A contentious debate is ruffling feathers in legal circles as several leading lawyers protest against a federal appeals court's first proposed rule to govern the use of artificial intelligence (AI) during court proceedings. Critics deem the regulation unnecessary and perplexing.
Are Existing Rules Sufficient?
The proposed regulation was under fire when letters opposing it started making rounds on Monday. Lawyers have acknowledged the concerns of the 5th U.S. Circuit Court of Appeals concerning the use and possible misuse of AI. However, they argue that the current legal provisions are robust enough to handle issues concerning this rapidly advancing technology.
The court's proposed rule, emanating from New Orleans in November, seeks to control lawyers' and unrepresented litigants' employment of AI tools like OpenAI's ChatGPT. It mandates that these parties certify the accuracy of citations and legal analysis generated by the AI program.
The Consequences of Misrepresentation?
Misrepresentation can lead to heavy consequences. Lawyers failing to comply with the rule might face sanctions and even have their filings dismissed according to the new rule. The current discourse indicates that other federal appeals courts are actively considering measures to manage the fast-paced emergence of AI programs in legal operations.
David Coale, a prominent lawyer who runs a 5th Circuit-focused blog, resonated with the worries about the proposed rule. He highlighted the "alarming tendency" of generative AI to "hallucinate" and "fabricate." This includes case citations' potential for inclusion in court briefs.
Yet, he upheld that the seriousness of citing "fake law" is acknowledged by the current court rules and state ethical standards, which explicitly forbid it.
The libertarian public interest law office, Institute for Justice, echoed a similar sentiment. In a letter, they maintained that lawyers must provide accurate, thoroughly examined arguments and citations in their briefings. This obligation, they argue, is sufficiently enforced by the court.
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Lack of Unanimity
While most of the 16 letters delivered to the 5th Circuit in response to the proposal voiced opposition or labeled it unnecessary, the proposal wasn't universally derided.
Certain lawyers believed that the new rule did not go far enough to address the "fundamental dangers" of using Generative AI for legal analysis. They advocated that the court require lawyers to certify their non-utilization of such technology.
Opposition leader Gary Sasso took it further, arguing that the judges ought to receive the highest quality work product from the lawyers representing the parties, not an 'app.'
Are We Evading the Inevitable?
On the other hand, the complaint is that many conventional legal research tools, Westlaw and LexisNexis included, already use AI-enhanced features to give their products an edge.
Suppose many research tools are integrating some generative AI component, which could be implemented soon. In that case, this proposed rule may discourage attorneys from employing tools beneficial to clients and the court.
As technology advances and AI becomes more prevalent, navigating this landscape will likely require innovation, compromise, negotiation, and new rulebooks. With the opposition of some lawyers, the debate lingers, requiring both sides to wrestle with a complex, evolving issue.
