By Maia E. JerinArtificial intelligence (AI) is rapidly transforming the legal landscape (and the world) as we know it. Although I’m fascinated by its potential to streamline research, inform litigation strategy, and modernize document review, many in our industry view AI as either an exciting new toy or something to be feared. In reality, AI is neither. While it’s true that AI can help lawyers reshape their roles, it absolutely must be used with caution.
Ghost Cases
First, AI has significant limitations when it comes to content. It can generate convincing-sounding, but utterly false, information, and without vigilance, attorneys risk presenting inaccurate statements to courts. Take for example, the now infamous case captioned Mata v. Avianca in which the plaintiff’s attorney was sanctioned for submitting a 10-page brief that cited more than half a dozen court decisions, with names like Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and Varghese v. China Southern Airlines—all cases entirely made up by ChatGPT.
What was the lawyer’s excuse? He thought Chat GPT was a search engine. Incredibly, the lawyer even asked ChatGPT whether the cases were real and received authentic looking legal citations. In his affidavit, the lawyer provided screen shots of the “due diligence” he did while preparing his opposition and conducting legal research. The judge stated he might not have sanctioned the attorneys if they had come “clean” about using ChatGPT to create the brief, but instead he determined the lawyers had exhibited “bad faith” by making false and misleading statements. In the end, the lawyer’s affidavit says it all: “I greatly regret having utilized generative artificial intelligence to supplement the legal research performed herein and will never do so in the future without absolute verification of its authenticity.”
Confidentiality
Second, AI requires a high-level of scrutiny. When you use any 3rd party platforms, you agree to their legal terms of use and privacy, which may violate significant ethical codes of conduct, especially as it relates to confidential client information. According to Prof. Cond.R. 1.4(a)(2)., we cannot reveal confidential information of clients unless an exception or waiver applies. It also requires us to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or access to, information related to the client. Consider whether the documents being uploaded to the AI platform are being used to train the AI module, and whether they are accessible to others, before you use it.
Research & Disclosure
The Ohio Rules of Professional Conduct require lawyers to provide competent representation to clients, using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. This rule requires us to keep abreast of the benefits and risks associated with relevant technology, like AI. We also have a duty to identify the technology needed to effectively represent our client, as well as determine if it will improve service to them. So, even if lawyers are not utilizing AI in their practice, they do have a duty to be aware of it and employ it if needed (or requested) to represent the client.
Prof.Cond.R. 3.3 prohibits lawyers from knowingly making a false statement to a tribunal. We already know that AI can provide misleading, or outright false, responses, and we have a duty to investigate and confirm the accuracy of information provided through AI-assisted research or generative AI. Some courts are even requiring an affirmative disclosure when AI is used.
Low-Risk Applications
When it comes to identifying relevant cases, statutes, and regulations, or providing summaries of key legal concepts, AI is very effective. Its tools make the research/background process faster, more efficient and accurate, and saves time (and resources) for everyone. It can also help litigators predict case outcomes by analyzing vast troves of historical judgments, looking at the facts in each particular case and decisions reached by the judge.
Whether you’re embracing the technology, or you’re still a skeptic, AI is continuing to evolve and transform just about every industry. As attorneys, we have a duty to, at a minimum, keep up with this emerging technology as a practical, and ethical, matter. The path forward for the legal industry seems to lie in balance – embracing AI’s potential while safeguarding the professional standards we’re sworn to uphold.