Code and Rules of Evidence Committee proposes statutory definition for generative AI
While the AI ethics opinion is helpful, Code and Rules of Evidence Committee members noted that it 'does not address obligations surrounding evidence and AI generated evidence'
Acting on a request to safeguard “the foundational principles of our legal system,” the Code and Rules of Evidence Committee is proposing a statutory definition for artificial intelligence.
The committee voted 28-1 to approve the proposal at an October 17 virtual meeting. Later the same morning, committee member Kristina Feher told the Standing Committee on Professionalism that the proposed definition is a “starting position.”
Feher heads an AI working group that is planning to produce a CLE on the emerging technology later this spring. Many Florida lawyers are still getting up to speed on AI, she said.
“A lot of people have a somewhat rough knowledge of what it is,” she said.
The proposed definition would be added to §90.951 (5) and would state: “‘Generative Artificial Intelligence’ includes any evidence created by a machine-based system that can, for a given set of human-defined objectives, emulate the structure and characteristics of input data in order to generate derived synthetic content including writings, photographs, recordings, images, videos, audio, text, and other digital content.”
Florida Bar staff are preparing to post the proposed definition for public comment and will circulate it to any interested sections and committees.
The Code and Rules of Evidence Committee noted that on January 19, Florida approved the nation’s first comprehensive guidelines for the ethical use of artificial intelligence in the practice of law.
Among other things, Ethics Opinion 24-1 recommends that a lawyer obtain “the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”
The special AI committee requested the ethics opinion and proposed a series of AI-related amendments to the comments to various Bar Rules, including the Ch. 4 Preamble: A Lawyer’s Responsibilities; Rule 4-1.1 (Competence); Rule 4-1.3 (Diligence); and Rule 4-1.6 (Confidentiality of Information), to name a few. The Supreme Court approved them August 29 in In Re: Amendments to Rules Regulating The Florida Bar – Chapter 4, Case No. SC2024-0032.
Unlike Bar rules, ethics opinions are non-binding. Comments to Bar rules are considered explanatory.
While the AI ethics opinion is helpful, Code and Rules of Evidence Committee members noted that it “does not address obligations surrounding evidence and AI generated evidence,” according to a meeting summary.
Committee Chair Katelyn Knaak Johnston asked her AI subcommittee to focus on three items — a definition of generative AI, a list of rules that may need to be amended to address discovery and notice of the use of generative AI, and a list of the professionalism concerns that are triggered by AI.
The committee also noted that earlier this year, the Legislature adopted section 106.145, Florida Statutes, which defines generative AI in the context of elections. The definition took effect July 1 and is nearly identical to the Code and Rules of Evidence Committee’s proposed language, but without a reference to “evidence.”
The new elections law defines generative AI as a “machine-based system that can, for a given set of human-defined objectives, emulate the structure and characteristics of input data in order to generate derived synthetic content including writings, photographs, recordings, images, videos, audio, text, and other digital content.”
The law also requires a political advertisement, electioneering communication, or “other miscellaneous advertisement of a political nature created in whole or in part with the use of generative AI” to bear a disclaimer.
Early last November, Ocala attorney Gordon Glover, a Florida Bar board member who co-chairs the special AI committee, wrote to the Code and Rules of Evidence Committee to request the proposed definition.
Noting that the Bar leads the nation in addressing AI concerns, Glover warned that “the foundational principles of our legal system hinge on the reliability and trustworthiness of evidence” and that AI “deep fakes” threaten that reliability.
The “hyper-realistic digital manipulations of audio and video pose a direct threat to the integrity of legal proceedings, as they can be used to create convincing but entirely fabricated pieces of evidence,” Glover warned.
In February, the Florida Conference of DCA judges wrote to the Rules of General Practice and Judicial Administration Committee and the Appellate Court Rules Committee, and directed them to consider amendments to Rule of General Practice and Judicial Administration 2.515 (Signature and Certificates of Attorneys and Parties) and Rule of Appellate Procedure 9.210 (Briefs), “or others to appropriately address lawyers’ use of AI in court filings.”
Fourth District Court of Appeal Chief Judge Mark Klingensmith, the conference chair, told the Bar News that appellate judges were growing more concerned after seeing some Florida lawyers file AI-generated court documents that contain “hallucinations,” or cites to non-existent judicial opinions.
Glover urged the Code and Rules of Evidence Committee to act swiftly.
“The potential for AI to disrupt the legal evidentiary process is not merely theoretical; it is an imminent reality that requires immediate and thoughtful action.”
