It’s an ethics twofer out of New York, New York (specifically the Southern District of New York) this week.

First, Trump lawyer Michael Cohen’s lawyer David M. Schwartz filed a motion to end his client’s supervised release early. In the motion paperwork, Schwartz cited three District Court decisions. Routine, right?

Regular readers of this blog and/or people who understand human nature know where this is going. These cases don’t exist at all, the court couldn’t find them, successor counsel for Cohen couldn’t find them,. and Schwartz has been ordered to show cause why he shouldn’t be sanctioned.

One provision of the order is interesting—the submission not only needs to detail what Schwartz did or did not do in citing cases that don’t exist, but “what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.” I suspect that if the response is anything other than “Mr. Cohen did not review the motion” or perhaps “Mr. Cohen gave the motion a cursory review and approved it but like any client trusted his lawyer to cite actual cases that are real,” his supervised release is going to continue.

While the facts are not out yet, Occam’s Razor suggests this is a ChatGPT issue similar to the one from the Mata case. Let’s see how he responds; hopefully, he will not do so by doubling down on his “research.” Remember, the bigger issue in Mata was the lawyer responding to the OTSC by going back to ChatGPT and asking it if it made up cases; the cover-up, in that case, was worse than the initial offense. Here, however, Schwartz had to have notice that ChatGPT and similar services are use-them-at-your-own-risk platforms, not reliable legal research tools.

The second matter involves what was a lower-profile case involving a large-dollar dispute between employer and former employees. According to Bloomberg Law, New York attorney Jeffrey Chabrowe, representing the employee defendants, filed “sexually suggestive” pictures of the plaintiff on the public docket. The court sealed the exhibits and required Chabrowe to show cause why he shouldn’t be sanctioned. Then, recently, Chabrowe responded to summary judgment by again filing embarrassing photographs, including some that were already sealed in August, into the public docket. Chabrowe was again ordered to show cause, and responded that he wasn’t “aware of any per se law or rule that precludes the filing of semi-nude photos or clothed picture of crotches on the public docket.” The judge, citing to “common sense, common decency and standards of professional responsibility,” fined Chabrowe $1,000.

Chabrowe is “right” in that there is no express provision in the Rules of Professional Conduct (or, to my knowledge, no express provision of the court rules) that prohibits filing of such pictures on a public docket. PACER has redaction policies, requiring that personal identifiers in all cases be redacted from filings, with some additional requirements for criminal case files; embarrassing photos are not discussed.

But, apparently, this lawyer was so preoccupied with whether or not he could, he did not stop to think if he should. So far, there is no indication that Chabrowe was referred for discipline; that said, when someone does something dumb in the public eye the referral often takes care of itself. If we are issue spotting– None of the articles I reviewed said exactly why these photos were relevant to the case (and of course, there are circumstances in which the photos would be relevant), but Model Rule 4.4(a) prohibits lawyers from using “means that have no substantial purpose other than to embarrass… a third person.” If the photos were not relevant, then they never should have been filed. If they photos were relevant, what purpose is there in filing them publicly, other than embarrassment?

New York and the Model Rules also prohibit “conduct that is prejudicial to the administration of justice.” In addition, depending on the specifics—and again, we don’t really know the specifics–this could be harassment on the basis of sex or some other protected characteristic under 8.4(g).

In Wisconsin, this might also be an SCR 20:8.4(g) “offensive personality” issue as well; New York and the Model Rules do not have this provision.

Also a problem (and I am seeing a theme here) is that Chabrowe didn’t knock it off after the first time the court told him not to file these things on the public docket. Model Rule 3.4 prohibits lawyers from knowingly disobeying “an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”

The moral? New York, New York can repeat, but lawyers who already know something is wrong should pivot, not echo.