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14 Mar 2025
Adam Greenberg, blog, Michael Neri, News Permalink

Partners At Coffey Modica Get To Be ‘The New Guy’ Together

March 14, 2025
Coffey Modica Partners, Michael D. Neri and Adam Greenberg, were featured in an article by Law360 on being the “new guys”.
By Elizabeth Daley | March 14, 2025

Business and insurance defense litigation firm Coffey Modica LLP has added two partners to its team in Tarrytown, New York, marking a homecoming of sorts for one, who worked as an associate under the firm’s founding partner, while allowing both veteran attorneys to simultaneously be “the new guy.”

Michael D. Neri, formerly of Pillinger Miller Tarallo LLP, told Law360 on Friday that he was looking forward to playing a mentorship role, similar to the one founding partner Michael W. Coffey played for him decades ago.

“I am looking to work with associates and mold them and help guide them in the right direction,” Neri said, remembering how Coffey taught him “how to think on your feet in court,” among other things.

During office renovations, Neri is sharing an office with fellow new recruit, Adam Greenberg, who is also a seasoned litigator with over 20 years of experience.

Greenberg, who hails from Harrington Ocko & Monk LLP, said he enjoyed having an office mate who was also sharing the experience of being the new guy.

“It’s nice to have somebody else who has also been doing this a long time. We bounce a lot of ideas off of each other,” said Greenberg, who graduated from Yeshiva University’s Benjamin N. Cardozo School of Law after completing his undergraduate education at Tufts University, where he majored in English.

Greenberg said transitioning from English to studying the law seemed pretty logical to him.

“I think it’s kind of natural. A lot of the law involves communication and writing,” he said, noting that he also enjoys the excitement and competitive nature of litigation.

“There’s a lot of challenges facing defendants. We are living in a very political age, and a lot of people are against corporations, and it makes it an uphill battle, when you get these cases and have to explain it all to the jury,” Greenberg said.

Both Greenberg and Neri have handled a broad range of litigation in state and federal courts. Greenberg said that labor law and construction accidents might be his specialty, if he had to be specific. However, one of his most interesting cases involved representing a church that was accused of illegally keeping the human remains of an employee — showing that his experience really does run the gamut.

Neri touted his experience broadly defending insurance companies, but counts the rapper DMX as one of his most interesting clients, whom he could never get on the phone.

“They said he caused an automobile accident, and whenever I looked him up online, he was all over the world causing automobile accidents. So we had to hurry up and settle that one,” Neri said, reminiscing about defending the rapper.

When Neri, who graduated from Thomas M. Cooley Law School and the University of Houston, isn’t arguing in court, he said he has a good sparring partner in his wife. Gina Longobardi was also an insurance defense attorney at Black Marjieh & Sanford LLP.

He has never litigated against her due to conflicts of interest, he said, but if he were, Neri joked that he wouldn’t stand a chance.

“I am afraid of what she would do to me. I haven’t won a fight in a long time, and I am sure I wouldn’t win that one either,” he said.

Neri may have better luck, however, in the fantasy baseball league that he is trying to get started at the office.

“It’s a fun environment, we are having a really good time,” Neri said, noting he was glad to have joined the firm, which has six offices with over 40 attorneys spread across the Tristate area, according to its website.

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02 Mar 2025
blog, Michael Coffey, News Permalink

Coffey Modica Taps International Business Leader to Serve as CFO

March 2, 2025
March 2, 2025

Leading insurance defense litigation firm Coffey Modica LLP has named Peter Gould, a veteran of the corporate and financial industry with more than two decades of experience working with billion-dollar national and international firms, as the law firm’s new Chief Financial Officer.

One of the fastest growing law firms in the United States, Coffey Modica has undergone a substantial organic expansion since its founding in 2021, approaching 100 staff members and six offices across three states in just under four years.

In his new role, Gould hopes to tap into his extensive experience in financial and general management, strategic planning, mergers and acquisitions, organizational development and growth to further scale up firm operations and reach.

“I have known Michael Coffey for a long time, and I believe in his vision for what a more effective legal services firm can and should be for both clients and top litigators,” said Gould. “I am proud to be part of that mission, and I look forward to working with the Coffey Modica team to achieve substantial, strategic growth across the country and around the world.”

Over the course of his career, Gould, a British Charted Management Accountant, has propelled corporate development and growth at billion-dollar companies through a combination of merger, acquisition and roll up strategies, as well as via organic growth. He previously served as President of the North America Flavor Division for 150-year-old French flavor and fragrance company Mane, as well as Vice President General Manager and CFO of the International Flavor Division at Sensient. At both companies, he sourced, negotiated and closed multiple new business line acquisitions across the U.K., France, Italy, Spain, Hong Kong, Japan, New Zealand, Mexico and the U.S.

Most recently, Gould served as President and founder of Stamford Capital LLC, which successfully provided advisory services focused primarily on assisting middle market companies with revenues of $10 million to $400 million plus in a range of industries throughout North America, Asia and Europe. In this role, Gould focused on Food Ingredients, Aerospace (Manufacturing and Services), Highly Engineered Manufacturing, Distribution and Services Industries.

“Peter Gould is an exceptional financial leader whose expertise and business acumen spans industries and continents alike. He is adept at identifying, managing and achieving a company’s KPIs and I have no doubt that together with Peter’s guidance, Coffey Modica will achieve greater market presence and an even larger platform to deliver its unique style of strategic legal counsel for insurers and the companies and business leaders they insure,” said Founding Partner Michael Coffey.

