Navigating the risks and responsibilities of AI in the law
'It’s an old truism in human nature that we’re afraid of what we don’t know. Fax machines, email, cloud computing, E-discovery. They’ve all caused consternation in the legal world when they first started.'
Generative AI is saving lawyers time and money, but if used improperly, it could cost them their livelihoods, warn two of Florida’s leading ethics experts.
Belmont University College of Law Professor Tim Chinaris notes that a recent Florida Bar survey showed 80% of lawyers haven’t used AI, and 80% believe it should be regulated.
“What does that tell us?” Chinaris said. “It’s an old truism in human nature that we’re afraid of what we don’t know. Fax machines, email, cloud computing, E-discovery. They’ve all caused consternation in the legal world when they first started.”
Lawyers shouldn’t be afraid to use another legal tool, Chinaris assured.
Elizabeth Tarbert, the Bar’s director of Lawyer Regulation, agrees. She notes that Westlaw, Fastcase, and Lexis, are powered by the technology.
“I use AI. I used AI to prepare this PowerPoint,” she said. “It’s handy.”
Generative AI, “is the thing lawyers are worried about,” Tarbert stressed. It’s the tool that allows lawyers to input the facts of a case, and within seconds, receive a beautifully written brief.
But lawyers who use generative AI would be wise to remember Florida Bar rules, and their ethical obligations, say Tarbert and Chinaris.
The two appeared June 20 in an Orlando ballroom to present a segment of “Legal Intelligence: Navigating the Impact of AI on the Legal Practice.”
Sponsored by the Board Technology Committee as a Presidential Showcase for the 2024 Annual Florida Bar Convention, the half-day seminar was certified for 4.5 General CLE; Ethics 1.0 hour; Technology 3.0 hours. (Course No. 8328.)
Chinaris said the advent of AI tools implicates Florida Bar Rule 4-1 (Duty to Competence).
“How much technology competence is enough?” he said. “The Supreme Court amended that rule a few years ago to specifically mention technology.”
That wasn’t all, Tarbert said.
“During the same timeframe, the Court amended our CLE rule to require us all to take 3 hours of technology CLE every reporting cycle, and that is to underscore how important this issue is.”
Some lawyers may dive into generative AI too quickly, and think they have the competence to take on legal matters that are outside of their practice area, Chinaris warned.
Tarbert said other lawyers run the risk of “waiting too long” to become familiar with a technology that is transforming the profession.
Tarbert urged the audience to also consider Rule 4-5.3, (Responsibilities Regarding Non-Lawyer Assistants).
“You are allowed to use non-lawyer assistants, whether it’s assist-ANTs, or assist-ANCE, which is, you get assistance from some other source,” she said. “However, when you do that as a lawyer, you are responsible for the work.”
Just as a lawyer is required to check a paralegal’s work, or a first-year associate’s work, before filing it with a court, lawyers have an ethical obligation to check any documents generated by AI, Tarbert and Chinaris stress.
Chinaris referred to the infamous example of New York lawyers who were disciplined for filing an AI-generated brief in a federal court that cited to imaginary cases.
The incident is infamous, but not every lawyer learned from the bad example.
“There’s a case in Florida where a lawyer was suspended in the Middle District of Florida for a year for doing the exact same thing,” Tarbert said.
Federal Rule 11, Tarbert said, calls for sanctions for not being truthful. Signing a federal pleading is a pledge, she said.
“You are signing that you are not filing the pleading for an improper purpose, like just to embarrass or delay someone, that you know there are reasonable facts that underlay a claim or defense, and either you have that evidence now that shows that, or you believe that discovery is going to reasonably lead you to that evidence that’s going to support your claim,” she said.
Chinaris, who represents lawyers in disciplinary cases, pointed to Florida Bar Rule 4-3.3 (Duty of Candor to the Court).
“I always tell people that the three most sure ways to get into serious disciplinary trouble are a criminal conviction, stealing from a trust account, and lying to a judge,” he said. “The real responsibility here as a lawyer, is to make sure that things are presented to a court truthfully, accurately, and without any misleading omissions.”
Tarbert said she couldn’t agree more.
“Lying to a court can either be a rehabilitative suspension, or even disbarment,” she warned. “Because, as the court has said numerous times, this is a system that depends on honesty. If people don’t follow the rules and play fair, then we’re not getting a just result.”
