Counsel’s use of inaccurate artificial intelligence (AI) information in defendant’s appellate briefs; An attorney’s “baseline ethical obligations” when using AI; Whether counsel fell short of his obligations under Model Rules of Professional Conduct, Rule 5.3; Possible discipline under Sixth Circuit Local Rule 46

The court removed defendant-Farris’s appointed appellate attorney and denied him payment for his work on the appeal after he admitted to using AI to draft Farris’s appellate briefs and filing them without properly verifying the citations. The attorney was appointed to represent Farris in the district court and authorized to continue representing him in appealing his sentence. The attorney admitted to having “staff” use Westlaw’s internal artificial-intelligence platform (CoCounsel) to draft Farris’s principal and reply briefs and to filing them without properly verifying the citations. This resulted in “multiple misrepresentations of law” to the court. It noted that it had detected the use of AI when reviewing the briefs, and that the investigation of the citations showed three that were “problematic.” Although the citations referenced genuine legal authorities, the purported direct quotations did not appear in them. The court also was unable to find the “same or substantially similar language” as the quotations in other relevant legal authority. Further, the briefs “misrepresented the holdings in” two of the cases cited. The court directed the Clerk to issue a show-cause order requiring the attorney to provide a copy of his cited authorities and to explain any discrepancies. He admitted to being unfamiliar with CoCounsel and failing to properly review the briefs. The court noted his previously clean record and “his candor in acknowledging his improper use of” AI. But it reiterated an attorney’s “baseline ethical obligations as they relate to the use of” AI. It made clear that “attorneys who rely on artificial intelligence must remain diligent in supervising their work product and carefully examine the accuracy of every citation they present to” the court. The attorney’s “reliance on ‘staff’—rather than himself or another attorney—to supervise the artificial-intelligence-generated work product fell short of his obligations as attorney of record.” It concluded that the misconduct here warranted appointing different appellate counsel for Farris. It also denied the attorney payment for time spent on Farris’s appeal, and referred the matter to the Sixth Circuit’s Chief Judge to consider disciplinary action under Sixth Circuit Local Rule 46. And it ordered the Clerk to serve a copy of its opinion to the Chief Judge and Clerk of the district court and to the Disciplinary Clerk for the relevant bar association.

Contract formation; Oral contract; Bodnar v St John Providence, Inc; Equitable remedies; Quantum meruit; Morris Pumps v Centerline Piping, Inc; Evidence; Business records; MRE 803(6); Solomon v Shuell; Due process; Notice & opportunity to be heard; AFP Specialties, Inc v Vereyken; House of Providence (HOP)

The court held that the trial court properly rejected plaintiff-ECI’s claims for payment because it failed to prove an oral contract or a compensable benefit, and the trial court did not deny it due process in the handling of its posttrial evidentiary issues. ECI sought nearly $288,000 for alleged grant-application and work-plan services connected to environmental remediation on defendant-HOP’s property, relying heavily on a one-day-created “Disputed Invoice” and its employee's (S) testimony after the parties’ relationship ended and HOP hired another consultant. The trial court found ECI’s evidence not credible, expressed concern that its posttrial submissions were “obliterated” by inconsistent invoices, and entered judgment for HOP. On appeal, the court held that ECI received due process because it had notice of the trial court’s authenticity concerns and a meaningful opportunity to address them, but simply failed to do so. The court next held that the trial court did not abuse its discretion by refusing yet more testimony because the proposed witness was not offering true rebuttal and ECI had already been given ample chances to lay a foundation for the subcontractor charges. The court also held that ECI failed to prove an oral contract, explaining that the issue turned on a credibility contest, and the appellate court deferred to the trial court’s finding that ECI’s evidence was not credible. The court further held that the judgment was not against the great weight of the evidence on quantum meruit because ECI did not credibly establish that it conferred a new benefit on HOP beyond work for which it had already been paid. It also upheld the exclusion or rejection of subcontractor charges as lacking trustworthiness under MRE 803(6). Affirmed.