Coffey Modica LLP has offices in New York, New Jersey, and Connecticut and is one of the fastest-growing litigation defense firms in the nation. The firm specializes in defense litigation for insurance companies and businesses and leaders they insure, in a wide variety of fields including automobile, construction, healthcare, real estate and more.

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02 Jan 2025
blog, Michael Mezzacappa, News Permalink

AI, ESG Amid Biggest Worries Keeping GCs Up At Night

January 2, 2025
Coffey Modica partner, Michael Mezzacappa, was quoted in Law360, highlighting rapidly rising legal costs driven by a growing number nuclear verdicts.
By Sue Reisinger | January 2, 2025

The year 2025 has arrived for general counsel like a scary movie featuring monster environmental, social and governance risks, new technology demons that threaten to rip apart data privacy and security, and overlords who demand the legal department defend the company and save the day

In other words, it’s a new year, and general counsel are expected to be ready for anything. Law360 Pulse recently talked with some legal leaders about what’s keeping general counsel up at night in 2025.

The Conference Board, a nonprofit group that provides business research and advice, recently listed several risky issues for which executives need to “future proof” their companies. The issues included diversity, equity and inclusion policies; taking a political stance in public; and dealing with climate change, especially related to disinformation and misinformation.

On diversity, for example, the board warned that in 2025, DEI leaders “should prepare for a potential escalation in anti-DEI rhetoric, accelerated backlash, and additional DEI-related legislative and policy changes.” It advised general counsel and other corporate leaders to ensure clear messaging to employees and stakeholders, conduct a comprehensive review of their DEI programs and strategies, and be ready to adjust.

A different key concern arose for Ashton Yarnall, a lawyer who directs program development for executive event planner Consero, when she recently networked with legal leaders at a Consero general counsel forum. She found that artificial intelligence is top of mind for them in 2025.

“General counsel are particularly focused on establishing robust frameworks for AI governance, ensuring compliance with emerging AI regulations, and strengthening cybersecurity measures across their organizations,” Yarnall said. “The intersection of these issues — managing AI development while protecting sensitive data and maintaining cybersecurity — represents a complex challenge that requires GCs to balance innovation with risk management and regulatory compliance.”
Another hot issue, Yarnall said, was how the general counsel position continues to evolve, combining legal advocacy with the role of business adviser.

Legal leaders are searching for how to “seamlessly integrate legal considerations into business strategy while maintaining their professional independence and ethical obligations,” she explained.

Individual general counsel who talked with Law360 Pulse often raised issues more particular to their own businesses. For instance, Brian Dunn, the top lawyer at CrashPlan, a cloud-based computer backup service, said general counsel should worry about new regulations governing technology.

Dunn cited the European Union’s Digital Operational Resilience Act as a regulation “that could have significant implications” for U.S. financial institutions and data and digital service providers that serve EU customers or handle data linked to EU financial markets. The act establishes standards for managing and recovering from cyber incidents, system failures and operational disruptions.

“Failure to comply can result in fines, reputational damage, and loss of contracts with EU clients,” Dunn said. Fines can reach as high as 2% of a company’s annual global revenue, or more than $1 million for an individual within an organization.

Likewise, Klinton Miyao, general counsel at Human Interest Inc., focused on the issue closest to his business: retirement plan worries. Human Interest, based in San Francisco, provides full-service retirement plans like 401(k) plans to employers.

“Many of my fellow GCs, [chief legal officers] and small-to-medium-sized business owners are unaware of the compliance risk and cost center that their retirement plan presents to their organization,” Miyao said, citing new regulatory obligations and increased employee suits over excessive fees.

Michelle Reed, an outside counsel who often works with in-house legal teams, agreed with Yarnall, Dunn and others in seeing technology at the center of most general counsel’s nightmares. Reed, a Paul Hastings partner and co-chair of the data privacy and cybersecurity group, said their biggest worry lies in “the big game hunting data breaches that we have seen roll out in the last two years [featuring] threat actors sneaking in and pulling data out bit by bit, or those threat actors that are shutting down companies.”

Data breaches create “a huge stress for general counsel because there’s almost no way to prepare or prevent it,” she added.

One way legal teams can prepare, however, is to ensure “your incident response is top-notch and that you’re prepared because you have so many different rules now that govern cybersecurity and reporting requirements,” Reed said.

That means general counsel are often working to bring their companies back online safely while simultaneously figuring out how to respond to regulators, adding to the stress.

A second area of concern for legal leaders in 2025, Reed said, is the intersection of AI and privacy. “AI presents an incredible opportunity and companies are seizing on it,” she said, “but it also presents significant risks — privacy, cybersecurity, discrimination. When you plug in all of those risks, general counsel are struggling to figure out what is the proper governance.”

A third area worrying general counsel, according to Reed, is regulatory enforcement by state attorneys general, which she is seeing especially in the privacy and cybersecurity space.

In the past, she noted, big states like California and New York have been the most active enforcers. “But the landscape is changing significantly and very quickly,” Reed said. “Over the past year, we’ve seen Texas and Utah, for example, more than double the size of their enforcement staff at the attorney general level, focusing on privacy and cybersecurity. And we’ve seen a significant uptick in both investigations and enforcement.”

Reed predicted that more states will roll out such regulations in 2025 and companies should prepare to “face enforcement in a myriad of jurisdictions.”

Another outside counsel, Peter Lando, founding partner at Lando & Anastasi LLP in Boston, focuses on patent and related areas of the law. He said general counsel are concerned with keeping up with changing legislation and rules in administrative agencies.

