Month: December 2023

A lawyer’s duties when using artificial intelligence.

Michael

As we approach 2024, I’ll address one of the “hot topics” of 2023: legal ethics and the use of Artificial Intelligence (AI).

I’ve been straightforward on the issue.

Rule 1.1 requires a lawyer to provide competent representation. Comment [8], captioned “Maintaining Competence,” states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  AI is relevant to the practice of law.  Ergo, a lawyer should be aware of the risks & benefits associated with its use.

This year, several incidents highlighted one of the risks: legal memos created by generative AI that include citations to cases that do not exist in real life.[1] The most notable example involved the Avianca matter that I blogged about here.[2] 

In my opinion, the lesson to be drawn from the “hallucination” examples is NOT that a lawyer violates the rules by using generative AI to draft memos or motions. Rather, it’s that a lawyer who does so remains responsible for the work and should check the cites.[3]

Of course, having described it as “straightforward” above, I recognize that my guidance verges towards the simplistic. The bar deserves more than “your duty is to understand AI’s risks and benefits.” So, today, I’m sharing three resources that I hope will help.[4]

Earlier this year, the California State Bar’s Standing Committee on Professional Responsibility and Conduct published Practical Guidance For The Use Of Generative Artificial Intelligence In The Practice Of Law. It includes “guiding principles” that address various duties owed by lawyers. Without delving into each, they are confidentiality, competence, diligence, communication, fees, meritorious claims & contentions, candor to a tribunal, supervising staff, acting at the direction of a supervising lawyer, complying with court rules, abiding by the law, and avoiding conduct that involves prohibited bias.

More recently, the Florida Bar published for comment Proposed Advisory Opinion 2024-1 — Regarding Lawyers’ Use of Generative Artificial Intelligence. The opinion discusses the duties of confidentiality, oversight, fees & costs, and lawyer advertising.

Finally, in November, JDSupra posted Ethical AI Guideposts for Lawyers Using Generative AI. Besides good tips, it includes an interesting (to me) comment on the judicial response to hallucinations:

“Judge Xavier Rodriguez, a learned U.S. District Judge in the Western District of Texas, eloquently encapsulated the problem of judicial over-regulation in response to generative AI missteps:

‘Some judges (primarily federal) have entered orders requiring attorneys to disclose whether they have used AI tools in any motions or briefs that have been filed. This development first occurred because an attorney in New York submitted a ChatGPT-generated brief to the court without first ensuring its correctness [Mata case referenced above]. The ChatGPT brief contained several hallucinations and generated citations to nonexistent cases. In response, some judges have required the disclosure of any AI that the attorney has used. As noted above, that is very problematic considering how ubiquitous AI tools have become. Likely these judges meant to address whether any generative AI tool had been used in preparing a motion or brief. That said, if any order or directive is given by a court, it should merely state that attorneys are responsible for the accuracy of their filings. Otherwise, judges may inadvertently be requiring lawyers to disclose that they used a Westlaw or Lexis platform, Grammarly for editing, or an AI translation tool.’ 24 The Sedona Conference Journal at 822.”

Over the next few months, I’ll try to do a detailed post about each of the duties implicated by the use of AI. Not today.  Today’s goal was to share resources.

I’ll end with this.

I’ve long urged lawyers not to fear technology.  For almost as long, I’ve argued that it’s usually not technology that gets a lawyer into hot water. It’s something that would get the lawyer into hot water even if done in a non-digital world.  For example, failing to check cites before submitting a memorandum. Yes, the Avianca case resulted in the court sanctioning the lawyers. However, in doing so, the judge specifically noted that “[t]echnological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance.”[5]

As always, let’s be careful out there. 

[1] Known as a “hallucination,” this risk is not limited to the legal profession. Rather, at least in its early stages, generative AI sometimes presents as fact something that is not.

[2] See also, Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, (S.D.N.Y. June 22, 2023).

[3] As I’ve stated at seminars, if a lawyer asked an associate or paralegal to prepare a memo and submitted it to the court without checking the work, we wouldn’t be calling to ban the use of associates or paralegals if, in this instance, the associate or paralegal intentionally included fake citations that the lawyer failed to notice. We’d be reminding lawyers that they are responsible for their work.

[4] I’m struck by how much generative AI drove 2023’s discussion of the legal ethics issues associated with AI.  AI isn’t new and isn’t limited to generative AI. Indeed, in 2019, Squire Patton Boggs published Legal Ethics in the Use of Artificial Intelligence.  The posts tips remain relevant today.

[5] Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at 1 (S.D.N.Y. June 22, 2023).

Five for Friday #289

Michael 5 Comments

Welcome to Friday and the 289th legal ethics quiz!

A few weeks ago, the quiz included a reference to a Burger King jingle from my youth.  Today’s intro harkens back to another 1980s ad campaign.

Oh, and this intro stinks.

Just over a year ago, I posted Finally – misconduct that left even me in disbelief.  The post shared the story of an Ohio lawyer who had been charged with professional misconduct. A few weeks later, I followed up with this post in which I outlined how the lawyer might be charged in Vermont given that we do not have the same rule that he was charged with violating in Ohio.

Today, thanks to an eagle-eyed regular reader who alerted me to the fact, I’m here to report that the Ohio charges have been resolved.  As reported two days ago by Court News Ohio, the Ohio Supreme Court imposed a one-year suspension with six months stayed. 

