The State Bar Acts to Impose on Attorneys Guidance for the Use of Generative AI and Future Continuing Education Requirements Regarding Technology in the Practice of Law
By Charles Berwanger
A December 6, 2023 New York Times’ edition’s first page’s headline announced “Nations Losing Race to Control Dangers of A. I.” The article continues with an internal headline: “Losing The Race to Control A. I.’s Perils – Alarmed by the power of artificial intelligence, Europe, the United States and others are trying to respond – but the technology is evolving more rapidly than their policies.” The article explains that “‘no one, not even the creators of these systems, know what they will be able to do,’ said Matt Clifford, an adviser to Prime Minister Rishi Sunak of Britain, who presided over an A. I. Safety Summit last month with 28 countries. ‘The urgency comes from there being a real question of whether governments are equipped to deal with and mitigate the risks.’
That those risks are in the legal world is starkly exemplified by the travails of New York attorney, Stephen Schwartz, who gained notoriety due to his use of generative AI for legal research for a motion to dismiss a case in the Southern District of New York. Mr. Schwartz did not use A I to actually write the motion. However, he used AI for the legal research used in the motion. ChatGPT was used to provide Mr. Schwartz with the authority he needed for the motion. Unbeknownst to Mr. Schwartz the AI fabricated at least six cases, complete with quotations. It also cited several other real cases with fictitious holdings and/or quotations. The AI cloaked these cites with authentic looking case captions, court names, docket numbers, and names of the judges and lawyers. When challenged on these cites, the AI, confirmed each case is real and provided what it said was a “brief excerpt” from each case. It also asserted that these cases can be found on Westlaw and Lexis. Mr. Schwartz submitted the brief; opposing counsel performed cite checks and found that the cases did not exist; and the court took appropriate action against Mr. Schwartz.[1]
The revolution that AI and the risks attendant it have brought about State Bar action.
The State Bar has done two things.
First, the Bar’s Board of Trustees adopted on November 16, 2023 “Practical Guidance For The Use of Generative Artificial Intelligence In the Practice of Law” which contains Guidance for attorneys on using Generative AI in a manner consistent with the Rules of Professional Conduct and the Business and Professions Code sections which regulate attorneys. The Guidance is couched in such language as attorneys “must not”; “should”; “must ensure”; and other such terms.
The second action by the State Bar to attempt to ensure technological competence of attorneys, is found in the Rules of the State Bar, Rule 2.72(C)(2)(a)(iv) which requires that “beginning with the compliance period ending January 31, 2025, all licensees shall” have “at least one hour of education addressing technology in the practice of law….”[2]
The importance of the Guidance warrants elaboration. Some examples of the Guidance are the following:
- “A lawyer may not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections.” Further, “a lawyer should review the terms of use or other information to determine how the product utilizes inputs.”
- “It is possible that generative AI outputs could include information that is false, inaccurate, or biased. A lawyer must ensure competent use of the technology, including the associated benefits and risks, and apply diligence and prudence with respect to facts and law.”
- “Before using generative AI, a lawyer should understand to a reasonable degree how the technology works, its limitations, any applicable terms of use and other policies governing the use and exploitation of client data by the product.” Further, “overreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer.”
- “Managerial and supervisory lawyers should establish clear policies regarding the permissible uses of generative AI and make reasonable efforts to ensure that the firm adopts measures or give reasonable assurance that the firm’s lawyers and non-lawyers’ conduct complies with their professional obligations when using generative AI. This includes providing training on the ethical and practical aspects, and pitfalls, of any generative AI use.”
- “The lawyer should consider disclosure to the client that they intend to use generative AI in the representation, including how the technology will be used, and the benefits and risks of such use.”
- “A lawyer must not charge hourly fees for the time saved by using generative AI.”
- “A lawyer must review all generative AI outputs, including, but not limited to, analysis and citations to authority for accuracy before submission to the court, and correct for any errors or misleading statements made to the court.” Further, “a lawyer should also check for any rules, orders, or other requirements in the relevant jurisdiction that may necessitate the disclosure of the use of generative AI.”
- “Lawyers should engage in continuing learning about AI biases and their implications in legal practice….”
In Summary, the Guidance adopted by the Board of Trustees founded on the Rules of Professional Conduct, are a directive to all attorneys who use generative AI in their practice that to stay compliant with the Rules of Professional Conduct the Guidance should be incorporated into their practice. To ensure that attorneys comply with their ethical duty of competence the State Bar mandates one hour of continuing legal education in “technology in the practice of law” for each reporting period beginning with the compliance period ending January 31, 2025.” For the lawyer who intends to use generative AI such education must necessarily be a predicate to its use- a heightened education requirement for such users.
[1] See Ethics in Brief article entitled “ChatGPT Ethics Case Summary” written by Brandon Kimura, published on August 11, 2023 in the SDCBA’s This Week At The Bar BLAWG for a robust discussion of Mr. Schwartz’s fabricated citations and its consequences.
[2] Apropos that rule is Rule of Professional Conduct 1.1(a) which mandates that “a lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” Comment 2 to the rule requires attorneys to “keep abreast of the changes…[regarding] the benefits and risks associated with relevant technology.”