For instance, Lando said, he met with clients in 2024 who were worried over the Federal Trade Commission’s proposed noncompete ban. The FTC backed off the ban, “but it’s certainly emboldened many states to put their own versions in place” for 2025, he said.

Arash Behravesh, a Lando client, is senior intellectual property counsel at Agilent Technologies, which is based in Santa Clara, California. Behravesh, who works remotely from Washington, D.C., spoke from his personal viewpoint and not on behalf of Agilent.

He said his first area of concern for 2025 — “and I think this is general for all corporations” — is budget restraints and the need for reduced spending.” This is especially true, he said, when trying to balance IP protection with cost pressures to reduce spending.

The next biggest in-house challenge at all companies, Behravesh said, is balancing a growing legal workload with limited resources.

“Most companies are trying to cut costs, and the easiest way to do that is to not hire [or replace] employees, which means more work for everybody else,” he explained.

A third area of concern for Behravesh involves mergers and acquisitions. “We try to acquire on average at least one growing company per year,” he said. “So one of the things that keeps me up at night is due diligence,” especially pertaining to troublesome IP portfolios that could end up in litigation.

And no general counsel nightmare story would be complete without a mention of rising legal fees. Axiom CEO David McVeigh recently said in a statement accompanying a research report on budgeting, “Beyond the research, clients consistently tell me they are at the end of their rope on law firm costs and annual rate increases.”

Michael P. Mezzacappa, now a partner and general counsel at insurance defense firm Coffey Modica LLP in Tarrytown, New York, has his own take on the problem. Previously he served five years as a named in-house counsel at Frontier Insurance Co. while working at the law firm Slevin Sold Neubardt Weissman Faillace Samberg & Mezzacappa.

“Corporations are always concerned with legal fees, right?” Mezzacappa asked. Unlike most general counsel, however, who tend to blame law firms for raising their rates every year, he blames the plaintiffs bar and higher verdict awards, especially against wealthy corporations.

“And to go to trial is just much more costly than it was 10 years ago,” he said. “I’m talking about exponentially more costly.”

Mezzacappa rages about plaintiffs attorneys who support unnecessary surgeries and extend workers’ compensation cases beyond what’s fair, along with judges with crowded dockets who rush cases and juries too eager to sock it to corporations, especially insurance companies.

“The plaintiffs bar is getting increasingly richer because the verdict values have gone up exponentially,” he said. “So that’s the biggest concern in my general counsel, defense attorney world.”

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20 Dec 2024
blog, Michael Coffey, News Permalink

Michael Coffey: Building success in litigation and community leadership

December 20, 2024

Discover insights from Michael Coffey, founding partner of Coffey Modica LLP, in Crain’s latest Quick Take. Coffey shares his journey building one of the nation’s fastest-growing insurance defense firms during the pandemic, his success in high-stakes litigation, and his dedication to community service. Learn how he leveraged innovative strategies, handled cases worth up to $250 million, and applied lessons from leadership roles in government and nonprofit work. Don’t miss this compelling conversation about resilience, growth, and giving back. Click to watch the full interview.

16 Dec 2024
blog, Evan Echenthal, Julia London, Megan Bryson, News, Tarrytown NY, Westport CT Permalink

Coffey Modica adds three attorneys to its insurance litigation team

December 16, 2024
December 16, 2024

The Westport-based law firm Coffey Modica LLP has recently added three litigators to its team of insurance litigation experts. Two are from Fairfield County and a third from Westchester County.

Coffey Modica, with six offices including their brand-new headquarters in Westport, recently hired Partner Megan Bryson of Fairfield, Partner Evan Echenthal of Chappaqua, New York, and Counsel Julia London of Ridgefield. The firm serves clients in Connecticut, New York, and New Jersey.

Bryson, who works in the firm’s Westport headquarters, has more than 15 years of experience in complex litigation and insurance defense. With bar admissions in Connecticut and New York and multiple federal courts, Bryson brings experience in professional liability, employment law, commercial litigation, and aviation matters.

Echenthal, who works out of the firm’s Tarrytown office, has more than two decades of experience, specializing in construction and vehicle accidents, liability, and property damage.

London, who served as an assistant district attorney at the New York County District Attorney’s office, has provided her expertise on a variety of cases including violent crimes, identity theft, and sexual assault. She works in the firm’s Tarrytown office.

With more than 15 years of experience in prosecution and defense, she specializes in medical malpractice defense, negligence claims, and general and products liability litigation, focusing on healthcare providers, hospitals, and nursing homes.

For more than 30 years, the partners at Coffey Modica have represented the country’s most prominent businesses and insurance companies and have built remarkable reputations and practices by delivering optimal resolutions unique to each client and matter. Its practice areas are focused on liability claims, excess property and casualty, medical malpractice, and nursing.

11 Dec 2024
blog, Michael Coffey, News, Westport CT Permalink

Law Firm Moves Into Historic Westport Building

December 11, 2024
Coffey Modica LLP, a national defense litigation firm, recently moved to 65 Jesup Road in Westport.
December 11, 2024

Coffey Modica LLP, a national defense litigation firm representing prominent business and insurance companies in liability claims, excess property/casualty, medical malpractice, nursing, and other professional industries, has opened a new office in Westport that will serve as the firm’s Connecticut headquarters.

Located at 65 Jessup Road, the 4,000-square-foot building sits in the heart of Westport’s Jessup Road Historic District, within walking distance of the vibrant downtown, including The Westport Library, Westport Police Department, and the historic Jesup Green. Near Imperial Avenue, it has come to be known as the “Godillot Carriage House.”