I know what you’re thinking: “Mike, what’d this lawyer do?” 

As stated in the opening paragraph of the Ohio Supreme Court’s opinion, the lawyer was charged with “throwing a feces-filled Pringles can into the parking lot of a victim-advocacy center involved in a capital-murder case in which Blakeslee was representing the defendant.”

You read that correctly.

At the trial level, the parties advanced competing arguments about the lawyer’s intent. The disciplinary prosecutor contended that the lawyer intentionally targeted the victim-advocacy center. Here’s how the Ohio Supreme Court characterized the lawyer’s position:

  • “During his disciplinary hearing, [the lawyer] testified that he had engaged in similar misconduct on at least ten other occasions that year and that he randomly chose the locations where he deposited the Pringles cans containing his feces. He also specifically denied having any knowledge that the parking lot in question belonged to [victim advocacy center] when he threw the can from his vehicle.”

That’s right.  Charged with intentionally targeting the victim advocacy center, the lawyer’s defense was, essentially, “oh no, it had nothing to do with them. I’ve done this before. Many times.”

I’ll stop there. For more detail, including the fact that at both the trial level and intermediate stage of review, the recommended sanction was a public reprimand – not suspension – check out the full opinion.

Oh – the other jingle?

Let’s just say that the Ohio story doesn’t exactly leave me with the fever for the flavor of new Pringles.

As always, let’s be careful out there.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vermont.gov
  • Team entries welcome, creative team names even more welcome.
  • I’ll post the answers & Honor Roll on Monday,
  • Please consider sharing the quiz with friends & colleagues.
  • Share on social media.  Hashtag it – #fiveforfriday.

Question 1

It’s rare for the Rules of Professional Conduct to refer to specific practice areas or types of cases.  However, there’s one rule that both to criminal defense and divorces.  What’s the subject of the rule?

  • A. Conflicts of Interest.
  • B. Communication.
  • C. Candor to the Tribunal.
  • D. Contingent Fees.

Question 2

Sadly, this question is one that I receive between 5-8 times per year.

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer:

  • A.  must not disclose Client’s intent.
  • B.  must disclose Client’s intent.
  • C.  may disclose Client’s intent.
  • D.  this situation is not covered by the Vermont Rules of Professional Conduct.

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refer to:

  • An unrepresented person who is adverse to Lawyer’s client and who inadvertently communicated with Lawyer.
  • B.  a represented person who is adverse to Lawyer’s client and who directly communicated with Lawyer without going through counsel.
  • C.  A juror who approached Lawyer as the two were leaving the courthouse at the lunch break during a trial.
  • D.  A person who discussed potential representation with Lawyer but who did not retain Lawyer.

Question 4

Later today, I’m doing a CLE for the VBA’s Bankruptcy Section. Depending on how the seminar goes, I might get to a section where I urge caution when it comes to (1) last minute changes to wire instructions; and (2) an out of state client who only communicates via email and who is seeking representation to assist in collecting a debt allegedly owed by someone in Vermont.

Each is an example of common ____________ that target lawyers.  (Correct answers will not necessarily include the same amount of words that fill in the blank)

Question 5

Again, I’m doing a presentation for the VBA’s Bankruptcy Section later today. So, bankruptcy is the topic for Queston 5.   

I’m feeling generous. One question involves an old-time holiday classic, while the other relates to a much modern pop culture reference to bankruptcy.  Choose your own adventure!

Question 5A – The Classic

Name the holiday movie in which George is so mad that Uncle Billy misplaced $8,000 that he yelled:

  • “Where’s that money, you stupid, silly old fool? Where’s the money?! Do you realize what this means? It means bankruptcy and scandal and prison! That’s what it means. One of us is going to jail! Well, it’s not gonna be me!”

According to a current day bankruptcy expert:

  • “It’s unclear whether George meant bankruptcy for himself or for the Building & Loan.  Even less clear is whether the B&L would have been eligible for bankruptcy protection under the Bankruptcy Act of 1898 (“banking corporations” were ineligible).  It definitely would not be eligible under Section 109 of the Bankruptcy Code (specifically excluding “building and loan associations”) from bankruptcy eligibility.”

Question 5B – More Modern

My favorite pop culture bankruptcy.  It’s from a TV show that aired from 2005-2013.  The following lines are from Season 4’s episode Money. I’ve changed the speakers’ names to their first initials. Your task: name the show.

C:           Listen, I’ve got the answer. You declare bankruptcy, all your problems go away.

M:          How would that help Creed? In Monopoly when you go bankrupt, you lose.

C:           You don’t go by Monopoly man, that game is nuts. Nobody just picks up “get out of jail free” cards, those things cost thousands.

M:          That is a good point.

C:           Bankruptcy, M, is nature’s do-over. It’s a fresh start, it’s a clean slate.

M:          Like the witness protection program.

C:           Exactly.

O:           Not at all.

M:          I’ve always wanted to be in the witness protection program. Fresh start, no debts, no baggage. I’ve already got my name picked out, Lord Rupert Everton. I’m a shipping merchant who raises fancy dogs. That’s the life.

M.          (standing on a chair) I . . . DECLARE . . . BANKRUPTCY!

O:           Hey, I just wanted you to know that you can’t just say the word bankruptcy and expect anything to happen.

M.   I didn’t say it. I declared it.