In
Mata v. Avianca, Inc., the case in which clueless lawyers submitted bogus court decisions dreamed up by ChatGPT, the lawyers have belatedly hired very good and very expensive lawyers to respond to the court's second order to show cause for sanctions (May 26, posted above).
Recall that there was an earlier order to show case for sanctions (May 4, posted above), in response to which Steven Schwartz, the lawyer who did the "research" but whose name is not on the papers, and Peter LoDuca, the lawyer who signed the papers but claims he didn't know anything about the research, submitted affidavits on May 25 (posted above).
The two affidavits are exceptionally lame; on their face they disclose bad conduct without presenting any considerations that might temper the judge's inclination to issue severe sanctions. And LoDuca has the additional problem that his affidavit has a misdated jurat above the signature of the notary, who happens to be Mr. Schwartz. Language directed to LaDuca in the second order to show cause ("use of a false and fraudulent notarization") indicates that the judge is not inclined to view this as a forgivable typo.
Sometime later, Schwartz and the law firm hired Frankfurt Kurnit (formerly Frankfurt Garbus), a firm best known for copyright and IP work, which also has a large practice representing lawyers in trouble. LoDuca has hired Morvillo Abramowitz, a premier white collar criminal defense firm. Their job will be to do what the May 25 affidavits did not: persuade the judge that their clients realize the enormity of their conduct and present arguments that might temper the judge's wrath. Cf. the words of the confession in Anglican liturgy:
We do earnestly repent, and are heartily sorry for these our misdoings; the remembrance of them is grievous unto us, the burden of them is intolerable.
Morvillo is now facing a situation. Frankfurt Kurnit requested and received an extension from June 2 to June 6 to submit a response to the May 26 order to show case. Morvillo immediately wrote to make sure that they would get the benefit of the same extension.
The response from the judge, an endorsement handwritten on the letter and transcribed in the docket, is the stuff of nightmares.
https://storage.courtlistener.com/recap ... 8.42.0.pdf
ENDORSEMENT: Mr. LoDuca is differently situated from Mr. Schwartz and the Firm. He has availed* himself of a full and fair opportunity to respond to the Court's OSC regarding non-existent case law and three (3) possible grounds for sanctions. He is not entitled to a do-over. The only point of response to the supplemental OSC of May 26 is whether he, in fact, physically appeared before Mr. Schwartz, a notary public, on April 25, 2023 and took an oath to tell the truth. That should be a simple and straight forward matter. But if he needs until June 6, 2023 to respond on this point he may have the time. Application Granted. SO ORDERED
Morvillo is in a tough spot. My inclination would be to submit papers that amount to a do-over not withstanding the judge's order, coupled with a request that the judge reconsider the prohibition on additional argument with respect to sanctions. The worst that can happen is that the judge will say "no," but he'll see the new arguments, and Morvillo will have protected the record for appeal.
It's likely to annoy the judge, but there are times when you can't worry too much about that. This judge is already on beyond annoyed. The apt term used earlier by Mike Dunford/@questauthority is "incandescent."
And even though the endorsement indicates that Schwartz and the firm are not subject to the "no do-over" ruling, the lawyers from Frankfurt Kurnit have every reason to anticipate an equally difficult time for their clients at the hearing.
The response of lawtwitter to what LoDuca and Schwartz did has been interesting. There's been lots of
, but also many lawyers posting that learning about what happened has made them physically ill.
I share both reactions.
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* The docket says "awarded," but that's a mistranscription. The handwritten order says "availed."