Building features include a brick-paved front patio and two porches, including one that faces Dead Men’s Brook, which runs through the side of the property.

The new offices are designed to accommodate 16 attorneys and staff.

“This historic building is truly located in the heart of downtown Westport. As many of our partners and clients have deep, entrenched roots in Fairfield County, establishing Coffey Modica’s Connecticut headquarters in a venue so central to the city of Westport was a priority for us,” said Founding Partner Michael Coffey.

Built in 1882, 65 Jessup Road was listed on the National Register of Historic Places by the U.S. Department of the Interior in 1977. The structure is considered the best example of Stick style architecture in Westport.

Revolutionary Links to Westport’s Founding

The land where 65 Jessup Road now sits belonged to the family of local Revolutionary War surgeon Dr. Ebenezer Jesup and his son Major Ebenezer Jesup, a prominent local grain trader. Members of the influential family date back more than 300 years in the community and were instrumental in changing the town’s name from Saugatuck to Westport.

Among prominent descendants was Morris Ketchum Jesup, an American banker and philanthropist who was president of the American Museum of Natural History, the YMCA New York, and was knighted by Russian Tsar Nicholas II. He was a major underwriter of early expeditions to explore the Artic, Alaska, Siberia, and Greenland, and had a hand in creating New York State’s Adirondack Park, while helping the Tuskegee Institute and George Washington Carver bring mobile classrooms to poor farming communities. In 1884 he donated his mansion as the parsonage for the Saugatuck Congregational Church and endowed what is today the Westport Public Library.
65 Jessup Road was later owned by Julia Godillot, the daughter of a Westport grocery merchant and the wife of a French importer, before being sold and converted in the 1920s. Other subsequent tenants include the Town of Westport Board of Education.

Law Firm Partners with Deep Local Roots

Coffey Modica Founding Partner Michael Coffey formerly served as President of the Norwalk City Council from 2005 to 2007, and Norwalk Fire Commissioner from 2007 to 2013, as well as Zoning Commissioner for the City of Norwalk from 2014 to 2016. He served for six years (2007 to 2012) as Senator Lieberman’s appointee to the U.S. Military Academy Selection Committee for Annapolis, West Point, and the U.S. Merchant Marine Academy. Coffey was among only four Connecticut elected officials who endorsed the sitting senator after he changed parties and ran in 2006 for reelection and won as an Independent.

After leading the East Coast operations of a California-based litigation firm, in 2021 he formed Coffey Modica, a firm that in less than 30 months has already expanded to employ more than 70 attorneys and staff across six offices on the East Coast. It is one of the fastest-growing legal practices in the nation, with success attributed not only to its commitment to quality and values, but to leveraging modern efficiencies allowing their lawyers to spend more time in practice and litigating, and less time mired in bureaucratic red tape and paperwork.

The firm’s client roster includes 12 of the 20 largest global insurance companies, entrusting its attorneys with cases far in excess of $10,000,000. Handling complex litigations and parachuting into trials across the country has helped the firm manage countless intricate legal challenges.

Mr. Coffey holds the esteemed designation of an ABOTA (American Board of Trial Advocates) trial attorney, a selective credential placing him among the most outstanding trial attorneys in the U.S.

Coffey Modica LLP represents defendants in high-profile, high-exposure matters across many disciplines and industries around the country. Known for being aggressive trial attorneys and litigators, Coffey Modica resolves matters on behalf of its clients with the most cost-effective resolutions aligned with their short- and long-term business goals and culture.

14 Nov 2024
blog, Michael Coffey, News Permalink

The Trump administration and its impact on social inflation

November 14, 2024

As the insurance landscape braces for shifts under the upcoming Trump administration, Michael Coffey, founding partner of Coffey Modica LLP, shares expert analysis on what lies ahead. From evolving regulatory policies to the growing effects of social inflation, Coffey unpacks the challenges and opportunities that insurers, risk managers, and legal professionals must navigate in 2025 and beyond.

10 Oct 2024
blog, Michael Coffey, News Permalink

Hurricane Milton’s destruction

October 10, 2024
Coffey Modica founding partner, Michael Coffey, was featured in The Real Deal, offering expert insight on the recent crane collapse in St. Petersburg caused by Hurricane Milton.
Oct 10, 2024 | By Lidia Dinkova and Katherine Kallergis

In the wake of Hurricane Milton, developers and contractors in the Tampa Bay area are evaluating damage at project sites, calling insurers and preparing to resume construction work.

Milton made landfall as a Category 3 storm with winds of 120 miles per hour on Wednesday night in Siesta Key in Sarasota County, flooding streets and homes, and spawning tornadoes as far away as western Palm Beach County. More than 3 million homes and businesses lost power. At least 12 people are confirmed dead.

The storm came nearly two weeks after Category 4 Hurricane Helene, which hit Florida’s Big Bend. But as Milton took aim at the Gulf Coast and then crossed the state, it plowed through a much more developed and populated region. Early predictions estimated losses of up to $175 billion in the Tampa Bay area due to Milton.

In St. Petersburg, where winds reached over 100 miles per hour, a crane at the construction site of developer John Catsimatidis’ luxury Residences at 400 Central condo tower partially collapsed and slammed into the office building across the street, leaving a hole in its side and bricks scattered. The offices at 490 First Avenue South house the Tampa Bay Times newspaper and other businesses.

“The good news is that the only thing that was hurt was a few bricks. No human beings were hurt,” said Catsimatidis, founder of New York-based Red Apple Group.

