The Lawletter Vol. 51 No. 3

CRIMINAL LAW:  Supreme Court Limits What Is Extraordinary and Compelling for Compassionate Release

Robert Westendorf—Senior Attorney

    In two separate opinions recently handed down, the Supreme Court took a narrow view on what constitutes “extraordinary and compelling” reasons that justify early release. In Fernandez v. United States, No. 24-556, 2026 U.S. LEXIS 2295, 146 S. Ct. 1292 (May 28, 2026), the defendant was convicted of murder for hire and sentenced to two life sentences. Id. at *8. Eventually, after his habeas challenge failed, the defendant filed a motion for compassionate release under 18 U.S.C. § 3582, which allows district courts to shorten prison sentences for extraordinary and compelling reasons. Id. at *7-11. He argued that he was actually innocent, which warranted a sentence reduction. Id. at *11. The district court agreed and granted the motion, but the Second Circuit reversed. Id. at *11-12. The Supreme Court granted certiorari and in an opinion by Justice Barrett that was joined by the other conservative justices, affirmed. Id. at *12-26. The Court noted that collateral attacks on conviction are governed by the habeas statute of 28 U.S.C. § 2255, which imposes “tight procedural constraints.” Id. at *13. The defendant’s motion under Section 3582 is “a collateral attack outside the rigorous habeas framework. . . . Challenging the validity of a conviction through a compassionate release motion circumvents the exacting requirements of §2255.” Id. at *15.

The Lawletter Vol. 51 No. 3 

ATTORNEY AND CLIENT: Enough Is Enough: Florida Supreme Court Amends Rules to Combat AI Misuse

Jason Holder—Senior Attorney

     Much like their sister jurisdictions, Florida’s courts have seen an alarming increase in the citation of nonexistent caselaw stemming from the use of generative artificial intelligence by both attorneys and pro se litigants. See, e.g., Goya v. Hayashida, 418 So. 3d 652, 655 (Fla. 4th DCA 2025) (Party’s brief cites cases “for the proposition that a party claiming inherited property must provide documents of transfer or other formal proof of inheritance. These cases do not exist, and no cases stand for that proposition or various other contentions in her brief.”); Russell v. Mells, 426 So. 3d 913, 921 (Fla. 2d DCA 2025) (holding that attorney “fundamentally abdicated” duty to the court and client by submitting a filing without verifying that the three cases cited said what was claimed and referring the matter to the Florida Bar “to proceed as it deems appropriate”); Hessert v. Hessert, No. 6D2026-0121, 2026 Fla. App. LEXIS 2188, at *1-2 (6th DCA Mar. 20, 2026) (“[T]he petition filed by Petitioner cites to thirteen cases. Only four of the cited cases both exist and are cited for legal propositions that the cited cases actually represent. Five of the cited cases do not exist. Four of the cited cases are cited for legal propositions that the cited cases do not actually represent.”); Young v. AP, No. 25-CA-352, 2025 Fla. Cir. LEXIS 2476, at *30-32 (Aug. 29, 2025) (hallucinated cases found in motion for leave to amend); Rodriguez v. Baylis, No. 2025-CA-004973-O, 2025 Fla. Cir. LEXIS 2738, at *3-4 (Sept. 10, 2025) (pro se plaintiff appeared to have included artificial intelligence research and an AI platform hallucinated case that did not exist, but concluding that party “made an honest and genuine mistake as a pro se or self-represented litigant without the resources of a licensed attorney lacking any malice or bad faith”). As explained by one judge, “[c]hatbots are going to get better, and that's going to make these problems worse. The question now must be how to address them on the front end.” Gouveia v. Meridian Fin. Invs., LLC, No. 4D2025-0843, 2026 Fla. App. LEXIS 2306, at *8, 15 Fla. L. Weekly D 600 (4th DCA Mar. 25, 2026) (Lott, J., concurring).

The Lawletter Vol. 51 No. 3

ALTERNATIVE DISPUTE RESOLUTION: It’s Hard to Attack an Arbitration Award

Paul Ferrer—Senior Attorney

     Attacking an arbitration award is never an easy task. The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, which serves as a model for many similar state arbitration statutes, provides very limited grounds for vacating an arbitrator’s award. See 9 U.S.C. § 10(a) (grounds for vacation include that the award was procured by “corruption, fraud, or undue means,” or that the arbitrators were partial, exceeded their powers, or committed certain kinds of misconduct, including refusing to hear pertinent evidence). Other than those grounds, judicial review of an arbitration award is “severely circumscribed”: “A court sits to determine only whether the arbitrator did his job, not whether he did it well, correctly, or reasonably, but simply whether he did it.” Ctr. for Excellence in Higher Educ., Inc. v. Accreditation All. of Career Schs., 166 F.4th 452, 457 (4th Cir. 2026) (quotations omitted). A person aggrieved by an arbitrator’s award on one of the stated grounds may seek relief from the federal district court for the district where the award was made. See 9 U.S.C. § 10(b). In the cited case, the United States Court of Appeals for the Fourth Circuit joined the Fifth, Sixth, and Tenth Circuits in holding that a person may not, however, launch a collateral attack on the arbitrator’s award.