Inadmissible evidence; Prior contact with police officers; Jury instructions as to resisting or obstructing a police officer under MCL 750.81d(1); M Crim JI 13.5(5); Prosecutorial misconduct during cross-examination; Ineffective assistance of counsel; Deficient performance; Prejudice

The court affirmed defendant’s conviction of resisting or obstructing an officer. While defendant “was on bond awaiting trial, he tested positive for a tricyclic antidepressant. Soon after [he] was informed that he would be taken to jail for the positive drug test, [he] fled from the building and was later apprehended by a police officer.” On appeal, he contended “that inadmissible evidence was presented at trial, that the jury instructions were inadequate, and that the prosecution engaged in misconduct[.]” Deputy L’s “single statement about knowing defendant from contacts during a 30-year period does not warrant relief on appeal.” The court found that the “admission of that lone statement neither rose to the level of plain error nor affected defendant’s substantial rights.” Turning to the prosecutor, defendant blamed “her for improperly cross-examining him about his experiences on tether and about cases unrelated to the instant case.” The court found that the “prosecutor’s comments appear to be appropriate in the context of the trial.” It found “no error, much less plain error that affected defendant’s substantial rights.” The court found that the “trial court appropriately instructed the jury that the prosecution had to prove, beyond a reasonable doubt, that defendant resisted or obstructed [L], that defendant knew or had reason to know that [L] was ‘performing his duties at the time,’ and that [L] gave defendant ‘a lawful command, was making a lawful arrest, or was otherwise performing a lawful act.’” Thus, the court concluded that “the trial court instructed the jury on each element of the charged crime.” It held that “the trial court accurately and completely defined the elements of the charged offense,” and defendant was “not entitled to any relief for the trial court’s failure to read M Crim JI 13.5(5) to the jury.” Hence, the court found that “it was proper for the prosecutor to refer to that exchange and use it to argue that defendant’s testimony was not truthful.” The prosecution conceded on appeal that another “comment was plainly inappropriate, but contend[ed] that that error did not affect defendant’s substantial rights.” The court agreed. It found that “the plainly erroneous statement of the prosecutor did not affect defendant’s substantial rights.”

Ineffective assistance of counsel; Failure to advance a voluntary manslaughter theory & to request a jury instruction on it; Sufficiency of the evidence for a FIP conviction under MCL 750.224f(2); Whether attempted CCW constitutes a “specified felony”; People v Parker

The court rejected defendant’s claim that defense counsel was ineffective for failing to advance a voluntary manslaughter theory at trial and to ask for a jury instruction on that offense. It also held that his “prior conviction of attempted CCW was a ‘specified felony’” sufficient to support his conviction of FIP under MCL 750.224(f)(2). He was also convicted of first-degree murder and felony-firearm. As to his ineffective assistance claims, the court found that he failed to show either deficient performance or prejudice. As to the former, “any effort to rely on the theory of voluntary manslaughter would have been futile because a rational view of the evidence plainly did not support a voluntary manslaughter instruction.” As to the latter, the court could “find no reasonable probability that the jury would have convicted defendant of voluntary manslaughter, as opposed to first-degree murder.” As to his sufficiency of the evidence challenge, he argued that “his prior conviction of attempted CCW cannot constitute a ‘specified felony’ under MCL 750.224f(2).” The court noted that it “has expressly concluded that attempted CCW is a ‘specified felony’” in multiple other unpublished decisions. Those decisions relied on Parker “for the proposition that an attempt to commit a crime that is a ‘specified felony’ must be treated just the same as the commission of the crime itself, so an attempt to commit a ‘specified felony’ is, itself, necessarily a specified felony.” Applying Parker, the court reached the same conclusion in this case. Affirmed.