The 46-story, 301-unit condo tower will be the tallest building in St. Petersburg at 515 feet. It has three construction cranes reportedly rated to withstand winds of up to 110 mph.

The cranes were “fully secured,” Catsimatidis said, adding that work will resume with the two remaining cranes. “Bottom line is let the insurance companies sort it out. It’s going to be the insurance company for whoever put the crane up there.”

Attorney Michael Coffey, who has worked on construction crane accident cases, said the St. Petersburg collapse likely will prompt investigations by federal, state and local authorities. Among the inquiries will be whether the site should have used cranes made to withstand more than 110 mph winds.

“One of the questions would be who made the call that that level sufficed. Was that an appropriate crane to have been up on one of the largest construction sites in western Florida in the middle of hurricane season?” said Coffey of New York-based Coffey Modica.

Development has boomed in the Tampa Bay region in recent years. In addition to Catsimatidis’ luxury condo tower, South Florida developers Related Group and Mast Capital are active along Florida’s west coast.

Miami-based Related assessed impacts from Milton in the greater Tampa Bay area on Thursday. Related’s founder, billionaire Jorge Pérez, said this summer that he plans to spend upwards of $3 billion on projects in the Tampa area.

“Fortunately, early reports show very limited damage across projects like The Ritz-Carlton Residences, Rome Yards, and West River,” a Related spokesperson said.

Related, led by Pérez and his sons Jon Paul and Nick, broke ground on the second tower at the planned Ritz-Carlton Residences in November. The construction site at 3101 Bayshore Boulevard overlooks Hillsborough Bay.

Rome Yards and West River are both mixed-income housing developments in west Tampa.

Even if damage on project sites is minimal, developers and general contractors have a lot of work to do, said Oscar Seikaly, CEO of Miami-based NSI Insurance Group. Damage at construction sites usually is from water intrusion, which could lead to mold and mildew.

Contractors and developers have to document the issue, as well as document that it was fixed and the precautions they will take to avoid the same problem in the future.

“There’s a lot of mitigation that has to be done even if you have a small water claim,” Seikaly said. Otherwise, those water issues could cause bigger problems for buyers of those units down the line.

Also in St. Petersburg, Hurricane Milton tore through Tropicana Field Stadium’s fiberglass roof. The Tampa Bay Rays, a Major League Baseball franchise, previously announced plans to replace Tropicana Field with a new stadium as part of a larger mixed-use development. Tropicana was reportedly built to withstand winds of up to 115 miles per hour.

Though South Florida was largely spared from Milton, parts of the tri-county region suffered tornadoes. Video footage shows damage from a tornado in Avenir, a new master-planned community southeast of Lake Okeechobee, as well as a tornado that touched down in Wellington. Damage was also spotted in south Miami-Dade County and western Broward County.

Just north of South Florida in St. Lucie County, a tornado outbreak killed at least six people in the senior housing community of Spanish Lakes Country Club near Fort Pierce, according to reports.

Milton came as Florida residential and commercial property owners have been reeling from skyrocketing insurance premiums. The state’s vulnerability to hurricanes and storm surge led some carriers to opt out of providing coverage in Florida, leading to less competition among insurers and ever-increasing premiums.

Seikaly, of NSI, said he does not expect Milton will necessarily further raise builders liability premiums, or those for flood and wind policies at construction sites. But in light of the partial crane collapse, insurance for crane operators could become more challenging in South Florida where only half a dozen insurers are willing to cover the risk. The tri-county region’s dense development makes real estate damage from a crane accident more likely.

“It will make insurance companies take a much tougher look when they are asked to quote a crane company,” Seikaly said. “A crane in Brickell, I would have sleepless nights because no matter how the crane moves, it would hit something.”

 

11 Sep 2024
blog, Mostafa Soliman, News Permalink

Ethical Rules for Using Generative AI in Your Practice | Model Rule 1.6: Confidentiality

September 11, 2024
Coffey Modica’s Mostafa Soliman, Counsel, was featured by Fishman Haygood for his insights on ChatGPT.
September 11, 2024

At the risk of stating the obvious, we are still in the early days of what we believe to be an “AI Revolution” in the way that goods and services, including legal services, are and will be provided. Which means that we do not, at this point, have much in the way of formal guidance.*

With that preface, in this series we will examine some of the Professional Rules[i] and other legal requirements that could potentially be implicated by a law firm’s use (or non-use) of ChatGPT or other Generative AI (GAI). Last time, we discussed the importance of establishing, periodically reviewing, and enforcing internal policies and protocols regarding the use—and/or limitation and restrictions on use—of ChatGPT and other AI products by lawyers and other employees at the firm. One reason for this precaution is the issue of confidentiality, which brings us to our fourth rule.

