Contents
- FEATURE ARTICLE: The Year Technology Ate the Legal Profession
- NEW AUTHORITIES: On the Use of Artificial Intelligence in Law Practice
- ETHICS & MALPRACTICE RESEARCH TIP: New Articles from The Current Index to Legal Periodicals
- A BLAST FROM THE PAST: Doing the Right Thing
EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
January 4, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 4, No. 12
FEATURE ARTICLE: The Year Technology Ate the Legal Profession
December is a month to look back on the year that is ending and reflect upon where we were at the beginning of the year and where we expect to be in the coming year. This year, it seems as though the legal profession has faced a remarkable upheaval, much of it dominated by technology.
Within the past twelve months, developments in artificial intelligence seem to have come at a rapidly accelerating pace, and the legal profession is playing catch up. A year ago, there was very little definitive guidance regarding the use of AI and the ethical consequences thereof. Now, the profession has ABA Resolution 604 plus comments and opinions from state committees and judiciaries. Academic and industry commentators fill hundreds of pages on the subject each week. Indeed, there is now enough good work on the subject that generative AI, which pulls its contents from other sources, can write a decent essay on the ethical issues involved when lawyers use it. To illustrate, OpenAI’s ChatGPT produced the following:
Title: Exploring the Ethical Implications of Lawyers Using Generative AI: A Legal Perspective
Introduction:
The integration of Generative AI (Artificial Intelligence) tools in the legal profession has significantly transformed the landscape of legal practice. These innovative technologies offer lawyers powerful tools for research, document drafting, and analysis. However, the use of AI in the legal field raises intricate ethical considerations, especially concerning professional responsibility, confidentiality, and the quality of legal representation. . . .
NEW AUTHORITIES: On the Use of Artificial Intelligence in Law Practice
For additional guidance on AI and law practice, consider the following materials released throughout 2023:
- STANDING ORDER FOR CIVIL CASES BEFORE MAGISTRATE JUDGE FUENTES (May 31, 2023)
… The Court has adopted a new requirement in the fast-growing and fast-changing area of generative artificial intelligence (“AI”) and its use in the practice of law. The requirement is as follows: Any party using any generative AI tool to conduct legal research or to draft documents for filing with the Court must disclose in the filing that AI was used, with the disclosure including the specific AI tool and the manner in which it was used.
Further, Rule 11 of the Federal Rules of Civil Procedure continues to apply, and the Court will continue to construe all filings as a certification, by the person signing the filed document and after reasonable inquiry, of the matters set forth in the rule, including but not limited to those in Rule 11(b)(2). Parties should not assume that mere reliance on an AI tool will be presumed to constitute reasonable inquiry, because, to quote a phrase, “I’m sorry, Dave, I’m afraid I can’t do that …. This mission is too important for me to allow you to jeopardize it.” 2001: A SPACE ODYSSEY (Metro- Goldwyn-Mayer 1968).
One way to jeopardize the mission of federal courts is to use an AI tool to generate legal research that includes “bogus judicial decisions” cited for substantive propositions of law. See Mata v. Avianca, Inc., No. 22-cv-1461 (PKC), Order to Show Cause (S.D.N.Y. May 4, 2023) (issuing rule to show cause where “[a] submission filed by plaintiff’s counsel in opposition to a motion to dismiss is replete with citations to nonexistent cases.”) (D.E. 31); Id., Attorney Affidavit (D.E. 32-1) (S.D.N.Y. May 25, 2023) (responding to rule to show cause order by stating that the case authorities found by the district court to be nonexistent “were provided by Chat GPT which also provided its legal source and assured the reliability of its content.”)…
ETHICS & MALPRACTICE RESEARCH TIP: New Articles from The Current Index to Legal Periodicals
- Alex B. Long, “Imposing Lawyer Sanctions in a Post-January 6 World,” 36 Geo. J. Legal Ethics 273 (2023). Long posits that the events surrounding the 2020 election and the January 6 attack on the Capitol provide the legal profession with an opportunity to take a fresh look at the standards for imposing lawyer sanctions and address existing shortcomings.
- Leslie C. Levin & Susan Saab Fortney, “‘They Don’t Know What They Don’t Know’: A Study of Diversion in Lieu of Lawyer Discipline,” 36 Geo. J. Legal Ethics 309 (2023). In many cases, the use of diversion instead of sanctions presents a viable alternative in disciplinary proceedings. This article provides a study of this tool.
- Raymond H. Brescia, “Teaching to the Tech: Law Schools and the Duty of Technology Competence,” Washburn Law Journal Symposium—Law in the Zoom Era: The Future of Virtual Lawyering, 62 Washburn L.J. 507 (2023). Washburn Law has been a leader in teaching law and technology, and this fascinating article (the entire symposium, for that matter) is a worthwhile read for every lawyer.
A BLAST FROM THE PAST: Doing the Right Thing
“Ethical behavior is doing the right thing when no one else is watching—even when doing the wrong thing is legal.”
—Aldo Leopold
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 4, No. 12
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