Ask Donna: Lawyers and Generative AI

My firm is exploring implementation of AI platforms into our practice.  We are concerned about using AI. Do you have any tips for us?

Sincerely,

AI Acquainted

Generative Artificial Intelligence ("AI") has been a hot topic at many legal malpractice conferences I have attended in the past year. I find that some firms have been using AI for quite some time, while others are new to the idea.  

When determining which AI platform to use, consider whether the information contained in the software is up to date.  Is it web based and constantly updated with changes in the law?  Or is the system closed, i.e. it only contains information that is current up to a certain date? If your firm selects a closed system, be mindful of the need to upload new information or ensure that all citations are Shepardized.

Be aware that certain platforms, like ChatGPT, are biased and provide results on what they perceive to be your preferences.  For example, have you ever searched online for a shirt and gotten results for stores that you frequently shop at?  As a result of bias and other factors, it is possible for AI to generate "hallucinations," which present false or misleading information as if it were true (e.g. bogus authority).

There are several cases where attorneys used AI to draft documents, which contained case law that was a hallucination.  Probably the most well-known case on this topic is Mata v. Avianca, Inc., F. Supp. 3d, 22-cv-1461 (PKC), 2023 WL 4114965, at *2 (S.D.N.Y. June 22, 2023).  The case involved two NY attorneys who used ChatGPT to draft a legal brief.  ChatGPT made up citations and quotations that did not exist.  Each lawyer was sanctioned $5,000 under FRCP Rule 11 and ordered to apologize.  Moreover, the client’s case was dismissed.

To avoid running into issues like those in Mata, ensure the accuracy of the AI work product.  Always cite check and verify the sources that AI provides.  While AI can be a helpful tool, there are tasks that require the "human touch."   Ensure that you identify tasks that only attorneys can perform.  Also, train attorneys and staff within your firm on how to appropriately use AI.  Consider devising AI strategies and firm procedures, and properly supervise the use of AI by staff and junior attorneys.

Do you plan to use AI for an engagement?  Explain that to your client and advise them on the cost benefit of doing so, in addition to discussing the safeguarding of confidential information.  Always obtain your client's consent to use AI and memorialize it in writing.  Specify in your engagement letter that you will use AI.

Keep in mind that the appropriate use of AI boils down to competency.  Many state rules of professional conduct include a comment to the rule referencing the use of technology.  For example, Comment 8 to the Illinois Rules of Professional Conduct 1.1. states: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Many states are exploring the addition of more specific guidance on AI in the coming months. Similarly, in July of 2024, the ABA issued Formal Opinion 512, which examined lawyers’ duties of competence (RPC 1.1), confidentiality (RPC 1.6), communication (RPC 1.4), meritorious claims and contentions (RPC 3.1), candor towards the tribunal (RPC 3.3), supervisory responsibilities (RPC 5.1-.3) and charging reasonable fees (RPC 1.5).

You should read the ABA's Formal Opinion 512 and keep abreast of your local rules of professional conduct.

Donna Asta

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