Model Rule 1.6: Confidentiality

Perhaps the most serious concerns that have been raised regarding the use of ChatGPT and other AI systems surround the security of privileged and other legally protected information. Under Model Rule 1.6, an attorney is not only generally prevented from disclosing “information relating to the representation of a client,” but is also charged with an affirmative duty to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”[ii]

Using ChatGPT to analyze a client’s legal documents that contain privileged or other confidential information can pose a risk that such information could be misused or exposed.[iii] Generative AI programs that are ‘self-learning’ continue to develop responses as they receive additional inputs, adding those inputs to their existing parameters. The use of these kinds of programs creates a risk that client information may be stored within the program and revealed in response to future inquiries by third parties.[iv]

In March of 2023, for example, there was a data leak at ChatGPT that allowed its users to view the chat history titles of other users.[v] Outside of such data breaches, chat history can be accessed and reviewed by ChatGPT or other Generative AI company employees and may also be provided to third-party vendors and affiliates.[vi]

In addition to attorney-client privileged information and/or work product, one also must be cognizant of other legal protections and requirements that might apply to client information, including:

  • HIPAA (Health Insurance Portability and Accountability Act of 1996)[vii]
  • The European Union’s General Data Protection Regulation (GDPR)[viii]
  • The California Consumer Privacy Act (CCPA)[ix] (and/or other State Privacy Laws)
  • Trade Secret Protection[x] (which may be compromised by “disclosure” to the AI service)
  • Contractual Non-Disclosure Agreements and Obligations

The Florida Ethics Opinion regarding the use of Generative AI advises that existing ethics opinions regarding prior technological advances (such as cloud computing, electronic storage disposal, remote paralegal services, and metadata) have “addressed the duties of confidentiality and competence and are particularly instructive” and generally conclude that a lawyer should:

  • Ensure that the provider has an obligation to preserve the confidentiality and security of information, that the obligation is enforceable, and that the provider will notify the lawyer in the event of a breach or service of process requiring the production of client information;
  • Investigate the provider’s reputation, security measures, and policies, including any limitations on the provider’s liability; and
  • Determine whether the provider retains information submitted by the lawyer before and after the discontinuation of services or asserts proprietary rights to the information. [xi]

The California Practical Guidance for the Use of Generative Artificial Intelligence reinforces this responsibility and further suggests that a lawyer who intends to use confidential information in a generative AI solution should anonymize client information as well as “ensure that the provider does not share information with third parties or utilize the information for its own use in any manner, including to train or improve its product.”[xii] These measures should include reviewing consulting with an IT professional as well as reviewing the program’s Terms of Use.

In the Terms of Use dated March 14, 2023, OpenAI advised that:

If you use the Services to process personal data, you must provide legally adequate privacy notices and obtain necessary consents for the processing of such data, and you represent to us that you are processing such data in accordance with applicable law. If you will be using the OpenAI API for the processing of “personal data” as defined in the GDPR or “Personal Information” as defined in CCPA, please fill out this form to request to execute our Data Processing Addendum.[xiii]

The updated Terms of Use, promulgated in November of 2023 and effective as of January 31, 2024, simply state that:

You are responsible for Content, including ensuring that it does not violate any applicable law or these Terms. You represent and warrant that you have all rights, licenses, and permissions needed to provide Input to our Services.[xiv]

ClaudeAI’s Acceptable Use Policy similarly prohibits users from “violating any natural person’s rights, including privacy law” as well as “inappropriately using confidential or personal information.”[xv]

Natalie A. Pierce and Stephanie L. Goutos of Gunderson Dettmer Law Firm note that challenges to the responsible use of GAI systems are actively being addressed by legal entities, from academic institutions to law firms, through methods such as “employee training, AI governance policies, and the formation of specialized AI task forces.” The authors emphasize the importance of recognizing existing countermeasures that aim to help mitigate risks associated with confidentiality concerns, while the framework for a lawyer’s responsible AI use continues to develop. For example, OpenAI’s April 2023 policy change allows users to disable chat history in ChatGPT. The company’s August 2023 update introduced an “enterprise-focused model that offers enhanced security protocols, sophisticated data analysis, and bespoke customization capabilities.” As the technology in Artificial Intelligence continues to evolve, Pierce and Goutos predict that a “majority of law firms and organizations will adopt custom experiences powered directly into their own applications, as well as prohibit the input of any confidential information into public GAI tools, which will substantially alleviate breach of confidentiality concerns.”[xvi]

A lawyer’s affirmative duty to reasonably communicate with his or her client is also implicated in this context. Model Rule 1.4 requires an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished” and to explain relevant matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” [xvii] To the extent use of ChatGPT and other AI services in connection with the representation of a client is contemplated, it is therefore important to discuss the potential risks and benefits with the client, so that an informed decision can be made.[xviii]

 

Explore Mostafa Soliman’s analysis in Navigating the Ethical and Technical Challenges of ChatGPT (2023), available through the New York State Bar Association.

06 Sep 2023
blog, Mostafa Soliman, News Permalink

The Constitution Has Entered the ‘Chat’: AI Violates the Right to Effective Assistance of Counsel

September 6, 2023
Coffey Modica Counsel, Mostafa Soliman, was quoted in Legal Drive, offering insight on the ethical use of generative AI.
By Kerianne Morrissey | September 06, 2023

Artificial intelligence (AI) has permeated various industries and professions because the technology has many benefits. The legal profession has slowly adopted this kind of technology as an aid to tasks such as research and writing. Many commentators have discussed the ethical considerations of using this technology in the context of the Model Rules of Professional Conduct. Nicole Yamane, Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands, 33 Geo. J. Legal Ethics, 877, 878 (2020); Augustus Calabresi, Machine Lawyering and Artificial Attorneys:Conflicts in Legal Ethics With Complex Computer Algorithms, 34 Geo. J. Legal Ethics 789, 797 (2021); Amy B. Cyphert,A Human Being Wrote This Law Review Article: GPT-3 and The Practice of Law, 55 U.C. Davis L. Rev., 401, 423 (2021).

However, little has been written about the constitutional implications of the use of AI, in particular, the Sixth Amendment right to effective assistance of counsel in the criminal context. Given the rate at which AI continues to develop and anticipating a future that may present artificial lawyers or judges, this issue must be addressed. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023).

