Ethics Corner Article

Dear Ethics Committee,

As a general practice New Hampshire lawyer, what ethical obligation(s) do I have to employ Artificial Intelligence (“AI”) in my day-to-day practice?   

Currently, the benefits and risks associated with AI have caused discussion regarding its use in all industries, including the legal profession.  In a March 20, 2023 publication entitled “How AI will revolutionize the practice of law,” the Brookings Institute states AI “will be able to offer services at lower cost, higher efficiency, and with higher odds of favorable outcomes in litigation.”  On October 17, 2023, Harvard Law School held an event entitled “Artificial Intelligence and the Law.”  The discussion headline stated “While AI can make adjudication, enforcement, and legal practice generally more efficient, it has caused concern for broad societal issues such as misinformation, bias, and civil rights.”  Also, in response to the rapid advancement of AI, the American Bar Association (“ABA”) established the “ABA Task Force on Law and Artificial Intelligence.”   This Task Force, according to ABA President May L. Smith, will “examine the impact of AI on law practice and the ethical implications for lawyers” and address the “promise and perils of emerging technologies.”  The Task Force will specifically explore:

  • Risks (bias, cybersecurity, privacy, and misuses of AI such as spreading disinformation and undermining intellectual property protections) and how to mitigate them
  • Emergent issues with generative AI
  • Utilization of AI to increase access to justice
  • AI governance (the role of laws and regulations, industry standards, and best practices)
  • AI in legal education

What does all this mean for a lawyer? At the very least, lawyers must be diligent in maintaining a level of competency in technology as it relates to the legal profession.  N.H. R. Prof. Conduct Rule (“Rule”) 1.1 provides in part, “A lawyer shall provide competent representation to a client.”  Under Comment 8 to ABA Model Rule 1.1, competence in the legal profession also means that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (emphasis added).

Understanding the benefits and risks associated with AI, in addition to all technology that relates to the legal profession, remains a never-ending task for a lawyer.  While it may seem inviting for a lawyer to employ AI and all that it offers in daily practice, lawyers must exercise caution and understand its limits, as with any technology.

We observed the impact of unchecked reliance of AI in the highly publicized case of Mata v. Avianca, No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023).  In that case, lawyers associated with a law firm filed a legal memorandum containing certain cases that did not exist.  At the sanctions hearing, the lawyer who was the principal author of the memorandum testified that he was “operating under the false perception that this website [i.e., ChatGPT] could not possibly be fabricating cases on its own.” Id.  He claimed that he “had not previously used ChatGPT and became aware of it through press reports and conversations with family members,” and thought that it was a “super search engine.”  Id.  The lawyer also testified that he did not conduct any other research outside of the AI resource.  Id.  The court issued sanctions under Federal Rule of Civil Procedure 11[i], stating “[t]echnological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance. But existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.”  Id. The court went on to state that the law firm “abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question.”  Id.  This case shows that, while it may be appropriate for lawyers to utilize AI in legal research, it is nevertheless important to properly vet the information produced through AI.  Examples of vetting include ‘Shepardizing’ on Lexis or using ‘KeyCite’ on Westlaw.  In addition to violations of Federal Rule of Civil Procedure 11 and its state counterparts, lawyers should also be cautious of the Rules of Professional Conduct, and in particular, Rule 3.3, which requires candor to the tribunal, Rule 3.4, which requires fairness to the opposing party and counsel, and Rule 4.1, which requires truthfulness in statements to others.  Arguably, an attorney who does not properly vet AI-produced information violates each of these Rules.

Other considerations for using AI in the practice of law include how “user information” is used, where it is stored, and what protections exist, if any, from disclosing said information to third parties.  Rule 1.6 requires that lawyers safeguard confidential information.  While lawyers may be diligent in protecting the disclosure of confidential information, it is important to identify situations where mistakes may occur and result in disclosing confidential information.  Rule 1.6 (c) provides “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  In using AI, or any other software in the legal profession, it is therefore prudent for the lawyer to understand how the software works to avoid disclosure of confidential information.  It is also important to review the terms and conditions associated with the use of AI, and in particular, the privacy policy, which may state that it utilizes some or all of the user information submitted to AI.

There are several other ethics rules that an attorney should be mindful of when using AI.  For instance, Rule 5.1 requires that managerial lawyers oversee their subordinates and Rule 5.3 requires that all lawyers monitor their non-lawyer assistance to ensure compliance with the Rules of Professional Conduct.  The use of AI may fall within the scope of these Rules if said use is not checked properly. As noted above, it is important to review the terms and conditions of the AI tool, like data protection measures, to ensure that its use does not go outside ethical parameters.

Similarly, Rule 2.1 requires that lawyers exercise independent professional judgment.  Lawyers must understand the design and operation of AI systems when they rely on AI-produced information in order to “exercise independent professional judgment.”  Like in Mata, it is important for an attorney to “check” the AI’s work and ensure any information provided by the AI service is accurate.

Rule 8.4 (c) implicates misconduct for a lawyer “engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation.”  For the reasons provided above, a lawyer’s unchecked use of AI may constitute a violation of this Rule.

Finally, and while this Ethics Corner is not an exhaustive list of all potential Rule violations associated with AI, Rule 8.4 (g) prohibits a lawyer from taking:

any action, while acting as a lawyer in any context, if the lawyer knows or it is obvious that the action has the primary purpose to embarrass, harass or burden another person, including conduct motivated by animus against the other person based upon the other person’s race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status or gender identity.

Continuing with the theme of this piece, it is necessary for the lawyer using AI to critically review the results that it produces.  Lawyers should not rely on the integrity or the truth of the information produced.  Instead, lawyers must verify the accuracy of the results and have the ability to explain it to a court if questioned.  Thus, lawyers must employ appropriate safeguards to avoid unverified and unforeseen results, which may result in ethical violations and/or court sanctions.  Appropriate safeguards may include understanding the research algorithm, technology and/or limitations of the AI.  Applying appropriate safeguards and creating policies in your firm and/or legal practice is an important step in utilizing AI.  The Ethics Committee anticipates publishing additional Ethics Corner Articles addressing the use of AI in the legal profession.

This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its February 8, 2024. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing: Robin E. Knippers at reknippers@nhbar.org.

 

[i] “Under Rule 11, a court may sanction an attorney for, among other things, misrepresenting facts or making frivolous legal arguments.” Mata v. Avianca, No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y June 22, 2023.) (quoting Muhammad v. Walmart Stores East, L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam)).