As jurists, law firms, legal professionals, and the public struggle to keep pace with the swift advancement of artificial intelligence, it is no surprise that courts are beginning to draft and enact rules for using these tools in legal proceedings. Just last week, before the Thanksgiving break, the Fifth Circuit Court of Appeals opened the comment period for its draft of a proposed amendment to certification rules for both lawyers and pro se litigants. The proposed new text calls on parties to “certify that, to the extent an AI program was used to generate a filing, citations and legal analysis were reviewed for accuracy.”
The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas courts. Fifth Circuit Rule 32.3 governs the form of filings, including typeface, word count, and type-style. The amendment includes the following proposed paragraph:
“Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.”
The rule calls for the striking of documents and sanctions for noncompliance or misrepresentation concerning failure to acknowledge the use of AI.
Legal Professionals Transformed into Supervisors of AI
The proposed requirements are nothing new. In June of this year, U.S. District Judge Brantley Starr of the Northern District of Texas implemented a rule where attorneys must attest to personally overseeing the preparation of their documents, explicitly confirming accuracy where AI is used. Does this signal the end of painstaking work of law clerks, paralegals, legal secretaries, or law librarians who often spend hours, if not days, scouring the internet and shelves for sources? Are legal professionals becoming the supervisors and spot checkers for accuracy of AI? Perhaps this is the dawn of an entirely new profession, legal prompt engineering, whereby the attestation to accuracy and review by a human is all it takes to accept the new Artificial Legal Professional’s work.
In any case, what is increasing clear is that while AI has immense potential to
revolutionize the legal sector, caution must be exercised. Professionals need to be educated about where data comes from, how AI models work and their limitations, and when to rely on AI versus when to lean on human judgment. Proper implementation, transparency, and continuous learning are key. This is especially important in the application of law. Indeed, to this point, Judge Starr is reported to have declared his refusal to use AI, stating, “I don’t want anyone to think that there’s an algorithm out there that is deciding their case…” This comment highlights the different concerns various legal professionals might consider in their implementation of these tools.
Hallucinations and Trust
One of the biggest challenges when it comes to the use of AI in the legal profession, is trust. The prospect of an AI model hallucinating results into a document is an all too real scenario. Back in May of this year, a lawyer who had used ChatGPT for citations in a legal brief found himself on the receiving end of sanctions, precisely because the brief cited six non-existent court decisions.
The escalating reliance on artificial intelligence in the legal domain underscores the paramount importance of ensuring its quality, accuracy, ethical integrity, and trustworthiness in user interactions. This necessity becomes starkly apparent when considering the possibility of an AI system’s erroneous interpretation of legal precedents or the hallucination of non-existing cases. These examples amplify the urgency for implementing standards and codes of conduct, potentially reinforced by legal penalties, to guarantee that AI applications in legal proceedings align with the profession’s exacting requirements. This approach is critical for fostering a deep-rooted trust in this transformative technology, which is reshaping both the legal landscape and global society.
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Sources:
https://fingfx.thomsonreuters.com/gfx/legaldocs/mopajaxmava/11222023ai_5th.pdf
