THE ROBOT LAWYERS ARE COMING: ARTIFICIAL INTELLIGENCE AND LEGAL ETHICS

By now, you’ve probably heard that the Artificial Intelligence (AI) program ChatGPT not only passed the bar exam in an experiment conducted earlier this year but actually finished in the 90th percentile of all test takers.

You’ve also probably heard about the federal judge in New York who fined two lawyers for submitting a brief that contained fake quotes and fake case citations generated by ChatGPT.1 You may have also heard about the growing number of judges who have issued standing orders requiring lawyers and pro se litigants to file certificates declaring whether any portion of their filings has been drafted using generative AI tools and to identify the tool and the manner in which it was used.

By the time this article makes it to print, there will probably be some new development related to the use of AI in the practice of law that makes headlines.

Lawyers have been using AI for some time now. Examples of machine learning already in use in the legal field include natural language searching in online research, predictive coding in e-discovery, and evaluation of non-disclosure agreements to see if they comply with certain designated criteria. When I’ve discussed AI in continuing legal education courses, I’ve typically said that the legal profession is still a few years away from having to worry about robot lawyers taking the jobs of lawyers. I pointed out an experiment a few years ago where researchers assigned an AI tool the task of coming up with names for various paint colors that one might be buy at Lowes or Home Depot. The program came up with such unappealing and non-sensical names as “Snowbonk,” “Stanky Bean,” and “Sindis Poop.” So, I suggested, there were still some kinks that needed to be worked out.

But the fact that ChatGPT just passed the bar exam with flying colors suggests that a lot of those kinks have been worked out. The legal profession is quickly reaching the point where some understanding of how AI might be used in practice is going to become essential. At the same time, the fact that ChatGPT just randomly made up some cases while generating a brief to be submitted to a court also suggests that we aren’t ready yet to turn the robot lawyers loose in court.

When sanctioning the lawyers who submitted the brief containing the fictitious cases and quotes in the case of Mata v. Avianca, Inc., Judge P. Kevin Castel observed that “[t]echnological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance.” “But,” Castel cautioned, “existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.” Below are a few of those existing rules that lawyers should be mindful of when incorporating AI into their practices and a few examples of how those rules may have been violated in the Mata case:

• Rule 1.1, Competence: Comment 8 to TRPC Rule 1.1 explains that in order [t]o maintain the requisite knowledge and skill” necessary to provide competent representation, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” When it was revealed in Mata that the plaintiff’s brief contained bogus cites and quotes, one of the lawyers who had submitted the brief admitted that he “did not understand (ChatGPT) was not a search engine, but a generative language-processing tool.”2 In other words, the lawyer’s “defense” was that he did not understand the actual nature of the tool he was using. Thus, he couldn’t properly understand the risks of relying upon that tool and probably failed to competently represent his client.

• Rule 1.1, Competence, Pt. 2: TRPC Rule 1.1 requires that a lawyer provide competent representation to a client and explains that competent representation “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” This duty requires that a lawyer conduct the legal research necessary to adequately represent a client. As the painful exchange below from the court transcripts demonstrates, the plaintiff’s lawyer in Mata relied on ChatGPT exclusively to conduct legal research for the brief that was submitted:

THE COURT: In your declaration in response to the order to show cause, didn’t you tell me that you used ChatGPT to supplement your research?

MR. SCHWARTZ: Yes.

THE COURT: Well, what research was it supplementing?

MR. SCHWARTZ: Well, I had gone to Fastcase, and I was able to authenticate two of the cases through Fastcase that ChatGPT had given me. That was it.

THE COURT: But ChatGPT was not supplementing your research. It was your research, correct?

MR. SCHWARTZ: Correct. It became my last resort. So I guess that’s correct.

While it might be reasonable to rely on ChatGPT to generate some initial research leads or to supplement previous research conducted by the lawyer, the exclusive reliance on a research tool that is now known to sometimes generate fake research is unlikely to meet the standard of a competent practitioner.

• Rule 5.3, Supervision: TRPC Rule 5.3(b) imposes a duty of reasonable supervision on the part of a lawyer over the actions continued on page 22

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

Plan now to attend the Barristers monthly meeting on Wednesday, September 13, starting at 5:15 pm at the outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking September 13 on the event calendar at www.knoxbar.org.

The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on September 13, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

Constitution Day 2023 will take place this upcoming September 8 and 15 at local elementary schools. Attorney volunteers are needed on each date to (1) speak with a local elementary school class about the Constitution on September 8, and (2) appear a week later on September 15 with a local judge to observe a class project related to the Constitution. Interested volunteers should contact Richard Graves (rgraves@fmsllp. com) and Christine Knott (christineknott@knottlaw.org) with their availability on September 8 and 15.

