Court Kicks Lawyers Off Case After Finding Fake AI Cases In Filings

 As more and more cases of fake citations, and faulty use of AI in lawyering pile up, judges may be ready to start imposing stronger sanctions.  Read the story here.

Yet another case of sanctions for relying on AI to write briefs (resulting in cites to cases that do not exist)

Two attorneys who were representing MyPillow CEO Mike Lindell in a defamation case in Denver have been fined $3,000 each as sanctions for submitting an inaccurate, AI-generated brief to the court in April.  Go here for the story.  

Above the Law has more on the story here, arguing the sanction was too low.

NPR has a comment here arguing that the case serves as a stark warning.

How not to practice law: AI edition

After a long absence from the blog today we have the second day in a row with a "how not to practice law' entry!  Today's story features a lawyer using AI hallucinated cases in support of a claim who, when called out on it, then cited more hallucinated cases.  That is bad enough, but the article also focuses on the fact that the trial judge issued an order based on the hallucinated cases... You can read the full story here,

Comment on Puerto Rico's newly adopted rule on technological competence

 As you probably know, paragraph 8 of the comment to Model Rule 1.1 (Competence) states, among other things, that "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."  This statement has since been adopted and integrated into the comments of the rules in about 40 states.

Puerto Rico, however, recently adopted new rules (based on a translation of the Model Rules) and the notion of technological competence appears in a specific rule rather than in a comment to the rule on competence.  

In a comment posted in Above the Law, the author argues that "the Puerto Rico Supreme Court came out with a much more realistic and impactful definition of a lawyer’s technological competence obligations than that promulgated by some 40 states" and that "the Puerto Rican rules are a stronger statement about competence and suggest why it is so important."

You can read the full comment here.

A lawyer’s duties in response to a data breach

 Over at Ethical Grounds, the unofficial blog of Vermont's bar counsel, Michael Kennedy reminds us of a lawyer’s duties in response to a data breach.

DoNotPay now has to pay because of its claims about its non-existent AI lawyer

 Do you remember last year's stories about "DoNotPay," a company that claimed to have the "world's first robot lawyer"?   In case you don't, this was a company that claimed to offer legal services using a "robot lawyer" (aka "AI technology).  It made a lot of claims about the services it could provide, only it was revealed to be all smoke and mirrors.  I reported on the story throughout 2023 on  January 29, February 14, February 16, March 4, March 10, and March 17.

The story has made it back to the headlines of the week because on Wednesday, the FTC announced actions taken against five different companies making misleading claims about AI, including DoNotPay.  

In reply, DoNotPay as agreed to pay $193,000 to settle Federal Trade Commission allegations.  Besides paying the $193,000, DoNotPay agreed to refrain from making claims about its ability to substitute for legal services without evidence to support them.  

TechDirt has more details on this latest chapter on the DoNotPay saga here.  The ABA Journal has more on the settlement here.

Breaking Down the ABA’s Guidance on Using Generative AI in Legal Practice

A recent article breaking Down the ABA’s guidance on using generative AI in legal practice is available here.

Emerging Trends in Legal Tech

 The Legal Talk Network has a new article with links to podcasts on emerging trends in legal tech here.

New Legal Ethics Opinion Cautions Lawyers: You ‘Must Be Proficient’ In the Use of Generative AI

 As I am sure you know by now, the ABA amended the comment to Model Rule 1.1 some years ago to include a new paragraph [8] that says "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."

And thus the duty to be competent about "technology" was born.  Now adopted by a majority of jurisdictions, as the comment says, lawyers have a duty to learn about and to stay up to date with developments in "technology" that relates to the practice of law.  

Accordingly, there are a number of ethics opinions out there on this matter and LawSites is now reporting (here) on a new one specifically on the use of generative AI.  

The opinion was issued by the Pennsylvania Bar Association and Philadelphia Bar Association and it makes one point very clear: lawyers are required to maintain competence across all technological means relevant to their practices, and that includes the use of generative AI.

You can read the opinion here.

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.*  When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.

This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged."  The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.

The order was affirmed in an opinion (available here) that is about seven sentences long.  It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."  

So, going back to our initial question:  in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents.  That much is clear.  But nothing else is, and the incident raises a number of interesting question not addressed by the court.

First of all, why does the court refer to the documents as privileged?  The court refers to the documents in question as "corporate files."  What were these documents?  If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake.  But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.

Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else?  The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it). 

The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.

And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss.  It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake.  Could the lawyer be subject to discipline for this?  In theory, Yes; absolutely.  But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.  

Could the lawyer be liable in tort for negligence?  Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance.  Lucky for the lawyer!

 I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.

________________

* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.

Another article on A-I and the practice of law

 In my previous post I mentioned a couple of recent posts regarding AI and the practice of law.  Here is another one:  "Is The Legal Industry Ready For AI?; It's crucial to consider these questions" published in Above the Law.  You can read the full article hereread the full article here.

Generative AI and the practice of law

As reported by Ethical Grounds, last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters, which discusses many different issues and the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI).  You can read the opinion here.