Sufficiency of the evidence for a conspiracy to commit armed robbery conviction; People v Seewald; People v Chambers; Sentencing; Scoring of OV 3; MCL 777.33(1)(a); “Results from”; People v Laidler; Scoring of OV 1; MCL 777.31(1)(a) & (2)(b); People v McGraw; People v Robinson (Unpub); People v Libbett; Allowing an additional prosecution witness; MCL 767.40a; Effect of a prosecutor’s negligence; People v Callon

The court held that there was sufficient evidence to support defendant’s conspiracy to commit armed robbery conviction. Further, the trial court did not abuse its discretion in allowing a late-added prosecution witness (H) to testify or in scoring 100 points for OV 3 and 25 points for OV 1. Thus, the court affirmed his conviction and his 10 to 25-year sentence. The “evidence was sufficient to show that defendant and” a woman (C) entered into an agreement to rob the victim (P) “of pills and money. Moreover, given the fact that defendant informed [C] that [P] had been robbed before and possessed a gun, and the fact that [C] subsequently asked others about using a gun in the robbery, shows that the agreement between defendant and [C] encompassed the use of force or violence with a gun during the robbery. These facts, taken together, satisfy the elements of conspiracy under MCL 750.157a and armed robbery under MCL 750.529[.]” As to OV 3, the trial court did not err in scoring it “at 100 points because the evidence was sufficient to show factual causation. In particular, the trial testimony shows that defendant first floated the idea of robbing” P to C and they “entered into a conspiracy to commit an armed robbery of [P]. After that agreement, [C] persuaded others to actually commit that armed robbery, which resulted in [P’s] death from” being shot. It reasonably followed “that but for the conspiracy between defendant and [C], the armed robbery and death would not have occurred.” As to OV 1, the court noted that reducing it from 25 points to 0 “would not affect the calculated guidelines range, so for this reason alone, defendant” was not entitled to relief. In addition, his arguments lacked merit. The “trial court was permitted to consider the fact that [P] was shot during the armed robbery when scoring OV 1 without running afoul of the McGraw principle or MCL 777.31 itself.” Further, the 25-point score was “appropriate under the circumstances of this case regardless of how OV 1 was scored for the other offenders.” Finally, the prosecution told “the trial court that it ‘secured’ or ‘found’ [H] some weeks before trial, which explained” H’s absence from “its original witness list. This representation, which generally constitutes good cause for the purposes of MCL 767.40a(4), was not disputed by defense counsel or the trial court.” Also, defendant could not show prejudice.

Search warrants; “Probable cause”; MCL 780.653; People v Waclawski; Witness unavailability; Former testimony; MRE 804(b)(1); People v Bean; Ineffective assistance of counsel; Hearsay; MRE 801(d)(2)(E); People v Martin

The court held that the trial court properly denied defendant’s motions to suppress and properly admitted an unavailable witness’s preliminary-exam testimony. Further, he was not deprived of the effective assistance of counsel. He was convicted of first-degree premeditated murder, AWIM, carrying a dangerous weapon with unlawful intent, and felony-firearm arising from a fatal shooting outside a party store. The prosecution’s evidence included surveillance footage, social-media and phone-record evidence obtained by warrant, and the preliminary-exam testimony of witness-M. M described seeing the mother of defendant’s children (H) in a black Cadillac with an armed man shortly before the shooting. On appeal, the court held that the warrants for defendant’s Facebook, Instagram, and phone records were supported by probable cause because the detective independently corroborated the anonymous tips through surveillance footage, social-media review, and follow-up investigation, which created “a fair probability that evidence of a crime would be found” in them. It next held that defendant failed to show the affidavits contained false or reckless statements, noting the detective said only that the person in the video “resembled” defendant. The court also held that M was properly deemed unavailable because the prosecution exercised due diligence by locating him in Georgia, subpoenaing him, arranging travel, and continuing efforts after he absconded. It further held that admission of his former testimony did not violate confrontation rights because defendant had a prior opportunity and similar motive to cross-examine him. Finally, the court held that counsel was not ineffective because H’s statements to M were admissible under the co-conspirator rule, and the detective’s testimony about the anonymous tips did not introduce implied testimonial hearsay. Affirmed.