The Barristers and the KBA are joining together to co-host the annual four-person scramble golf tournament on Monday, October 16, at the Tennessee National Golf Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Register online at www.knoxbar.org. Limited spots still available.

The Barristers need volunteers to sponsor breakfast or serve food on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry

SCHOOLED

continued from page 21 of a non-lawyer assistant engaged by the lawyer. While the rule was drafted at a time when the term “non-lawyer” could only have applied to an actual human being, some have suggested that the term could cover generative AI tools. Blindly accepting as gospel the legal research of a non-lawyer as the lawyer in Mata did might not qualify as “reasonable supervision.” In addition, Rule 5.3(c) provides that a lawyer may be responsible for the misconduct of a non-lawyer where, inter alia, the lawyer knows of the misconduct and ratifies the misconduct. According to Judge Castel in the Mata case, one of the plaintiff’s lawyers consciously avoided learning the fact that ChatGPT had created quotes and citations out of whole cloth. This conscious ignorance, the judge explained, is the equivalent of actual knowledge of these facts.

• Rule 11 Sanctions/Rule 3.1: Finally, the judge in Mata found that the lawyers violated Rule 11 of the Federal Rules of Civil Procedure, which, of course, requires a lawyer to certify that, to the best of the lawyer’s knowledge, formed after a reasonable inquiry, the legal contentions contained in a court filing are warranted by existing law.” Similarly, TRPC Rule 3.1 prohibits

Center. The cost is $150 for sponsoring, we need 4-5 volunteers to serve breakfast to approximately 30-40 individuals, and we’re typically finished by 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 381-9084 or Darrius Dixon at (865) 5464646 with any questions and/or about volunteering.

The Hunger and Poverty Relief Committee would like to thank everyone who attended and donated to our 5th Annual Brews for Backpacks event on July 25 at Xul Beer Co. We collected raised over $800 to purchase school supplies to donate to ChildHelp Foster Family Agency of East Tennessee! We would also like to thank our event sponsor, TCV Trust & Wealth Management, for helping make this event possible.

Please note the following changes in your KBA Attorneys’ Directory and other office records:

Sharon R. Clark

BPR #: 016734

Sharon Clark Law, PLLC 920 Gallaher Rd., Suite A Knoxville, TN 37763-4220

Ph: (865) 968-7960 s.clark@clarklawtn.com

Leigh Cowden

BPR #: 037968

Vermillion Law

9111 Cross Park Dr., Suite E111 Knoxville, TN 37923-4542

Ph: (865) 233-3353 LC@Vermillion.Law

Lily-Ana Fairweather

BPR #: 040992

Office of Tennessee Attorney General 315 Deaderick St., 18th Fl. Nashville, TN 37238-3000

Ph: (405) 635-6871 lilyana.fairweather@ag.tn.gov

M. Patrick O’Neal

BPR #: 034777

Gordon Rees Scully Mansukhani, LLP 4031 Aspen Grove Dr., Suite 290 Franklin, TN 37067-2951

Ph: (615) 772-9000 poneal@grsm.com

Carlos A. Yunsan

BPR #: 032450

U.T. College of Law

1505 W. Cumberland Ave. Knoxville, TN 37996-1810

Ph: (865) 974-2521 carlos.yunsan@utk.edu a lawyer from asserting an issue “unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous.” Judge Castel found that one of the plaintiff’s lawyers had violated Rule 11 “in not reading a single case” cited in the brief submitted to the court. The judge found that the other lawyer had also violated the rule when he consciously avoided learning the fact that the cases cited did not exist after learning of facts that alerted him to the high probability that the cases did not exist.

It’s certainly possible to incorporate the use of AI into one’s practice in an ethical manner. Indeed, in the not-too-distant future, it may be that in order to competently represent a client in some instances that the use of AI will be necessary. But the Mata case should serve as a cautionary tale for lawyers about the use of technology that one purports not to understand.

1 You can read the opinion (Mata v. Avianca, Inc.) here: https://storage.courtlistener. com/recap/gov.uscourts.nysd.575368/gov.uscourts.nysd.575368.54.0_3.pdf

2 Molly Bohanon, Judge Fines Two Lawyers For Using Fake Cases From ChatGPT, June 22, 2023, https://www.forbes.com/sites/mollybohannon/2023/06/22/judgefines-two-lawyers-for-using-fake-cases-from-chatgpt/?sh=113efd26516c

By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee