The Legal Intelligencer

It was only a matter of time before generative artificial intelligence (AI) made its way into the mainstream of the legal profession. Lawyers have adapted to technological advancements before, including the use of computers and smartphones, and will in time come to adapt to AI’s integration in the legal practice. Attorneys who use AI programs should do so cautiously as this new level of technology evolves. This article, an overview of some of the many implications of AI for law firms and lawyers, sheds a spotlight on some jurisdictional developments related to AI and the practice of law, and highlights recent pitfalls involving the misuse of AI by practitioners.

Implications of AI for Law Firms and Lawyers

As with all new technologies, AI brings with it a plethora of potential benefits in the form of improving efficiency and reducing costs. Law firms and lawyers are increasingly engaging with AI programs and tools in conjunction with document reviews, legal research, contract drafting and the preparation of legal briefs. There are, however, certain limits and uncertainties that come with the use of this evolving technology.

Of paramount concern is the recognition that AI programs are not a substitute for the professional judgment and skill of an attorney. Attorneys must still verify the accuracy of their work, and may not rely entirely on the accuracy of AI assistance, particularly when submitting materials to a court. Additionally, a lawyer who relies on AI to synthesize a large amount of written material should proceed cautiously while maintaining the professionalism and skill that is required in the preparation of legal documents. The failure to do so increases both the risk of a potential malpractice claim as well as possible ethical infractions.

For example, in October 2023, rapper and member of the hip hop group Fugees, Prakazrel Michel (stage name Pras) filed a motion for new trial after a federal jury found him guilty of conspiracy and fraud charges. The charges related to his alleged role in orchestrating an illegal lobbying campaign using foreign funds to influence government officials into dropping an embezzlement investigation of a Chinese national. Pras has argued, in part, that his trial counsel was ineffective and prejudiced his defense because he relied on AI software to write a closing argument replete with frivolous arguments and which confused the issues central to the case. The company that developed the AI program publicized its use throughout the case as having made history “becoming the first use of generative AI in a federal trial. ”See “First Use of AI in Federal Trial: Eye Level’s Litigation Assist Aids Defense in Pras Michel Fraud Case,” Eye Level(May 10, 2023). What may have seemed convenient and cutting edge at the time, has likely caused more problems than it was worth.

Jurisdictional Developments

Increasingly, courts and state bar ethics committees have weighed in on the use of AI in the practice of law and have issued guidance regarding ethical implications and recommendations for complying with the RPCs. See, e.g., “Notice to the Bar, Legal Practice: Preliminary Guidelines on the Use of Artificial Intelligence by New Jersey Lawyers” (N.J. Jan.24, 2024); Florida Bar Ethics Op. 24-1 (Jan. 19, 2024); Michigan Ethics Op. JI-155 (Oct. 27, 2023)(noting that the increasing use of AI require judges to understand how such technology impacts the judiciary’s conduct and the court’s docket). Florida Ethics Opinion 24-1 provides that attorneys who use AI “must take reasonable precautions to protect the confidentiality of client information, develop policies for the reasonable oversight of generative AI use, ensure fees and costs are reasonable” and act in compliance with the RPCs and advertising guidelines. In short, lawyers barred in the Sunshine State are permitted to use AI technologies provided that they are able to comply with their ethical obligations. The ethical obligations in this context remain undeveloped, but attorneys should certainly be familiar with the nature and operation of any AI programs to ensure compliance with basic ethical responsibilities.

The New Jersey Supreme Court released a notice to the bar in early 2024 providing preliminary guidelines to lawyers who practice in the state regarding the ethical use of AI in everyday legal practice. The guidelines note that lawyers’ ethical obligations as set out in the RPCs remain unchanged, and underscore “the need for lawyers to adapt their practices mindfully and ethically in this evolving landscape.” As it relates to a lawyer’s duty to be accurate and truthful, the guidelines highlight a lawyer’s corollary duty to confirm and verify the information that is generated by AI. Attorneys are likewise responsible under RPCs 5.1, 5.2 and 5.3 to ensure the “ethical use of AI by other lawyers and nonlawyer staff.” There is little doubt that the evolving technology of AI will continue to affect the practice of law and may require updated and even new guidance or rules in the future.

Cautionary Tales

The integration of AI in legal practice has not gone without a few proverbial bumps in the road. As one might imagine, the use and misuse of AI has landed more than a handful of practitioners in the proverbial hot water. Recent case law and publications highlight some of the challenges and ethical issues that both attorneys and courts have faced in recent months as we continue to grapple with AI’s giant splash in the legal profession. In
Mata v. Avianca, No. 22-cv-1461, 2023U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023), a federal court sanctioned an attorney who “submitted nonexistent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT.” This equated to “bad faith on the part of counsel based upon acts of conscious avoidance and false and misleading statements to the Court.” Similarly, in Matter of Samuel, No. 2016-2501, 2024 N.Y. Misc. LEXIS 283 (N.Y. Kings Cty. Jan. 11, 2024), an attorney submitted a reply brief with fictional and erroneous legal citations created by generative AI, that resulted in the court striking the pleading and requiring the attorney to show cause why economic sanctions should not be imposed.

A newly barred Colorado attorney received a one-year suspension from the practice of law after filing a motion to set aside judgment containing fake cases he obtained using ChatGPT. The attorney learned that the cases were “incorrect or fictitious” prior to a hearing on the motion, but failed to “alert the court to the sham cases at the hearing.” See Peoplev. Crabill, 23PDJ067, 2023 Colo. Discipl. LEXIS 64, at *1 (Colo. Nov. 22, 2023). When the hearing judge gave the attorney an opportunity to address the accuracy of the cited cases, he attempted to cast blame on a legal intern. Ultimately, the attorney admitted his mistake to the court in an affidavit and explained that he obtained the cases from ChatGPT. In the disciplinary proceeding, the presiding judge considered several mitigating factors and stayed the one-year suspension with 90 days served and a two-year probationary period to be completed.

Yet another example of the misuse of AI can be found in Park v. Kim, No. 22-2057, 2024 U.S. App. LEXIS 1996 (2d Cir.Jan. 30, 2024). There, the appellant’s counsel filed a reply brief that contained citations to two court opinions, one of which was obtained using ChatGPT as the attorney was “encountering difficulties in locating a relevant case” through traditional research tools. That opinion turned out to have been fictitious, and the court determined that the attorney “made no inquiry, much less a reasonable inquiry” as to the opinion’s legitimacy before filing the brief. The court held that licensed attorneys “must ensure that their submissions to the court are accurate” and referred appellant’s counsel to the grievance panel for further investigation and “for consideration of a referral to the Committee on Admissions and judgment.” The “intelligence” of AI is no substitute for the intelligence, competence, and professionalism that clients and courts expect from attorneys.

The Bottom Line

Attorneys must be cognizant of the fact that AI remains in its infancy and that developing competency in the use of such technology takes time. However, practitioners should not, and indeed cannot, rely on their lack of technological acumen if they engage with AI without appreciating its inherent risks and benefits.

Reprinted with permission from the February 22, 2024 edition of The Legal Intelligencer © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or

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