Counsel’s use of inaccurate artificial intelligence (AI) information in defendant’s appellate briefs; An attorney’s “baseline ethical obligations” when using AI; Whether counsel fell short of his obligations under Model Rules of Professional Conduct, Rule 5.3; Possible discipline under Sixth Circuit Local Rule 46

The court removed defendant-Farris’s appointed appellate attorney and denied him payment for his work on the appeal after he admitted to using AI to draft Farris’s appellate briefs and filing them without properly verifying the citations. The attorney was appointed to represent Farris in the district court and authorized to continue representing him in appealing his sentence. The attorney admitted to having “staff” use Westlaw’s internal artificial-intelligence platform (CoCounsel) to draft Farris’s principal and reply briefs and to filing them without properly verifying the citations. This resulted in “multiple misrepresentations of law” to the court. It noted that it had detected the use of AI when reviewing the briefs, and that the investigation of the citations showed three that were “problematic.” Although the citations referenced genuine legal authorities, the purported direct quotations did not appear in them. The court also was unable to find the “same or substantially similar language” as the quotations in other relevant legal authority. Further, the briefs “misrepresented the holdings in” two of the cases cited. The court directed the Clerk to issue a show-cause order requiring the attorney to provide a copy of his cited authorities and to explain any discrepancies. He admitted to being unfamiliar with CoCounsel and failing to properly review the briefs. The court noted his previously clean record and “his candor in acknowledging his improper use of” AI. But it reiterated an attorney’s “baseline ethical obligations as they relate to the use of” AI. It made clear that “attorneys who rely on artificial intelligence must remain diligent in supervising their work product and carefully examine the accuracy of every citation they present to” the court. The attorney’s “reliance on ‘staff’—rather than himself or another attorney—to supervise the artificial-intelligence-generated work product fell short of his obligations as attorney of record.” It concluded that the misconduct here warranted appointing different appellate counsel for Farris. It also denied the attorney payment for time spent on Farris’s appeal, and referred the matter to the Sixth Circuit’s Chief Judge to consider disciplinary action under Sixth Circuit Local Rule 46. And it ordered the Clerk to serve a copy of its opinion to the Chief Judge and Clerk of the district court and to the Disciplinary Clerk for the relevant bar association.

Employee Retirement Income Security Act (ERISA); The National Labor Relations Act (NLRA); Whether plaintiffs’ ERISA claims were preempted by the Garmon doctrine; San Diego Bldg Trades Council v Garmon; NLRA §§ 8(a)(5) & (d); Whether defendants’ refusal to accept contributions constituted an unfair labor practice (ULP) falling within the National Labor Relations Board’s (NLRB) jurisdiction; Whether plaintiffs’ claims were “arguably subject” to the NLRA; Whether the claims satisfied the “independent federal remedies” exception; Collective bargaining agreement (CBA)

[This appeal was from the ED-MI.] The court affirmed the district court’s ruling that plaintiffs’ ERISA claims against defendants-Fringe Benefit Funds were preempted under the Garmon doctrine. Plaintiffs (a construction company, Rieth-Riley, and three of its employees) sued defendants for allegedly violating their fiduciary duties under ERISA by refusing to accept Rieth-Riley’s contributions to the Funds that were negotiated under a CBA. After the CBA was terminated, “Rieth-Riley attempted to maintain its contributions to” the Funds. When it refused to sign an agreement proposed by the Funds, they stopped accepting its contributions. Rieth-Riley sued under ERISA, asserting that the Fund Trustees “violated their fiduciary duties of loyalty and prudence by refusing to accept” its contributions, and that NLRA §§ 8(a)(5) and (8)(d) required the Funds to accept them. The district court granted defendants’ motions to dismiss without prejudice and denied plaintiffs’ motions for leave to file a first amended complaint and for a preliminary injunction. On appeal, the court noted that when “‘an employer “effects a unilateral change” to the status quo—say, by halting its contribution payments—it commits an’” ULP under NLRA § 8. And when “‘an activity is arguably subject to’” NLRA §§ 7 or 8, “‘Garmon holds that “the States as well as the federal courts must defer to the exclusive competence of the”’” NLRB. There are exceptions to this rule, including “the independent federal remedy exception, which states that ‘federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies.’” Plaintiffs argued that their ERISA claims were “not ‘arguably subject’ to the NLRA” and that they satisfied the independent federal remedy exception. The court disagreed. The fact that plaintiffs purported “to bring a claim under ERISA does not automatically defeat the Garmon doctrine’s reach.” Further, they alleged that the “Trustees violated their fiduciary duties under ERISA by ignoring their purported NLRA-based status-quo obligation to accept Rieth-Riley’s contributions.” Thus, based on their own theory, defendants’ “conduct was ‘an “arguable” violation of § 8 of the NLRA.’” As to the applicability of the exception, as pleaded in the complaints, plaintiffs’ “ERISA claims can succeed ‘only if’ Defendants’ ‘conduct violates the NLRA,’ rendering the NLRA issues ‘anything but collateral.’”

Contract formation; Oral contract; Bodnar v St John Providence, Inc; Equitable remedies; Quantum meruit; Morris Pumps v Centerline Piping, Inc; Evidence; Business records; MRE 803(6); Solomon v Shuell; Due process; Notice & opportunity to be heard; AFP Specialties, Inc v Vereyken; House of Providence (HOP)

The court held that the trial court properly rejected plaintiff-ECI’s claims for payment because it failed to prove an oral contract or a compensable benefit, and the trial court did not deny it due process in the handling of its posttrial evidentiary issues. ECI sought nearly $288,000 for alleged grant-application and work-plan services connected to environmental remediation on defendant-HOP’s property, relying heavily on a one-day-created “Disputed Invoice” and its employee's (S) testimony after the parties’ relationship ended and HOP hired another consultant. The trial court found ECI’s evidence not credible, expressed concern that its posttrial submissions were “obliterated” by inconsistent invoices, and entered judgment for HOP. On appeal, the court held that ECI received due process because it had notice of the trial court’s authenticity concerns and a meaningful opportunity to address them, but simply failed to do so. The court next held that the trial court did not abuse its discretion by refusing yet more testimony because the proposed witness was not offering true rebuttal and ECI had already been given ample chances to lay a foundation for the subcontractor charges. The court also held that ECI failed to prove an oral contract, explaining that the issue turned on a credibility contest, and the appellate court deferred to the trial court’s finding that ECI’s evidence was not credible. The court further held that the judgment was not against the great weight of the evidence on quantum meruit because ECI did not credibly establish that it conferred a new benefit on HOP beyond work for which it had already been paid. It also upheld the exclusion or rejection of subcontractor charges as lacking trustworthiness under MRE 803(6). Affirmed.

Motion for payment of surplus proceeds from a property tax-foreclosure sale; Notice; Due process; Unconstitutional taking; In re Muskegon Cnty Treasurer for Foreclosure; Over the Rainbow, LLC (OTR)

The court affirmed the trial court’s denial of respondent-OTR’s motion for payment of the surplus proceeds generated from petitioner-county treasurer’s tax-foreclosure sale of OTR’s property on statutory grounds. It noted that in “the trial court, OTR’s motion did not assert a lack of notice (and indeed asserted no notice was required). OTR’s attorney raised it for the first time, however, orally in the motion hearing. The Treasurer contradicted that assertion at the hearing, and this Court—after receipt of the appellee brief—subsequently granted the Treasurer’s motion to expand the trial court record to include the notice of pending foreclosure that it sent to OTR.” The notice in question “specifically notes the property owner’s right to make a claim for remaining proceeds, the requirement to complete and file the form contemplated by MCL 211.78t(2) to initiate the process, the deadline to file such form, and the potential consequences of failing to do so.” OTR did “not challenge the authenticity of the notice or raise any substantive arguments establishing that it did not receive it. Instead, it merely notes that appellate review is generally limited to the record established in the trial court. That much is true.” But the court noted “that is the general rule, and [it] has the discretion to expand the lower court record under MCR 7.216(A)(4) in appropriate cases such as this.” Thus, OTR did not show “any entitlement to relief on this issue.” OTR next claimed “the Treasurer violated its due-process rights by failing to satisfy MCL 211.78i(7)(i) by neglecting to provide OTR with notice of its right to claim an interest in the remaining proceeds following the tax-foreclosure sale of its property.” But the record included “that required notice. Considering OTR does not claim that this notice fails to satisfy MCL 211.78i(7)(i), it fails to demonstrate a deprivation of due process on the grounds alleged.” Finally, OTR claimed “the Treasurer’s retention of the excess proceeds constituted an unconstitutional taking. Binding precedent” (Muskegon Cnty Treasurer) foreclosed this issue.