The Lawletter Vol. 51 No. 3

PERSONAL INJURY:  What Happens When a Landlord Does Not Make Repairs and a Tenant Is Injured as a Result?

David C. Wagoner—Senior Attorney

      Most states impose statutory duties on landlords to maintain and repair residential premises in habitable condition during a tenancy. See, e.g., Cal. Civ. Code § 1941 (California); O.C.G.A. § 44-7-13 (Georgia); ALM GL ch. 186, § 19 (Massachusetts); MCLS § 554.139 (Michigan); NY CLS Real Prop. Law § 235-B (New York); 9 V.S.A. § 4457 (Vermont); Va. Code § 55.1-1220 (Virginia); Rev. Code Wash. § 59.18.060 (Washington); W. Va. Code § 37-6-30 (West Virginia); and Wis. Stat. § 704.07 (Wisconsin).

The Lawletter Vol. 51 No. 3

CRIMINAL LAW:  Marijuana Weed Crumbs on Floor Do Not Violate California’s “Open Container” Law, or Support Probable Cause

Trish Sifka—Senior Attorney

      When California voters approved 2016 Proposition 64 legalizing the possession and transportation of recreational marijuana under 28.5 grams by individuals 21 years or older, the voters preserved certain limitations. The legislation was subject to Health and Safety Code §§ 11362.2, 11362.3, 11362.4 and 11362.45. Health and Safety Code § 11362.3(a)(4) makes it unlawful to “[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” Voters included cannabis in this law to curtail marijuana-impaired driving. Cal. Health & Safety Code § 1136.3(a)(4).

The Lawletter Vol. 51 No. 2

Charlene Hicks—Senior Attorney

     “During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.” Trump v. CASA, Inc., 606 U.S. 831, 840, 145 S. Ct. 2540, 2550 (2025). A universal injunction refers to the controversial practice wherein a single federal district court judge enters an injunction that takes effect throughout the nation. Not surprisingly, this practice induced chaos. “By the end of the Biden administration, we had reached ‘a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.’” Id.

The Lawletter Vol. 51 No. 2

Amy Gore—Senior Attorney

     With the corporate push to assimilate artificial intelligence (“AI”) into business, the insurance industry has started embracing the use of various AI tools in underwriting and certain claim-handling applications. However, traditional liabilities continue to be a risk to insurance companies.

The Lawletter Vol. 51 No. 2

Brett Turner—Co-President

      Much attention has been paid in recent months to the misuse of artificial intelligence (“AI”) software by attorneys. But what about the use of AI software by judges?

      In Payne v. State, No. S26A0459, the Georgia Supreme Court discovered that a trial court order dated September, 12, 2005, contained serious citation errors. Three cases cited in the order did not actually exist; three cases were properly cited, but language which was expressly quoted did not appear in the opinion; and three cases were properly cited, but their holdings were clearly misstated. These sorts of errors are common when AI is used to prepare a document explaining legal reasoning without sufficient human supervision.

The Lawletter Vol. 51 No. 2

Becky Schanz—Senior Attorney

      As recently noted by Judge Jed Rakoff, “[g]enerative artificial intelligence presents a new frontier in the ongoing dialogue between technology and the law.” United States v. Heppner, 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697, at *14 (S.D.N.Y. Feb. 17, 2026). Courts are just beginning to wrestle with the use of artificial intelligence (“AI”), but a few recent cases address whether privilege applies to AI use.

      In Heppner, the district court held that the defendant’s conversations with an AI platform were not protected as work-product or by attorney-client privilege. Id. at *1. The defendant had been indicted on charges of securities and wire fraud and a search of his home produced his communications with a generative AI platform. Id. at *2-4. The defendant asserted that the communications occurred in preparation for a possible indictment and were privileged because they included information from his attorney, were to prepare for speaking with his attorney, and were ultimately shared with his attorney. Id. at *4-5.

The Lawletter No. 51 Vol. 1

Nadine Roddy, Senior Attorney

     On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit vacated a nationwide preliminary injunction blocking key provisions of two Executive Orders (“EOs”) issued by President Trump, finding that they were not facially unconstitutional. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, ___ F.4th ___, 2026 WL 321433 (4th Cir. Feb. 6, 2026).

     EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” addressed diversity, equity, and inclusion (“DEI”) programs of federal agencies, grantees, and contractors. The court had previously stayed the injunction pending appeal. The three-judge panel remanded the case to the U.S. District Court for the District of Maryland for further proceedings, leaving open the possibility of challenges based on individual application of the EOs (“as applied” challenges).