From the Litigation Practice.

Artificial Intelligence & The Law Stop Running … You Can’t Hide

January, 2024  | By Paul N. Farquharson

Paul FarquharsonWhat started as a cautionary tale of woe a few short months ago has quickly turned into what appears to be the next must-have cutting edge technological tool for lawyers. By now, we have all likely heard the tale of Mata v. Avianca in which generative artificial intelligence was employed by one party in the preparation of certain legal briefs. Much to the chagrin of that party, the artificial intelligence tool generated legal authority out of whole cloth, going so far as to generate fictitious cases and citations and attributing them to actual judges. Ultimately the offending party was sanctioned, which included a fine and an order requiring the party to notify the judges who were credited with authoring the fictitious case law.

The initial fallout from this debacle appeared to be a retreat from the use of artificial intelligence. For example, Judge Brantley Starr of the U.S. District Court for the Northern District of Texas issued a standing order requiring counsel to certify that artificial intelligence has not been used in briefs submitted to the court or to disclose the use of artificial intelligence in the creation of the briefs, certifying that all such briefing has been reviewed by an attorney.

Similarly, Judge Stephen Alexander Vaden of the United States Court of International Trade issued an order requiring counsel to disclose the use of artificial intelligence, identify the program used, and certify the non-disclosure of confidential or business proprietary information.

While orders are being issued by other judges around the United States, ranging from the cautionary to the prohibitive, at least one judge in Canada has suggested that the use of artificial intelligence could have reduced the legal fees sought by a prevailing party and reduced the requested fees accordingly.

So, what is a lawyer to do? It seems clear that the one thing the lawyer cannot do is run and hide from the issues that the mere existence of artificial intelligence in the legal arena raises. Even if the lawyer is content to continue using existing legal tools and resources, as artificial intelligence improves, the standard for legal competence may soon require that lawyers harness the power of artificial intelligence. In addition, as a matter of efficiency, clients—particularly sophisticated consumers of legal services—may demand the use of artificial intelligence to potentially reduce costs and increase quality.

Given the speed with which legal artificial intelligence has developed and the fact that it remains in its infancy, lawyers continue to be faced with certain pitfalls associated with its use.   Among those pitfalls are:

  1. The duty of candor with the court, i.e., does the generative artificial intelligence program use and disclose opposing or competing authority?
  2. How quickly will courts move from reticence to acceptance, and how can the lawyer balance differences in jurisdictions during that process?
  3. Does the generative artificial intelligence program protect client confidences and proprietary information? Most artificial intelligence programs store inputs for use in developing efficiencies and responses.
  4. The cost of entry can be problematic in terms of dollars, training, and confidence in the program and its results.
  5. How will ethical rules respond to billing protocols? For example, may a lawyer bill for expertise and knowledge in developing and editing the artificial intelligence prompt or inquiry?

Unfortunately, there are no solid answers to these questions. Yet, like most of the practice of law, there is value in spotting issues. These issues are some of the most pressing for lawyers as they begin to explore the artificial intelligence tools available now and on the horizon.

Finally, it is important to note that well-established legal resource companies are developing tools that seem to be sensitive to many, if not all, of the issues identified above. By way of example, Westlaw, LexisNexis, and Casetext are all promoting generative artificial intelligence services. Lawyers and law firms will soon be faced with the task of integrating artificial intelligence into their practices. Not only will clients demand the efficiencies associated with competent legal artificial intelligence services, practitioners may find that both ethical and competitive forces soon will require its use.

If you have any questions or comments about the contents of this article, please contact Paul Farquharson at pfarquharson@semmes.com or (410) 576-4742.