Page 12 - SeptemberOctober24 Report

ETHICAL CONSIDERATIONS:
in the
Legal Profession
By Hayley Shepard
12
THE REPORT | September/October 2024 | CincyBar.org
By now, many of us have heard about the New York attorney who was sanctioned for his use of ChatGPT in drafting a brief filed in a United States District Court. In Mata v. Avianca, Inc.,1 plaintiff’s attorney filed a brief which relied heavily on a fictitious case. Judge P. Kevin Castel found that while there is nothing “inherently improper” about using artificial intelli- gence (“AI”), lawyers must
still ensure the accuracy of
their filings.2 Judge Castel
stated that the attorneys
“abandoned their responsi-
bilities when they submitted non-existent judicial opin-
ions with fake quotes and
citations created by the
AI tool ChatGPT, then
continued to stand by the
fake opinions after judi-
cial orders called their
existence into question.”3
Mata demonstrates one
reason why it is important
for attorneys to consider
the Rules of Professional
Conduct before using AI in their practice.
Although the attorneys in Mata were not professionally disci- plined, they arguably violated Rule 3.3(a) of the New York Rules of Professional Conduct.4 Rule 3.3(a) states, “A lawyer shall not knowingly ... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previ-
ously made to the tribunal by the lawyer[.]”5 When the attorneys in Mata continued to stand by the fake opinions when questioned by the judge, the attorneys failed to correct a false statement of law made to the tribunal under Rule 3.3(a).
This is not the only Professional Conduct Rule that is poten- tially implicated when considering the use of AI in legal work. Under Ohio R. Prof. Cond. 1.1, attorneys shall provide competent repre- sentation to a client. This includes “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with rele- vant technology.”6 One day, using AI may be a standard practice among attorneys, and eventu- ally it may be a necessity of providing competent representation. However, right now, AI provides minimal benefits to prac- titioners. Relying solely on AI without proper oversight by the attorney could lead to a breach of the duty of competence. If an attorney chooses to use AI in their practice, they should always check the accuracy of the AI generated document to ensure
competent lawyering.
The American Bar Association Standing Committee on Ethics and Professional Responsibility released its first formal opinion covering the growing use of generative artificial intelligence (GAI) in the practice of law, pointing out that model rules related to competency, informed consent, confidentiality and fees principally apply. Formal Opinion 512 (2024) states that to ensure clients are protected, lawyers and law firms using GAI must “fully consider their applicable ethical obligations,” which includes duties to provide competent legal representation, to protect client information, to communicate with clients and to charge reasonable fees consistent with time spent using GAI.