Last week, we learned that Michael Cohen had put in for early termination of his supervised release. He’d been a good boy and dutifully testified against his former boss, so the request only made sense. Unfortunately, Judge Jesse Furman tried to look up the cases cited by Cohen’s attorney, David M. Schwartz of Gerstman Schwartz, and found them… lacking. Or perhaps more accurately, the judge didn’t find them at all because the cases didn’t exist.
The judge issued an order to show cause that Schwartz not be sanctioned and the fact pattern read like a redux of the earlier incident where lawyers used ChatGPT for legal research and ended up citing a bunch of fake cases. It also seemed destined to end the same way, with the lawyer offering a mea culpa and paying some sort of fine.
But there was one other wrinkle in the judge’s order that seemed an afterthought at the time, but might prove crucial.
Any such submission shall take the form of a sworn declaration and shall provide, among other things, a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.
Last night, Bloomberg Law News reported that Schwartz had hired his own lawyer and filed the response to the order to show cause under seal because “Schwartz’s response may require disclosure of attorney-client privileged communications.” Judge Furman granted the seal on a temporary basis, giving Cohen’s new counsel an opportunity to be heard.
There’s no obvious reason why fake case citations would implicate attorney-client privilege. Assuming Schwartz, or other attorneys at his firm, came up with these cases — potentially through ChatGPT — it doesn’t convert into a matter of privilege just because they let the client review it before it went out the door.
Unless the defense is that Cohen contributed these cases to the cause himself. This would not relieve Schwartz of his obligation to have checked the cases going out under his name, but it would not bode well for Cohen’s application based upon having learned his lesson. That said, Cohen’s new counsel in this matter brought these fake citations to the court’s attention in the first place. Everything involving Trump’s orbit serves to dull Occam’s Razor, but it’s hard to believe Cohen would throw Schwartz under the bus if he knew it would all come back on him.
We’ll see… Cohen’s response is due December 28 (with Schwartz allowed to file a reply on January 3).
Cohen’s Lawyer Says Privilege at Issue in Fake Citation Response [Bloomberg Law News]
Earlier: Former Trump Fixer Michael Cohen’s Latest Brief Filled With Fake Cases And We All Know Where This Story’s Going
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.