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Next, under Ohio R. Prof. Cond. 1.6, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to information related to the representa- tion of a client.”7 To adhere to this rule, a lawyer should be cognizant about the information they input into ChatGPT. OpenAI, the parent company of ChatGPT, warns its users to not share any sensitive information with ChatGPT. As a self- learning generative AI tool, ChatGPT learns from the information input into its system by its users. This means that information disclosed by one user to ChatGPT may be used when generating a response for another user. Accordingly, if an attorney inputs confidential client information into ChatGPT, that infor- mation could be accessed by a third party researching the same topic or fact pattern. Because of this risk, the ABA advises that a client must give informed consent before their attorney inputs information relating to the representation into a self-learning generative AI tool.8 In addition to these inherent risks, a lawyer should consider the security of the AI tool they are using before revealing any sensitive client infor- mation. For example, ChatGPT recently experienced a data leak that allowed users to view other users’ conversations with ChatGPT.9 Because lawyers have a duty to implement measures to safeguard client data, lawyers should only utilize online tools that will adequately protect client data.10
While there is no universal rule regarding AI use in the legal profession, some judges have created standing orders regarding the use of AI in their respec- tive courtrooms. Shortly after Mata, U.S. District Judge Brantley Starr of the Northern District of Texas issued the first judicial standing order regarding AI. The order requires parties to file a certifi- cate attesting that either (1) the party will not use AI to draft any documents filed in his court or (2) if generative AI is used in creation of the filings, they have been checked for accuracy by a human being.11 While Judge Starr does not ban AI from his courtroom, this certification serves as a reminder to attorneys to avoid the same mistake made by the attorneys in Mata. In the Southern District of Ohio, U.S. District Judge Michael Newman issued a
standing order forbidding any party from using AI in the preparation of any court filing.12 Importantly, this order does not ban AI used to gather information from legal search engines, such as LexisNexis or Westlaw. Rather, although not explicitly limited to generative AI, this order also appears to target generative AI.
It is important to consider all the potential implications before imple- menting AI in one’s legal practice. The attorney should first consult the standing orders issued by the judge they are prac- ticing in front of to determine whether a standing order on the use of AI exists. Assuming there are no specific limita- tions on AI use in that judge’s courtroom, the attorney should consider whether they can effectively use AI in their prac- tice. When deciding whether using AI is in their client’s best interest, an attorney should reflect on their own technolog- ical capabilities as well as the capabilities of the AI system they use. If an attorney decides to utilize AI in their law practice, it is important for an attorney to check the AI generated document for accuracy. An AI system is not trained to produce true information, it is trained to predict what the author wants it to output. While AI may be useful when starting to draft a document, it is not currently depend- able enough to draft a court document without the oversight of a legal profes- sional. Accordingly, it is important for the attorney to check the AI created document for accuracy before using it and especially before filing it with the court.
Shepard is a recent graduate of Salmon P. Chase College of Law and worked as a law clerk at the CBA in the Ethics and Grievance Department.
1 Mata v.Avianca,Inc.,No.1:22-CV-1461-PKC,2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023).
2 Id.
3 Id.
4 Ohio R. Prof’l. Cond. 3.3(a) and N.Y. R. Prof’l. Cond. 3.3(a) are identical.
5 N.Y. R. Prof ’l. Cond. 3.3(a).
6 Ohio R. Prof. Cond. 1.1, Comment 8.
7 Ohio R. Prof. Cond. 1.6(c).
8 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 512 (2024).
9 OpenAI, March 20 ChatGPT outage: Here’s what happened, https://openai.com/blog/march-20-chatgpt- outage (last visited April 8, 2024).
10 Ohio R. Prof ’l. Cond. 1.6, Comment 18.
11 Judge Brantley Starr, United States District Court Northern District of Texas, https://www.txnd.uscourts. gov/judge/judge-brantley-starr (last visited April 8, 2024).
12 Standing Order Governing Civil Cases, Judge Michael J. Newman, United States District Court Southern District of Ohio, https://www.ohsd.uscourts.gov/sites/ ohsd/files//MJN%20Standing%20Civil%20Order%20 eff.%2012.18.23.pdf (July 14, 2023).
THE REPORT | September/October 2024 | CincyBar.org
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