In an age of rapidly developing technology, attorneys and law firms have begun to utilize artificial intelligence in order to provide improved representation to clients. Last year, the American Bar Association released a study showing more than 20% of attorneys used or seriously considered using artificial intelligence tools. With artificial intelligence’s rise, those numbers will likely grow accordingly. However, as with any new and exciting tool, attorneys must also be cognizant of the pitfalls that accompany artificial intelligence.
Famously, in June 2023, the Southern District of New York sanctioned an attorney for his reliance on ChatGPT. ChatGPT itself was not the problem. What was problematic, however, was the attorney’s request to ChatGPT to provide case law to support his arguments responding to the defendant’s motion to dismiss. Instead of providing actual case law, ChatGPT fabricated eight citations to opinions that simply did not exist. The attorney did not use LEXIS, WestLaw, or any other service to fact check the opinions to determine their accuracy, currency, or validity. As a result, the court entered sanctions for the attorney’s willful use of artificial intelligence.
This is not to say that the usage of artificial intelligence is bad for attorneys. To the contrary, it offers significant benefits, including saving clients time and resources through document productions, summarizing testimony, and drafting correspondence. But, in doing so, attorneys and legal professionals must keep in mind multiple considerations.
As in all other ethical matters, the ABA’s Model Rules of Professional Conduct (MRPC) govern an attorney’s ethical conduct. Indeed, the usage of artificial intelligence affects multiple facets of the MRPC.
MRPC Rule 1.1 states, “[A] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Above all, attorneys must be competent in what they do—an obvious talking point, to be sure, but one that is integral and worth reminding. In using artificial intelligence, an attorney must know what the tool is and how to use it. Attorneys cannot use ChatGPT, for example, simply because it is new and exciting. Like any new tool or area of practice, attorneys need to become familiar with artificial intelligence before using it in order to provide adequate representation to the client.
Failure to do so risks situations like that attorney who used ChatGPT to generate fictitious case law and citations. Rule 1.4 – Communications
MRPC Rule 1.4(a)(1) states, “[P]romptly inform the client of any decision or circumstance with respect to which the client’s informed consent...is required by these Rules.” and MRPC Rule 1.4(b) states, “[A] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
While not all clients have strong feelings one way or the other regarding the usage of artificial intelligence, attorneys should err on the side of caution and communicate to keep their clients apprised of the decision to use it.
Indeed, there are multiple reasons why communicating artificial intelligence usage is beneficial to a healthy attorney-client relationship. Some clients may have moral hesitations regarding its use. If there is a particular cost involved with a new tool, then that must be conveyed, as well. Furthermore, MRPC 1.4(a)(1) ties into MRPC 1.6(c) because attorneys have a duty to ensure that sensitive documents are kept confidential. Obtaining permission to use artificial intelligence for storing or reviewing certain sensitive documents will be necessary to develop and maintain a strengthened relationship.
Rule 1.6 – Confidentiality of Information
MRPC Rule 1.6(c) states, “[A] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
As mentioned above, maintaining confidentiality of a client’s documents is paramount. Multiple document-review tools exist that allow attorneys to cut down on time and costs with prompts—requesting that the artificial intelligence tools filter out certain documents and flag responsive documents to be turned over in discovery. Doing so clearly has great benefits for clients as it significantly lowers the amount of time (and cost) needed to conduct a document review. The service, however, must maintainhigh standards of safekeeping so that a client’s sensitive and confidential documents are not accidentally disclosed or stolen.
The attorneys clearly have a duty to vet the artificial intelligence tool to ensure a client’s documents or work product are kept safe and secure.
Rule 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers
MRPC Rule 5.1(a) states, “[A] partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”
There are never any guaranteed outcomes in any profession, legal included. But law firms need to strive to follow tenets of the MRPC when utilizing artificial intelligence. Regardless of the size of the law firm, policies need to be in place in order to advise and train attorneys on artificial intelligence should that firm choose to incorporate it as part of its practice. The firms, and leadership within firms, have a duty to make sure attorneys and legal professionals are using best practices that comport with the MRPC when incorporating artificial intelligence.
Artificial intelligence is, without doubt, exciting, promising, and useful to the legal profession. But the MRPC requires that attorney engage in the highest standards of ethical conduct while using it. The stakes and potential damage to clients, and an attorney’s reputation, are too great to not fully consider the MRPC. In following the MRPC when using artificial intelligence, attorneys will continue to provide clients effective and improved representation while strengthening the attorney-client relationship.
About the Author:
Lee Hurwitz is a shareholder at Segal McCambridge. lhurwitz@smsm.com