Washington Lawyer - September/October 2024 - 40

SPEAKING OF ETHICS
AI, a Lie? Fie and
'Oh My!' (Sigh)
By Saul Jay Singer
THE CRAVEN
By Edgar, Al, and Moe, Esqs.
Once upon a late night dreary,
as I pondered, weak and weary,
over many a quaint and curious
volume of legal lore.
While I nodded, nearly napping,
suddenly there came a tapping,
as of someone gently rapping,
rapping at my office door.
" Tis some client, " I muttered, " tapping
at my office door. "
Only this, and nothing more.
Ah, so clearly I remember,
'twas in deep and dark December,
when D.C. lawyers, fraught with overwork,
sought aid from AI's store.
Quoth the lawyers, " AI, assist us,
help us in our legal messes,
with your algorithms sharp and clever,
craft us cases, statutes, and more. "
But they did not know the risks they faced,
their results so false and poor,
as they relied upon AI,
only this ... and nothing more.
Deep into that darkness peering,
long I stood there, wondering, fearing,
doubting, dreaming dreams no lawyer
dared to dream before.
But the AI remained unyielding,
leaving the lawyers at risk and reeling,
for their failure to verify -
a grievous error to deplore.
Thus came the risk of professional discipline,
knocking at my door:
Quoth the judges, " Nevermore. "
And the lawyers, feeling shaken,
recalling rules of conduct forsaken,
sought refuge in the office gloom,
their hearts so filled with dread,
their careers facing certain doom.
40 WASHINGTON LAWYER
* SEPTEMBER/OCTOBER 2024
For the consequences loomed above them,
like a shadow in the night,
as they pondered their misfortune,
filled with sorrow and with fright,
thinking of the disciplinary action,
so swift and sure to alight.
But amidst the stifling darkness,
a glimmer of hope did shine,
as they vowed to heed the lesson,
and never again cross the line.
For in the realm of legal lore,
rules of conduct can't be ignored,
and verification must be sought,
through diligence - and more,
lest they face the toll of the disciplinary door.
Quoth the lawyers, " Nevermore. "
Oh, my dear Mr. Poe, if you could only see,
the ethical horrors of technology.
For in this age of AI's dark art,
we face ethics issues from the very start.
So let us beware and rue the day,
that AI led us lawyers astray.
_____________
Most lawyers are familiar with Mata v. Avianca,
Inc.,1
where a lawyer, relying upon a chatbot
powered by generative artificial intelligence
(GAI) to help locate legal precedent in support
of a proposition he was arguing, cited nonexistent
cases to the court.
Ultimately, the lawyer argued that he had not
acted in bad faith but, rather, had merely used
a tool that he did not understand. However, the
seeming attempt to cover up technological
incompetence and lack of candor to the court
led to a finding that he (and his colleague) indeed
acted in bad faith. The court noted:
Technological advances are commonplace
and there is nothing inherently improper
about using a reliable artificial intelligence
tool for assistance. But existing rules impose
a gatekeeping role on attorneys to ensure
the accuracy of their filings.
As such, this seminal case - which launched
widespread discussion about attorneys' proper
use of GAI in their legal work - was actually
one that could easily have been decided under
Rule 1.1 (thou shalt be competent), which is the
first Rule of Professional Conduct for a reason.
First, even lacking any knowledge about the
operation of GAI and the reliability of such AIgenerated
results, lawyers in their first year of
law school are taught never to cite a case that
they have not actually read. Second, competence
requires knowledge of relevant technology,
which surely includes GAI.2
But there are other, more complex issues regarding
the use of GAI, including confidentiality,
communication, candor to the court, fairness
to opposing parties and counsel, supervision
of nonlawyer assistants, obligations regarding
fees and expenses of a representation,
and more. In Legal Ethics Opinion 388 (2024),
the D.C. Bar Legal Ethics Committee comprehensively
addressed these GAI3
issues.
CONFIDENTIALITY
Rule 1.6, the duty to maintain and protect client
confidences and secrets, extends not only to
attorney-client communications, but also to
any information whatsoever gained through
and in the course of the representation, whether
directly from the client or some other source.
The confidentiality requirement applies when
the client has asked the lawyer not to disclose
information, or when its disclosure would be
embarrassing or detrimental to the client.
GAI programs often save and/or use both the
attorney's inputs/prompts and the product's
own outputs/responses to train the tool for future
users.⁴ As such, as discussed in LEO 388,
there are two key confidentiality issues in the
GAI ethics context.
First, the lawyer must determine whether confidential
information that the lawyer feeds to the
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