While AI technology may have some benefits, they are substantially outweighed by the prejudice and harm to people in contact with the criminal justice system. Because of the dark prospect that technology, namely an artificial lawyer, may be the only gatekeeper between a person and their liberty, this technology must be prohibited in the criminal justice system or, in the alternative, strictly regulated.

Attorneys have a duty to uphold the Constitution and must not let the appeals of AI’s convenience and profit infringe on our constitutional right to effective representation.

Landscape for the Future
Dr. Geoffrey Hinton invented the technology that led to the development of AI language processing programs. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). Tech giants Google and OpenAI acquired this technology and began creating powerful AI programs, the latest of which is Generative Pre-Training Transformer-4 (“GPT-4”). Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023); Alan Truly, GPT-4: how to use the AI chatbot that puts ChatGPT to shame, Digital Trends, (June 16, 2023).

ChatGPT-4 is the technology behind the latest chatbot from OpenAI that is capable of conversation. Luca CM Melchionna, Bias and Fairness in Artificial Intelligence, N.Y.L.J., 95(4) 29, 30 (2023). These programs are language processing tools that process massive data sets, recognize patterns and then predict language. Cyphert, supra, at 403. Notably, AI’s output is limited to the data set used to train the algorithm, making this technology susceptible to bias. Melchionna, supra, at 30.

With AI’s ability to predict language, the legal profession has been using this technology to assist in various tasks pertaining to research and writing, such as legal research, discovery, drafting briefs or contracts and contract review. Yamane, supra, at 882.

Driven by profit, companies are racing to develop AI to advance the capabilities of this technology in a presently unregulated environment. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). Dr. Hinton fears that companies will create technology that will outsmart human beings and become a threat to humanity. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023).

With this threat on the horizon, the creation of artificial general intelligence (AGI), with the “flexibility and resourcefulness of human intelligence,” is closer than we think. Gary Marcus, Artificial General Intelligence is Not as Imminent as You Might Think, Sci. Am., (July 1, 2022); Alan Truly, GPT-4: how to use the AI chatbot that puts ChatGPT to shame, Digital Trends, (June 16, 2023).

With the present use of AI technology in practice and AGI technology on the horizon that may provide a substitute for attorneys, the use of this technology and its potentially grave consequences in the criminal justice system must be closely scrutinized.

The Right to Counsel
The Sixth Amendment right to counsel is clearly established, tracing back to the purpose of the Bill of Rights to guarantee “. . . fairness and justice before any person could be deprived of ‘life, liberty, or property.’” Adams v. U.S. ex rel. McCann, 317 U.S. 269, 276 (1942). The Supreme Court has explained, “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668, 692 (1984).

The constitutional requirement of counsel is not met simply by “… a person who happens to be a lawyer is present at trial alongside the accused.” Strickland, 466 U.S. at 692. It is the counsel’s role in the adversarial process to use their skills to afford the defendant an opportunity to test the prosecutor’s case to ensure fairness and reliability on the outcome of a criminal proceeding. Adams, 317 U.S. 269.

To succeed on a claim of ineffective assistance of counsel, a defendant must show that the conduct of counsel was deficient, falling below an objective standard of reasonableness, and that it resulted in prejudice. 466 U.S. at 668. Counsel’s deficient performance is prejudicial if the defendant shows, but for the attorney’s deficient conduct, there is a reasonable probability that the outcome would have been different. 466 U.S. at 668.

A narrow exception to the prejudice prong of the Strickland test would be circumstances that amount to a constructive denial of effective assistance because they erode the inherent fairness in the adversarial process and undermine the outcome. U.S. v. Cronic, 466 U.S. 648 (1984).

Examples of such circumstances are a conflict of interest or counsel’s failure to test the prosecution’s case. Cronic, 466 U.S. 648. A defendant must overcome the presumption that the counsel’s conduct was reasonable. Cullen v. Pinholster, 563 U.S. 170, 179 (2011).

Prejudice Outweighs Benefits
The use of AI in the context of criminal legal representation falls well below the Strickland and Cronic standards for effective assistance of counsel. 466 U.S. 668; Cronic, 466 U.S. 648. While AI may have some benefits, the risks of AI’s deficiency would prejudice a defendant in violation of their right to effective assistance of counsel.

The benefit of using AI in the legal profession is generally to improve the speed and quality of the services rendered. AI achieves this by completing tasks at a faster pace than a human lawyer, which improves efficiency, accuracy, and is thus cost-effective. Yamane, supra, at 882. Attorneys are using AI to assist in legal research, writing briefs and drafting and reviewing contracts. Yamane, supra, at 882.

Additionally, because the technology predicts a response based on the data it learns from, the technology can be customized to a specific area of practice. Mostafa Soliman, Navigating the Ethical and Technical Challenges of ChatGPT, N.Y.L.J., 95(4), 27-28 (2023).

Further, commentators propose that AI could resolve the equity issue of access to justice for those who cannot afford representation. Yamane, supra, at 886. It is apparent that most of the benefits of AI are predominately related to the efficiency of tasks, increased output, cutting costs for clients, more business and raising profits for the private sector.

The use of AI to complement or substitute for the work of an attorney raises concerns about possible ethical violations under the Model Rules of Professional Conduct, such as competence, unauthorized practice of law, or bias. Yamane, supra, at 883. The basis for any such ethical violations may present a myriad of problems including producing false or biased information or the risk of disclosing client confidentiality. Cyphert, supra, at 434; Roy D. Simon, Artificial Intelligence, Real Ethics, 90 N.Y. St. B. J. 34, 36 (2018).

