After
reading the document Professor Basset just sent, I shook my head and asked
myself whether an attorney should be disbarred for using erroneous information
obtained from AI without properly checking its veracity that leads to “fatal
briefing errors.” I looked up the ethical rules this behavior violates, and I
just don’t understand it.
When utilizing AI or any technology-assisted research tools, attorneys are expected to exercise due diligence in assessing the accuracy and validity of the information obtained. It is true that AI can significantly enhance the efficiency and scope of legal research, it does not absolve attorneys of their responsibility to critically evaluate the results and validate the information before relying on it in their legal work.
Rule 1.1: Competence states that a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. When using AI tools, attorneys must ensure that they possess the requisite competence to use the technology effectively and responsibly in the representation of their clients.
Rule
1.3: Diligence
requires attorneys are to act with reasonable diligence and promptness in
representing their clients. When using AI, attorneys must demonstrate diligence
in utilizing the technology to manage legal matters and advocate efficiently
and effectively for their clients' interests.
Rule
1.4: Communication
addresses an attorney's duty to keep clients reasonably informed about the
status of their matter and to promptly comply with reasonable requests for
information. Attorneys using AI tools must ensure that they effectively
communicate with clients about the use of such technology and how it impacts
their legal representation.
Rule
1.6: Confidentiality of Information states that attorneys are obligated to protect the
confidentiality of client information and are prohibited from revealing
information relating to the representation of a client unless the client gives
informed consent or disclosure is impliedly authorized to carry out the
representation. When using AI, attorneys must take measures to ensure the
confidentiality and security of client data and information processed by the
technology.
Rule
1.7: Conflict of Interest Current Clients addresses an attorney's duty to avoid conflicts of interest
with current clients unless the attorney reasonably believes the representation
will not be materially affected and the client provides informed consent,
confirmed in writing. Attorneys must consider potential conflicts of interest
that may arise from the use of AI tools and take appropriate steps to avoid
compromising client interests.
Rule
1.9: Duties to Former Clients requires attorneys to protect the confidentiality and avoid
using information relating to the representation of a former client to the
disadvantage of the former client, except as disclosure is authorized. When
using AI, attorneys must ensure that they do not compromise their duty to
former clients through the use of technology.
There are probably more ethical rules to include, but you get my point.
However,
whether such conduct warrants disbarment would depend on the specific
circumstances, including the severity of the error, any harm caused to clients
or the administration of justice, the attorney's intent, prior disciplinary
history, and the overall impact on the legal profession's integrity.
If an attorney's reliance on erroneous AI-generated information leads to material harm, such as an unjust legal outcome, financial losses to clients, or damage to the attorney's reputation, disciplinary action may be warranted. This could range from suspension or reprimand to disbarment, particularly if the attorney's actions are deemed to have violated fundamental ethical obligations and eroded public trust in the legal profession.
Ultimately, the legal profession's response to instances where attorneys misuse or fail to adequately vet AI-generated information should be guided by a commitment to upholding the profession's ethical standards, safeguarding the integrity of legal practice, and protecting the interests of clients and the administration of justice. This may involve not only addressing individual cases through disciplinary measures but also establishing guidance and training for attorneys on the responsible and ethical use of AI in legal research and decision-making.
Really interesting article Lester! This was a really good deep dive into AI and ethics of the law profession. I myself am really skeptical of AI (call me old fashion), butI think it can be used for good as well, a valuable tool for sure. I think that the big issue with it is when lawyers use it and don't check their work. I was actually shocked about the amount of law documents I need with spelling errors, double typed words, wrong law, etc., so maybe this is a bigger issues than just AI, but a big part of being a lawyer is being thorough! I think its important that we always double or triple check out work before filing, to avoid any misconceptions, amendments to pleadings, and overall wasting opposing counsel and our clients time! Super important! Thank you for your article.
ReplyDeleteThis was a great take on this issue. It blows my mind that an attorney would send an email much less submit something to the court without properly verifying the information contained in it. I think this particular issue fits well with our class discussion last week regarding training on AI for lawyers. I think many people including lawyers struggle with understanding how the technology works and especially its limitations. I personally am optimistic about the use of AI in the practice of law and I think when used responsibly and ethically it has the potential to have great benefits and allow attorneys to automate many tedious tasks. That being said I think that attorneys who choose to use AI need to be trained on how the technology works and how to use it property. AI use in the legal profession is intended to assist an attorney but it is not a replacement for the genuine knowledge and experience that an attorney offers. Also Florida just put out a proposed ethics opinion regarding the use of AI in the legal profession and I think there is a good chance the model rules will be updated to deal with these issues.
ReplyDeleteHelen,
ReplyDeleteI can’t believe lawyers are still submitting documents written by AI without ensuring that real cases and statutes are cited. If I remember correctly, the first highly publicized instance of a lawyer getting in trouble for citing fake case law and blaming AI for it occurred last summer in New York. That news was all over the internet, and a competent attorney would and should keep up with news like that. Moreover, a senior associate would review the work of a junior associate, so a senior associate should still review something written by AI.
I think attorneys need to prepare for the greater use of AI in the profession. This preparation should include some type of technology training. I know many attorneys who have resisted greater use of technology in their practices, and they are likely the attorneys who would be fooled by fake information from AI. Still, everyone can benefit from a technology training program.
Helen,
ReplyDeleteGreat points all around! I remember recently I had a legal issue I was trying to learn about and used chat GPT to generate some case summaries; but when I went to find the cases, they didn't exist. And then the AI misstated the legal issues entirely. I am not too worried about being displaced by AI because we have something AI doesn't: comprehension skills!