Leading Change: Ethical AI
Originally published on LinkedIn Feb. 4, 2024
Leading Change: Ethical AI
The Florida Bar recently published advisory ethics opinion 24-1 regarding the use of generative artificial intelligence (Gen AI) in the practice of law. As noted in the Florida Bar News announcement, one of the many concerns with the use of Gen AI is the potential for hallucination and confident, yet incompetent answers. Many have already heard of cases like Mata v. Avianca (SDNY Jun. 22, 2023), where lawyers were sanctioned for citing cases that simply did not exist.
As with many other technologies, it is important to invest in sufficient technical competence and appropriate oversight when using these tools in the practice of law. Just as engaging nonlawyer assistants requires appropriate oversight to ensure compliance, the use of Gen AI still calls for review of its work product to meet the lawyer's ethical obligations. It is a good reminder for all, as noted in the opinion:
Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.
While the technology has a lot of potentially beneficial uses, it is still evolving and maturing in its ability to reliably respond to requests, which is why one should clarify the technology being used, and allocate sufficient time to validate the results.
Everyone has a story to tell of nonlawyers trying to help, but providing inappropriate results because of a lack of experience, knowledge, attention to detail, and/or overestimating their capabilities. Relying on their work, no matter how confidently they present it, is no substitute for a competent lawyer's professional judgment.
But even if you are not "lawyering," as we are reminded in the recently released Supreme Court-mandated Professionalism CLE:
"Once a lawyer, always a lawyer." -- John Schifino
We should all remain cognizant of the potential harms caused by the misuse of new technologies, including Gen AI and social media, whether you are practicing or engaged in other activities. With all the RPC citations in the opinion here, it is easy to overlook the intent behind Rule 3-4.3 applying to activities beyond the practice of law.
Reference
Ash, Jim. "Board of Governors Adopts Ethics Guidelines for Generative AI Use," Florida Bar News, Jan. 23, 2024, at https://www.floridabar.org/the-florida-bar-news/board-of-governors-adopts-ethics-guidelines-for-generative-ai-use/
Ash, Jim. "Supreme Court-Mandated Professionalism CLE Now Available," Florida Bar News, Jan. 30, 2024, at https://www.floridabar.org/the-florida-bar-news/supreme-court-mandated-professionalism-cle-now-available-on-the-member-portal/
Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at 17 (S.D.N.Y. June 22, 2023).
Robertson, Adi. "Lawmakers propose anti-nonconsensual AI porn bill after Taylor Swift controversy," The Verge, Jan. 30, 2024, at https://www.theverge.com/2024/1/30/24056385/congress-defiance-act-proposed-ban-nonconsensual-ai-porn
Rules Regulating The Florida Bar (RRTFB) at https://www.floridabar.org/rules/rrtfb/ Chapter 3, Rules of Discipline, available at https://www-media.floridabar.org/uploads/2024/01/2024_07-JAN-Chapter-3-RRTFB-1-8-2024.pdf and Chapter 4, Rules of Professional Conduct (RPC), available at https://www-media.floridabar.org/uploads/2024/01/2024_07-JAN-Chapter-4-RRTFB-1-8-2023.pdf
The Florida Bar Ethics Advisory Opinion 24-1, Jan. 19, 2024, at https://www.floridabar.org/etopinions/opinion-24-1/