In the criminal context, because of the problems with this technology, the use of AI and any benefits it may confer are undercut by the enormous risks posed that could result in an attorney’s deficient conduct. Such deficiency may substantially prejudice a defendant and erode the structural fairness of our cherished adversarial system.

First, the use of AI may be a silent element in the course of representation where attorneys may not even realize they are using AI. Calabresi, supra, at 800. Many commonly used legal research databases, such as Westlaw and Lexis, are already using AI technology to improve research results. Calabresi, supra, at 800.

Generally, legal research and writing are fundamental skills an attorney must possess to represent anyone in any matter adequately. One of the main problems with AI technology is producing false or biased information. Yamane, supra, at 882. If an attorney were to rely on this technology to conduct research or draft legal documents, these risks, if they came to fruition, would clearly lower the standard of reasonable attorney conduct under the Strickland framework. 466 U.S. 668.

Furthermore, as a silent element in the course of representation, it would be impossible for a defendant who is challenging the effectiveness of their representation to meet their burden to show that the role of AI changed the outcome of their case. In particular, it would be a hefty burden to overcome when attorneys enjoy the presumption of effective assistance. Cullen, 563 U.S. at 179.

This lack of transparency and accountability in the use of AI through the course of representation may substantially prejudice a defendant.

Second, the use of AI, not only in tasks like research and writing but in the development or analysis of evidence, provides a loophole in our adversarial system to admit untested evidence. The adversarial design of our system provides a truth-seeking forum where the evidence presented is challenged and tested through crossexamination.

However, if the court prohibits counsel from cross-examining admitted evidence that was generated using AI, it creates an inherently unreliable outcome that may amount to a constructive denial of effective assistance.

For example, in People v. Wakefield, the New York Court of Appeals held that the technology used to analyze genotyping DNA evidence was not considered a declarant and the defendant did not have a right to test the evidence through cross-examination. People v. Wakefield, 38 N.Y.3d 367 (2022). While Wakefield involves the confrontation clause of the Sixth Amendment, the inability to test evidence admitted raises the issue of constructive denial of effective assistance of counsel.

Third, one commentator has cited the use of AI as potentially having the benefit of closing the gap in access to justice for those who cannot afford representation because of AI’s capability to generate answers to legal questions. Yamane, supra, at 885-7.

However, if the prospect of AGI is actualized, it would not close the gap to access to justice but create a two-tiered justice system. The issues and limitations of AI are not de minimus: potentially providing output consisting of false information or even racist or sexist information. Cyphert, supra, at 414.

Using AI as a substitute for those who cannot afford human representation would further disadvantage people who would receive legal answers that may not be correct or provide information that is discriminatory or offensive. Melchionna, supra, at 31.

The greater equity that would result from the possibility of closing the access to justice gap is an exciting prospect. However, the massive social problem of inequity in accessing legal representation will not be realized using a technological solution embedded in a neoliberal ideology that plagues our society. Jeff Sugarman, Neoliberalism and psychological ethics, J. of Theoretical and Phil. Psychol., 35(2) 103-116 (2015); Evgeny Morozov, The True Threat of
Artificial Intelligence, N. Y. Times, (June 30, 2023).

Lastly, legal representation involves human elements that are irreplicable. Attorneys are not robots, and they do not simply intake information and spit out answers. There are nuances that accompany the role, such as building a relationship with the person you are representing. The assignment isn’t to represent a case but a person who selected, or was assigned an attorney, to assist in their defense to stand between themselves and the possibility of incarceration.

One of the most critical aspects of an attorney’s role, particularly in the criminal context, is the unwavering loyalty and zealous advocacy for the person they are representing. As the Supreme Court recognized, an attorney is not “simply a person who happens to be a lawyer . . . standing alongside the accused,” but the Constitution requires much more. 466 U.S. 668 at 685.

To strip the art of legal representation of these elements would undoubtedly prejudice a defendant, for no technology is capable of zealous advocacy, loyalty, and empathy. There are some characteristics, “understanding, self-awareness . . . emotions, desires . . .” that are uniquely human. David Brooks, ‘Human Beings Are Soon Going to Be Eclipsed,’ N. Y. Times, (July 13, 2023).

In the criminal context, the use of AI presently and the potential of AGI as a substitution for attorneys creates an unlevel playing field that strikes at the heart of fairness, which is the essence of our
constitutional right to counsel.

Safeguarding Liberty
Despite the proposed benefits of AI, mainly in the private sector, they are substantially outweighed by the enormous harm and prejudice sustained, particularly in the criminal justice system. People will continue to be subjected to harm as AI continues to develop and infiltrate the legal profession.

However, the Constitution requires effective representation of persons at risk of losing their liberty, and the use of AI results in a grossly prejudicial outcome.

Some “solutions” that commentators propose to impose safeguards when using AI in the course of legal representation are appropriate oversight and limiting the use of AI as a tool, not a substitute.
Yamane, supra, at 889.

These proposed safeguards are inadequate not only in the criminal context but for what is to come with the lightning speed advancements occurring with this technology. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). The only measure that is adequate when liberty is at stake is prohibiting the use of AI in the criminal justice system or strict regulations that at least permit cross-examination.

The legal field is a self-regulating profession, and attorneys are stewards of the Constitution. Innovative technology can be exciting and appealing, but there are no shortcuts to justice, truth, and defending liberty. The legal profession cannot be complicit in the encroachment of unregulated and unbridled technology infringing on the cherished constitutional rights of the people they serve. Liberty is too great a cost for convenience.

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