Based on this opinion, Michael Kennedy (of Ethical Grounds), has posted two new comments on issues related to generative AI and the practice of law.  In the first one, available here, he discusses why it is not necessary to amend or change current rules of professional conduct in response to the effects of generative AI in the practice of law.  In the second one, available here, he begins to address issues related to the professional duties most likely to be implicated by a legal professional’s use of GAI by discussing the duty of confidentiality.  I expect he will address other duties in future posts, so stay tuned.  

ABA Issues Formal Opinion cautioning lawyers to be careful not to disclose confidential information when talking about the representation of clients

As all of you know, the ABA's Standing Committee on Ethics and Professional Responsibility frequently issues Formal Opinions to help answer questions and clarify aspects related to the interpretation and application of the ABA Model Rules.  Last week, the Committee issued a new opinion on confidentiality.  Its summary reads as follows:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation. 

Whether the conclusion is limited to listsevs is actually not that relevant since the same can be said of any instance in which a lawyer discusses a client's representation in a public setting (when addressing a group discussion, as an example in a meeting, when teaching a class, when participating in a CLE program, etc, etc.)  But the focus of the opinion seems to be on lawyers who turn to listservs to seek help on a matter they are working on for a client, a practice I can safely say is very common in at least one of the listservs I follow.

Lawyers like talking about their work, their clients and often share war stories or use their experiences as examples to illustrate issues, or to ask questions.  Often, they also ask others for help in finding support for an argument or to find sources of information on how to handle a particular issue.  The problem is that, in doing so, it is possible to disclose confidential information, which, of course, could be a problem.

Yet, although the opinion follows the logic of the broad approach to confidentiality reflected in the rules, it was quickly criticized by some, ironically, in a listserv I follow.  Likewise, Bob Ambrogi, who writes about legal technology in the website LawSites, wrote a good article in which concludes that the opinion "takes an overly heavy-handed approach to an issue it should have addressed, if at all, maybe 20 years ago. In other words it is too much, too late."  You should read his opinion here.

Micheal Kennedy also has a comment on the opinion here.

More on AI: recent articles

1. Jenny Brobst (Memphis Law) recently posted an article offering a look at the role of technology and ethical competency rules, vis-a-vis how tech has rolled out unevenly in the United States. You can take a look at it here.

2. Above the Law: Maybe We've Got The Artificial Intelligence In Law 'Problem' All Wrong

Several Stories about AI and the Practice of Law from this week's headlines

I think that issues related to the use of AI in the practice of law are the number 1 topic of the year and I see stories on it almost every day.  Here is a list of links from the past few days:

Exploring the Impact of AI on the legal profession (podcast) 

How Generative AI Will Improve Legal Service Delivery (Above the Law)

Judges To Generative AI: You're Out Of Order! (Above the Law)

AI Won’t Replace Lawyers -- But It Will Change How They Work (Above the Law)

AI Smarts For The Legal Sector: Preparing Your People And Content For AI (Above the Law)

How not to practice law: Yet another lawyer suspended for citing fake cases created by AI

 LawSites has the full story here.

Free Legal Research Startup Now Offers AI Generated Summaries of All State Supreme and Appellate Opinions

 LawSites is reporting (here) that a new website that provides access to legal research called descrybe.ai is focused on using artificial intelligence to provide free and easy access to court opinions and that it recently began to offer access to AI-generated summaries of all available state supreme and appellate court opinions from throughout the United States. 

Two articles on the justice gap and legal tech

 LawSites recently published two articles with commentary about the justice gap and legal tech that are worth reading.

In the first one, LawSites's editor Bob Ambrogi argues that "[t]he justice gap in legal technology is a reflection of the justice gap more generally, and both reflect a capitalist society in which the balance of wealth and resources is wildly out of whack. But more can be done. "  You can read the article here.

In response, Jess Lu and Mark Chandler argue that "Justice tech — legal tech that helps low-income folks with no or some ability to pay, that assists the lawyers who serve those folks, and that makes the courts more efficient and effective — must contend with a higher hurdle than wooing Silicon Valley VCs: the civil justice system itself."  The article is available here.

Yet another instance of ChatGPT hallucinating cases -- UPDATED

February 18, 2024

As reported in Courthouse News:  An appeals court in Missouri lambasted a pro se litigant for submitting multiple “fictitious cases” conjured up by the A.I. chat bot ChatGPT, which offered citations “that have potentially real case names — presumably the result of algorithmic serendipity,” that pointed to either non-existent rulings or to irrelevant ones. The litigant must pay $10,000 to opposing counsel for wasting their time with the “frivolous appeal.”  The court's ruling is here.  For other instances of similar conduct in Courthouse News go here and here.

UPDATE 2-20-2024:

Legal Ethics Lawyer has more on the story here.

California standing committee on professional responsibility and conduct practical guide for the use of generative artificial intelligence in the practice of law

 I missed this report when it came out, but better late than never...  Here it is.