlement arrangement with C3, the insured assigned all of its legal malpractice and related claims against the defense lawyers and their firms to Great American.”
• “Great American then sued the defense attorneys and firms, asserting malpractice and breach of fiduciary duty both on its own behalf and as the holder of C3’s assigned claims. The superior court dismissed Great American’s direct claims but allowed the assigned claims to proceed.”
• “The Court of Appeals reversed on the assigned claims. The core of the ruling is that Washington public policy does not permit an insured to hand over its legal malpractice claims against defense counsel to the liability insurer that retained that counsel, at least not where there is a potential conflict between insurer and insured. A reservation of rights defense, the court reasoned, inherently creates that potential for conflict.”

“When should counsels disclose judges’ conflicts? Responsibilities addressed in new ABA ethics opinion” —

• “If a lawyer knows or should know information in a court proceeding that would likely warrant a judicial disqualification, they have an obligation to disclose it, even if the judge doesn’t, according to an ethics opinion released Wednesday by the ABA.”
• “Caselaw holds that lawyers have an overarching duty of candor to the courts, according to Formal Opinion 522, published April 8 by the ABA’s Standing Committee on Ethics and Professional Responsibility.”
• “‘Judges are expected to raise recusal questions themselves,’ according to the opinion, citing Rule 2.11 of the ABA Model Code of Judicial Conduct.”
• “However, if the judge fails to do so, the obligation extends to attorneys under Model Rule 8.4(d) of the ABA Model Rules of Professional Conduct, which prohibits attorneys from engaging in conduct ‘prejudicial to the administration of justice.’”
• “However, an attorney’s obligations to disclose information that might require a judge to recuse themselves is tempered by the attorney’s duty of confidentiality under Model Rule 1.6, which prohibits revealing client information without their informed consent.”
• “The formal opinion lists four illustrations, which focus on prior employment connections, campaign contributions, a spouse’s law firm involvement and a counsel’s business relationship with a judge’s family member.”
• Full opinion: here.