I can’t speak for all of those who remember when the video game Pong was new technology, but my sense is that many of us see the acceleration of Generative AI (GAI) as unnerving, if not altogether frightening.  GAI is a very broad term but has been described as developing systems to replicate the intellectual processes of human beings, i.e. thinking, analyzing and creating as if human.  In the blink of an eye, GAI seems to have permeated our professional lives. It can be a tool with amazing benefits or harmful consequences if used improperly.  Its use in many facets of the practice of law highlights potential risks of GAI.  Attorneys are encouraged to stay abreast of these changes and to manage the risks of GAI in a way to protect their clients.  

The Risks of the “Shortcut” – Hallucinated Legal Argument

For centuries lawyers have researched prior cases and supported their clients’ positions before the court by filing written legal arguments describing (arguing) why the propositions of law contained in those decisions (precedent) support the matter at issue to be decided by the court in their client’s favor. Over the past 3 decades or so lawyers in law libraries with legal pads surrounded by volumes of books gave way to on-line legal research where search terms generated numerous cases supporting a specific point of law or procedure.  Legal research has evolved even further with the advancement of GAI as well.

There have been several cases over the past year or so where lawyers have tried to shortcut traditional legal research and writing by prompting GAI to generate legal arguments in support of their client’s position – basically the same idea as a college student using GAI to write a term paper.  Lawyers have submitted these GAI-generated documents to the court as their own work product.  Currently, courts do not prohibit this practice if the caselaw and legal principles stated are accurate.  The problem, however, has been that “AI hallucinations” in the GAI-written documents have included completely fictional and invented case decisions, have provided fake citations to those decisions, and crafted arguments based upon those non-existent propositions of law that have no basis in actual legal precedent.  When these fictional legal documents are discovered by the court it creates significant problems for the lawyer and client. 

Lawyers have ethical obligations to clients and to the court system to check the veracity of the caselaw used to support their arguments.  Referred to as candor before the court, a lawyer must have a basis in the law and in fact to support a position argued before the court.  So, attentive lawyers would have caught those “hallucinations” which had no basis in reality.  The point is that even a sophisticated system such as GAI requires oversight.

Ethical and Practical Consideration for use of GAI 

In July, 2024, the American Bar Association (ABA) published Formal Opinion 512 from its Standing Committee on Ethics and Professional Responsibility addressing the growing use and potential pitfalls of GAI.  States and courts also are following suit and publishing their own versions of how the use of GAI by lawyers may be viewed and disciplined.  ABA Opinion 512’s Introduction provides excellent descriptions of the different ways in which AI is used in the practice of law.  For instance, in large complex litigation with huge numbers of significant documents AI helps attorneys and paralegals search through thousands upon thousands of digitally copied documents to identify significant names, words, and phrases.  This use of AI helps streamline the often laborious and costly pretrial discovery process.  AI can also assist lawyers to quickly evaluate a judge’s past decisions upon a particular topic or procedural rule to gain some insight into how he or she may rule on an issue in their case.  In large mergers and acquisitions AI helps with the due diligence necessary to complete the transaction.  Clearly, AI is not merely a curiosity in the practice of law but rather becoming an integral component of the profession supporting many different functions of attorneys.

Why is all of this important to non-attorneys?  The answer lies in the fact that attorneys are duty-bound to be competent advisors, advocates and representatives of their clients. In Opinion 512 the ABA emphasizes that the use of GAI may obligate attorneys to consider how such use may bear upon a number of their ethical obligations to clients, such as confidentiality of client information, the duty to communicate with a client and keeping a client apprised of how the client’s goals and objectives will be met, not to mention the aforementioned duty of candor before a tribunal in what is filed with the court. 

As to confidentiality of client data, the use of a GAI tool may require inputting the confidential information into the query in order to generate a specific result.  The question becomes whether the lawyer is familiar enough with the GAI tool to ensure those confidences are protected.  Likewise, consideration should be given to whether the GAI tool is designed in a way to protect confidential information, whether others inside the law firm have access to the information when they are using the GAI tool which could disclose one’s own client’s confidences.  Effective storage of confidential information is also a consideration when using GAI.

Those wishing to retain counsel should consider having an open discussion with their attorneys about how GAI may be used in their representation, including descriptions of what types of AI may be used and what protections the attorneys will employ for the storage and protection of confidential information.  If the attorney plans to use GAI to research and draft proposed arguments to be submitted to the court, a client may wish to have the attorney describe how such use will ensure accuracy.  If the goal of the representation is to negotiate or review a proposed contract, seeking information from the attorney as to whether GAI will be used to review and draft alternate language may be considered.  Whether using GAI or not, at the end of the day an attorney is responsible for his/her work product.  A client may consider seeking further details as to how GAI may play a role in the work.