Generative AI: Can The Stakes Get Higher?
Scott Westheimer
By now, we’ve all heard the case where two New York lawyers were sanctioned for submitting an artificial intelligence generated brief that had an artificial hallucination that invented nonexistent opinions to support their position.
While our first inclination may be to think this is unbelievable, in reality it’s profoundly serious for the profession. And similar occurrences are happening in Florida courts. The age of AI is upon us and the race to incorporate its considerable abilities into the practice of law is on.
While a majority of Florida lawyers have probably not yet experienced AI, with each passing day we learn more about what ChatGPT or Google Bard or Harvey or other AI platforms can do.
Recent surveys from Thomson Reuters and LexisNexis show that legal professionals have mixed feelings about the use of generative AI for legal work. A majority of respondents in both surveys were optimistic about the business potential of AI. Many noted improved productivity, increased profitability, and prospects for new sources of revenue as possible benefits. Fears, however, remained about the disruption AI could cause to the industry. A full 88% of lawyers were concerned about the ethical implications of using AI for their work.
That’s why one of my first acts as president was to create a special committee to study generative AI and its impact on the profession.
The Special Committee on AI Tools & Resources — co-chaired by Board of Governors members Duffy Myrtetus and Gordon Glover — has been meeting weekly to examine how generative AI interacts with our current rules, what may change in various aspects of the practice of law, its impact on access to justice (especially relating to the self-represented), and the effect on court clerks.
One subcommittee is focusing on the Rules of Professional Conduct, and more specifically, the duty to competence, duty of confidentiality and fiduciary care, duty of client notice and consent, and the duty of accountability and supervision. The subcommittee has already submitted proposed amendments to the Rules Committee that would provide commentary to Bar rules alerting Florida lawyers to their responsibilities regarding AI, such as considering safeguards when assistants use the technologies and how AI may create risks to the lawyer’s duty of confidentiality. It is expected the panel will request a proposed ethics opinion on these issues as well.
Another subcommittee is examining such things as AI certifications in pleadings and disclosures to the court. Those would include whether you have to disclose that you were using AI in filings, and issues surrounding the integrity of evidence, including identifying evolving challenges for the courts from attorneys using AI, like electronic measures to verify authorities cited, and confirming the authenticity of documents, audio, and video recordings admitted into evidence.
Time is of the essence and the committee is on pace to present proposed rule amendments and a draft an ethics opinion to the Board of Governors for consideration in December.
Any proposed changes to our rules will be noticed and written about in The Florida Bar News. Then we will need your comments so we may put the best product forward.
We need to remain vigilant as the use of generative AI is poised to expand greatly. Bloomberg Intelligence reported that the AI market is expected to grow into a $1.3 trillion market over the next 10 years, up from just $40 billion in 2022.
Writing for Brookings, John Villasenor, a professor of electrical engineering, law, public policy, and management at UCLA, said, “law firms that effectively leverage emerging AI technologies will be able to offer services at a lower cost, higher efficiency, and with higher odds of favorable outcomes in litigation. Law firms that fail to capitalize on the power of AI will be unable to remain cost-competitive, losing clients and undermining their ability to attract and retain talent.”
The stakes could not be higher, and we all need to work together to get this right.
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