Navigating AI in Legal Practice: Addressing Concerns and Embracing Responsible Use

Jul 15, 2023

Introduction

Recent court orders mandating AI disclosures in court filings have sparked discussions about the ethical and regulatory challenges posed by artificial intelligence in the legal profession. CaseText provided a great blog post on the topic, looking at recent high-profile cases where the courts have mandated certain AI-related disclosures. While these orders highlight legitimate concerns, they are not necessarily new concerns, and our profession’s ethical rules have handled rapidly advancing technology in the past, and can do so again.

Our intent is to provide practical tips on navigating this new landscape. Along the way we will emphasize that existing ethical guidelines are already more than adequate to guide legal professionals in responsibly utilizing AI tools. Court orders specific to AI disclosures are likely to prove ineffective in the face of rapidly advancing AI technologies that outpace regulatory efforts. 

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AI Selection and Verification

The first step to practical navigation is differentiating between various AI platforms. Understanding what these platforms are for is crucial to understanding their capabilities and limitations. General-use generative AI tools, like ChatGPT, may produce unreliable information, whereas professional-grade AI tailored to the legal domain, such as CoCounsel, draws from a reliable legal database. One is built for everything; one is built for specific legal uses. Look at the tool in advance and decide what you need to use it for. If you are looking for case law, a general use generative AI tool is unlikely to provide reliable help.

Moreover, while selecting the appropriate AI tool is essential, it’s equally crucial to adhere to existing ethical guidelines that cover the verification of citations. The ABA model rules of professional responsibility can serve as a comprehensive reference in this regard. By following these model rules, legal professionals ensure that their AI usage aligns with established ethical standards. If a person using AI follows the model rules, they will be fine!

Regardless of the AI platform used, legal professionals must verify the output, ensuring that all sources and citations are accurate. A generic generative AI tool will sometimes provide case law citations in settled areas of law, but other times it will just invent a citation based on pieces from various sources. Lawyers should independently cross-reference cases, statutes, and quoted language to confirm their validity, rather than relying solely on the AI’s own accuracy claims. AI should be viewed as a tool that expedites legal research and drafting, but it does not replace the professional and ethical obligations of lawyers. We have a rule for that.

  • Rule 1.1: Competence:
    • “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
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Familiarize Yourself with Court-Specific AI Rules:

The second practical tip is to understand court-specific AI rules before filing court documents. While AI-related regulations may seem novel, it is important to remember that judges have always set rules for their courtrooms. Legal professionals should consult their respective courts to determine if there are specific procedures or orders regarding AI usage. Some federal judges openly share such orders on their individual pages on uscourts.gov, while state judges may have their own guidelines. 

An example from the Eastern District of Pennsylvania states: 

“If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper, filed with the Court, and assigned to Judge Michael M. Baylson, MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing, and CERTIFY, that each and every citation to the law or the record in the paper, has been verified as accurate.”

Check it out here: https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

…but… also think about whether we even need such an order, let’s look at some relevant model rules that already prohibited what the judge is attempting to order around:

  • For Work Product and Citing Sources:
    • Rule 3.3: Candor Toward the Tribunal – “A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
  • For Plagiarism:
    • Rule 8.4: Misconduct – “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Complying with AI Disclosure Requirements:

The order from the Eastern District of Pennsylvania teaches us an important lesson. Various judicial orders outline specific requirements for AI disclosure. Some orders focus on the general use of AI, while others specifically target generative AI. In the example from Pennsylvania, the court is focused on the use of any AI revealing a troubling lack of tech savvy. If his rule were applied as written, every user of LexisNexis, Westlaw, FastCase, or even Google would have to disclose the use of their standard features because keyword searching has been using AI for years. Check out this product announcement from LexisNexis in 2017 announcing the use of AI in Lexis searches: https://www.artificiallawyer.com/2017/08/11/lexisnexis-legal-ai-and-our-data-driven-future/ That new feature in 2017 is the standard for keyword searching today and has always been driven by AI and machine learning.

It is clear then that the Judges issuing AI-related orders can inadvertently be unclear and overbroad in their requests. That shifts the burden to legal professionals who must carefully read and understand the disclosure guidelines specified in each order and apply those orders to the best of their abilities. Some judges require simple acknowledgment of AI usage, while others demand detailed notice regarding the specific parts of court filings that have been drafted using AI. Additional requirements may include certification that the use of AI has not led to unauthorized disclosure of confidential or proprietary information.

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Transparent Disclosure Methods

The final tip then has to do with disclosure. Once familiar with the rules, legal professionals must decide how to disclose their use of AI in court. One approach is to include a statement in pleadings or briefs, informing the court about the utilization of AI tools. This serves as a notice and provides an opportunity for the court to seek clarification if necessary. Alternatively, legal professionals may opt for a more detailed explanation, outlining the technology used, its functionality, and its contributions to the case. Finally, providing expert witness testimony on AI usage offers an even deeper understanding for the court if the use was extensive and necessary. The goal is transparency. Transparency in AI usage not only prevents misunderstandings that may harm a case, but also enhances the court’s comprehension of AI’s potential implications and promotes responsible utilization across the legal profession.

Conclusion

While court-mandated AI disclosures may raise concerns about AI’s impact on legal practice, it is crucial to recognize that the underlying issues are not entirely new. Adhering to existing ethical guidelines and exercising responsible use of AI tools can help mitigate potential risks. Furthermore, considering the rapid pace of AI development, it is reasonable to question the long-term effectiveness of regulations attempting to keep pace with technological advancements—many judges are already behind. By staying informed, adopting ethical practices, and fostering greater understanding of AI’s potential, legal professionals can navigate the evolving landscape of AI in a manner that aligns with their professional obligations and promotes the responsible utilization of this powerful innovation.

FAQs

Q: How can legal professionals differentiate between various AI platforms for effective usage?

A: Legal professionals should assess AI platforms based on their purpose and capabilities, considering tools like CoCounsel tailored to legal needs.

Q: What can legal professionals do to ensure the accuracy of AI-generated citations and information?

A: It’s crucial for legal professionals to independently verify AI-generated citations and sources for accuracy.

Q: Are there existing ethical guidelines that address the verification of AI-generated citations?

A: Yes, Rule 1.1 of ABA model rules emphasizes competence and diligence in verifying AI-generated citations.

Q: How should legal professionals approach court-specific AI rules before filing documents?

A: Legal professionals should familiarize themselves with court-specific AI rules to ensure compliance before filing.

Q: What is the recommended approach for transparently disclosing AI usage in court documents?

A: Legal professionals can transparently disclose AI usage by including a statement in documents or providing detailed explanations if necessary.

Original Article: “Court-mandated AI disclosures: what you need to know when using AI in court filings,” on CaseText, July 11, 2023. https://casetext.com/blog/court-mandated-ai-disclosures-four-steps-to-avoid-becoming-the-next-chatgpt-lawyer/