New Authorities: On the Use of Artificial Intelligence in Law Practice
Author: Dr. Michael H. Hoeflich
This article is featured in Volume 4, Number 12 of the Legal Ethics and Malpractice Reporter.
For additional guidance on AI and law practice, consider the following materials released throughout 2023:
1. 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.”)…
Just as the Court did before the advent of AI as a tool for legal research and drafting, the Court will continue to presume that the Rule 11 certification is a representation by filers, as living, breathing, thinking human beings, that they themselves have read and analyzed all cited authorities to ensure that such authorities actually exist and that the filings comply with Rule 11(b)(2). See Hon. Brantley Starr, “Mandatory Certification Regarding Generative Artificial Intelligence [Standing Order],” (N.D. Tex.) (“set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth).”)
2. Deloitte Legal, “Generative AI: A Report for Corporate Legal Departments,” (June 2023).
3. Ilona Logvinova, “Legal Innovation and Generative AI: Lawyers Emerging as ‘Pilots,’ Content Creators, and Legal Designers,” McKinsey & Co. (May 11, 2023).
We can look forward to even more soon from the New York State Bar Association Task Force on Artificial Intelligence. See David Alexander, “New York State Bar Association Task Force To Address Emerging Policy Challenges Related to Artificial Intelligence,” NYSBA.org (July 17, 2023).
READ THE FULL ISSUE OF LEMR, Vol. 4, No. 12
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