Artificial Intelligence for Lawyers: Friend, Foe, or Both?
As artificial intelligence (“AI”) becomes more integrated into legal practice, lawyers must exercise care to use these tools responsibly and in full compliance with their ethical duties set forth in the rules of professional conduct. While AI has been available for years, Generative AI (“GenAI”), a relatively new tool, is rapidly transforming legal practice in ways that offer significant benefits but also raise new ethical and professional considerations. GenAI is a type of AI trained on data (text, images, data, music, computer code) that can generate new information, content, and insights. But if the GenAI lacks proper safeguards, it may “hallucinate,” meaning it can provide false information in response to prompts due to its design focus on pattern-based content generation. This article will focus on two critical risks for lawyers: (1) relying on GenAI-generated outputs without verification and (2) making unauthorized disclosures of client confidences when using GenAI tools.
The Lawyer’s Duty of Truthfulness
A number of the American Bar Association Model Rules of Professional Conduct (“ABA MRPC”) address a lawyer’s duty to be truthful: ABA MRPC 3.3: Candor Toward the Tribunal; ABA MRPC 4.1: Truthfulness in Statements to Others; and ABA MRPC 8.4: Misconduct, which prohibits lawyers from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” Lawyers may violate these rules when they rely on GenAI-generated citations—particularly those that are fabricated—
and then file motions or pleadings containing such inaccuracies. Judges nationwide have admonished that AI tools are not a substitute for legal research and that attorneys remain responsible for the veracity of every citation submitted. A claim of ignorance—that the lawyer did not know that the citation misstated the law or was entirely nonexistent—is not a defense.
In a recent federal case in Alabama, a court sanctioned a criminal defense attorney who used hallucinated cases provided by a GenAI tool in motions that he did not verify prior to filing such motions. The court cited a string of cases involving similar misconduct by attorneys across the country and then listed the harms caused by the use of hallucinated cases in motions before the court, which include:
- wasting the time and money of the opposing party;
- wasting the court’s time and resources;
- causing delays in a case (indeed, the client in the underlying case decided to change counsel due to the use of hallucinated cases, even though the change would significantly delay his own trial);
- causing potential harm to judges and courts that were unfairly identified as being part of the phony court opinions;
- causing potential harm to parties that were unfairly identified as being part of the phony court opinions; and
- causing public cynicism and doubt about the reliability of the judicial system.
As part of the lawyer’s sanction, the court ordered him to file a copy of the court’s opinion in all matters where he appeared as counsel and final judgment had not been entered, as well as in any court wherein he appears as counsel for twelve months after the date of the court’s order. The lawyer was also ordered to provide a copy of the order to any jurisdiction in which he was licensed to practice law.
To meet these obligations under the ABA MRPC, lawyers must understand the limitations of GenAI tools. Law firms may want to consult with legal-tech specialists, consider bar association guidance, and draw on peer experience to determine which GenAI tools best fit their needs. While GenAI tools can assist with idea generation and preliminary drafting, they cannot replace independent legal judgment. Nor can attorneys outsource their responsibility to file truthful and accurate pleadings to GenAI. Lawyers should treat GenAI tools as they would an inexperienced law clerk. Lawyers must verify every case citation, statute, or regulation provided by a GenAI tool to ensure compliance with ethical duties.
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