By: Viktor Friedland
Artificial Intelligence (AI) has been rapidly growing in recent years and has firmly established itself within the mainstream conscious. There are a multitude of free resources allowing individuals access to generative AI tools where a user can simply input a series of prompts to generate a product. These generative AI tools can be fairly all encompassing, such as Chat GPT, to more specifically targeted tools such as Canva which is specifically made for quickly generating multiple images based on user prompts. The legal field is no exception to this with as companies such as LexisNexus1 and Thomson Reuters2 have also created AI powered tools to entice users into their ecosystems. Despite the continuous growth of AI in usage and development, regulations on the use of AI by lawyers has been slow to develop.
The closest thing to a nation-wide rule regulating lawyers and AI usage has only recently been officially laid out by the ABA Standing Committee on Ethics and Professional Responsibility in July 29, 2024.3 Stated in Formal Opinion 512, the American Bar Association has laid out a series of ethical issues to consider and highlighting numerous ABA Model Rules of Professional Conduct that are applicable to AI usage.4 There have also been a recent instance in New York which involved a lawyer who failed to fact check that the AI program they were using fabricated a legal case which was then improperly included in their legal brief to the court.5 As a result of this, the attorney was sanctioned and fined.6 While the ABA Formal Opinion will certain be impactful and the infamy of the NY sanctioning has alerted attorneys of the risks of fully relying on AI, the bulk of AI regulation in legal practice has come directly from individual courts and states.
Though not universal, there is a growing trend in individual courts and judges issuing standing orders and local rules on AI usage particularly on disclosing its usage. Among the federal courts 9 out of the 13 circuits has had at least one district judge who created an order on AI usage and disclosure in court.7 Only the US Court of Appeals for the Fifth Circuit has directly released a statement about creating a circuit wide rule on AI usage.8 After much pushback from attorneys, the Fifth Circuit ultimately decided against issuing a new rule regarding checking the “accuracy of any AI-generative material filed with the court.” 9
There has also been an influx of standing orders and local rules issued by judges and courts at the individual state level. Currently at least 5 states have had at least one judge or state level court enact court orders or rules on the use and disclosure of AI in legal proceedings.10 Certain states have also been developing state wide guidance policies such as Idaho’s policy manuals for use of AI in Office of Administrative Hearings.11 The Delaware Supreme Court also recently enacted an interim policy on the use of AI tools by judicial officers and court personnel.12 Perhaps most striking is the recently passed policy on AI issued by the Illinois Supreme Court which acknowledge the growing rise of AI use within the legal profession and promoted its use, so long as it “complies with legal and ethical standards.”13
For now it appears that the disclosure and use of AI by lawyers in practice is still relatively uncharted territory. However as time goes on it is inevitable that more courts, judges, and states will begin implementing guidance and regulations on the use of AI in legal proceedings in court and practice.
Sources:
[1] LexisNexis Launches Nexis+ AI an Advanced Generative AI-Powered Decision Intelligence Platform to Transform Company Research, LexisNexis (Jul. 17, 2024), https://www.lexisnexis.com/community/pressroom/b/news/posts/lexisnexis-launches-nexis-ai-an-advanced-generative-ai-powered-decision-intelligence-platform-to-transform-company-research.
[2] CoCounsel: The legal AI Assistant and Tool Essential for Legal Teams, Thomson Reuters (Aug. 26, 2024), https://legal.thomsonreuters.com/blog/legal-ai-tools-essential-for-attorneys/.
[3] ABA issues first ethics guidance on a lawyer’s use of AI tools, A.B.A., https://www.americanbar.org/news/abanews/aba-news-archives/2024/07/aba-issues-first-ethics-guidance-ai-tools/ (last visited Jan. 17, 2025).
[4] Id.
[5] Dan Mangan, Judge Sanctions Lawyers for Brief Written by A.I. With Fake Citations, Cnbc (Jun. 22, 2023, 3:53 PM), https://www.cnbc.com/2023/06/22/judge-sanctions-lawyers-whose-ai-written-filing-contained-fake-citations.html.
[6] Id.
[7] Tracking Federal Judge Orders on Artificial Intelligence, Law360, https://www.law360.com/pulse/ai-tracker (last visited Jan. 17, 2025).
[8] Jacqueline Thomsen, Fifth Circuit Won’t Adopt AI Rule After Attorney Pushback, BL (Jun. 11, 2024, 10:19 AM EDT), https://news.bloomberglaw.com/us-law-week/fifth-circuit-wont-adopt-ai-rule-after-attorney-pushback.
[9] Id.
[10] Artificial Intelligence Court Order Tracker, Ropes & Gray, https://www.ropesgray.com/en/sites/artificial-intelligence-court-order-tracker (last visited Jan. 17, 2025).
[11] See Id.
[12] Sara Merken, Delaware Top Court Sets Rules on AI Use for Judges, Staff, Reuters (Oct. 22, 2024, 5:17 PM), https://www.reuters.com/legal/transactional/delaware-top-court-sets-rules-ai-use-judges-staff-2024-10-22/.
[13] Illinois Supreme Court Announces Policy on Artificial Intelligence, Ill. Courts, https://www.illinoiscourts.gov/News/1485/Illinois-Supreme-Court-Announces-Policy-on-Artificial-Intelligence/news-detail/ (last visited Jan. 17, 2025).