The rapid ascent of ChatGPT is causing significant disruption across various professions, including the legal profession. Steven Schwartz, an attorney with Levidow, Levidow & Oberman, has admitted to using the popular AI too to conduct legal research and now faces a court hearing of his own.
Schwartz, who is representing a man in a lawsuit against Avianca Airlines, claims that a serving cart struck his client's knee in 2019. Schwartz admitted to having no prior experience with ChatGPT when using the AI tool and was unaware it could produce fabricated cases.
Judge Kevin Castel of the Southern District of New York stated that the court is being confronted with an "unprecedented situation" when Schwartz's filing was discovered to reference fictitious legal cases that had no actual existence.
Judge Castel stated in an order that "a minimum of six cases submitted by Schwartz as research for a brief exhibit fabricated judicial decisions, counterfeit quotations, and fictitious internal citations."
Ethical Considerations and Concerns of AI Tools
Considering that a substantial portion of lawyers' work revolves around written communication, which involves emails, memos, motions, briefs, complaints, discovery requests, responses, and various transactional documents, the impact of ChatGPT on this domain holds great potential.
While current technology has certainly made the production of such written content easier by enabling the use of templates and automated document assembly tools, ChatGPT has only brought about modest changes to the overall work of most lawyers. However, Schwartz has faced the uncertainty of responses generated by ChatGPT that may be imperfect and, at times, problematic.
The American Bar Association Model Rules of Professional Conduct, which govern the lawyer's responsibility for the conduct of clients, apply here.
The rules require that the lawyer make "reasonable efforts" to ensure that the firm has measures to give reasonable assurance that the person's conduct is compatible with the lawyer's professional obligations. The lawyer is also directly responsible for the nonlawyer's conduct if it violates the Rules of Professional Conduct if the lawyer has either directed or has knowledge of the conduct.
Lawyers are also obligated to uphold a distinct duty of technical competence and a more comprehensive and fundamental requirement of overall competence as outlined in the Rules of Professional Conduct. Such obligation is important in the case of emerging technical advancements, such as ChatGPT, that are currently foreign in the legal profession.
If the work produced by ChatGPT were discovered to be an ethical violation, the lawyer could be held accountable under the Rules of Professional Conduct, similar to being directly responsible for the violation, just as they would if ChatGPT were a legal assistant or junior associate.
Navigating such a scenario could become complicated to navigate when the information necessary for ChatGPT to generate a specific output for the lawyer requires confidential client information. Moreover, whether the privileged and confidential information shared with ChatGPT is inadvertently disclosed or exposed is unclear. ChatGPT explicitly states that its content is reviewed by humans, and it is important to note that information inputted into the AI tool cannot be deleted.
What's Next?
Currently, the unprecedented legal consequences of ChatGPT are still to be determined. While Mr. Schwartz is in the hot seat, almost no courts have acknowledged CHATGPT and the issues circulating around AI tools, so the answers to these unfolding questions are unclear.
The extent of due diligence and meticulous oversight required from attorneys to fulfill their ethical obligations in relation to the deliberate utilization or reliance on work generated by ChatGPT should be cautioned as it continues to be refined.
However, While ChatGPT is able to produce draft work to aid the legal profession, there is still uncertainty regarding its ability, if any, to be taught or refined to critically analyze acquired data— a distinct contrast between ChatGPT and a human lawyer.
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