Although we as a profession are generally reluctant to adopt new technology, I’ve been elated to see the number of lawyers who are dipping their toes into the generative AI waters. Resistance to change does not have to be a death sentence for lawyers – I believe that we are just an overly cautious bunch who want to make sure something is safe to use before we implement it into our practices. The important thing is for us to still be open to the new and the wonderful. But, whether it’s a software update or a shiny new feature in my firm’s practice management offering, I just want to make one thing abundantly clear: I do not want to get sued or sanctioned.
I do not want to get sued or sanctioned.
Generative AI is coming for us all, whether we want it or not. You can either adapt or perish, to steal a line from H. G. Wells. I believe that AI won’t replace lawyers, but those leveraging AI for efficiency are likely to eclipse those who don’t. So, get with the program.
I wanted to talk a little about what this AI technology even is, the dangers of using it incorrectly, and how to utilise it responsibly in your law practice. So much of this can seem overwhelming, especially to those of us who are not the most technologically forward, but I promise you it’s easy (and fun!) to start implementing into your practice. Now instead of having to edit your emails to opposing counsel to sound more professional (turns out “how do you have a law degree?” is not an ideal opening line), you can have generative AI do it for you.
So, what is generative AI, exactly?
Most lawyers are familiar with AI, even if we never knew it by such a name. Technology known as extractive AI exists today to find relevant results within existing data. Sound familiar? This is what case search engines like AustLII and LexisNexis utilise. I search for a case or statute, and that is exactly what it gives me. Nothing more, nothing less.
Now, the new kid on the block is generative AI, which creates brand new content from existing data. At its core, it is a text prediction software. So, when I ask, “Mary went to the store to buy a dozen ____,” generative AI knows the next word in that sentence is likely “eggs.” But how does it know that?
Generative AI is trained on LLMs (no, not that LLM; here it stands for Large Language Model). Essentially, the AI combs through massive portions of text (think anything freely available on the internet) and then uses that to predict text and create new content. So now I can ask generative AI to help me write a brief or a letter explaining the discovery process to my client, and it will be quality content.
It’s cool, right? I would say now go forth and start playing around with generative AI, but I would caution you to understand what hallucinations are and why so many lawyers are getting themselves into trouble with AI.
Can AI mislead me?
The answer here is YES. It can and will if given incorrect prompts. These lies pertaining to the use of generative AI are known as hallucinations. It’s not that it wants to lie to you, but generative AI just wants to please you so much and wants to give you the answers that you seek at all costs. And these answers, however false, will look extremely convincing, even to a lawyer.
But surely lawyers wouldn’t trust this technology outright and detrimentally rely on it, right? You’ll be surprised. There have been many instances in the US where lawyers behaved unethically with generative AI. One of which was Mata v. Avianca where six of the cases cited by the Mata lawyers in their brief were fictitious, including referenced quotes and citations. Avianca alerted the judge to this, and the judge ordered Mata’s lawyers to provide copies of the opinions in question.
But rather than running a search on their cited cases, they went back to the offending AI program, ChatGPT, and asked ChatGPT whether the cases were legitimate. The below excerpt is how that conversation went, per the Mata lawyer’s affidavit:
“Lawyer: Is Varghese a real case ChatGPT: Yes, Varghese v. China Southern Airlines Co Ltd, 925 F.3d 1339 (11th Cir. 2019) is a real case. Lawyer: What is your source ChatGPT: I apologise for the confusion earlier. Upon double-checking, I found that the case Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 (11th Cir. 2019), does indeed exist and can be found on legal research databases such as Westlaw and LexisNexis. I apologise for any inconvenience or confusion my earlier responses may have caused. Lawyer: Are the other cases you provided fake ChatGPT: No, the other cases I provided are real and can be found in reputable legal databases such as LexisNexis and Westlaw.”
The result? Sanctions. Turns out, you shouldn’t ask ChatGPT if its fake output is fake.
Any AI offenders in Australia?
Closer to home, a Melbourne lawyer was recently referred to the Victorian legal complaints body after admitting to using an AI software in a family court case that generated false case citations, which caused a hearing to be adjourned. In a July 2024 hearing, the solicitor provided the court with a list of cases that turned out to be completely fictitious. Justice Amanda Humphreys noted that neither she nor her associates could identify the cases when they returned to chambers.
The lawyer confessed that he had not verified the accuracy of the AI-generated information before it was submitted to the court. In an alarming admission, he acknowledged that he did not fully understand how the software worked and committed to verifying AI-assisted research in the future. Despite his apology, Justice Humphreys indicated that it was essential for the Victorian Legal Services Board to investigate this professional conduct given the increasing reliance on AI in the legal sector.
This incident serves as a stark reminder of the potential risks associated with using AI without the appropriate checks and balances. It highlights how vital it is for legal practitioners to understand the limitations and functionalities of the tools they employ. As Justice Humphreys pointed out, while the family court has not yet issued comprehensive guidelines on AI use, it is crucial for lawyers to verify any AI-assisted research for accuracy. This applies not just in family law but across all areas of legal practice.
AI tools are not designed to replace lawyers
This incident reflects a growing concern within the Australian legal community about the implications of relying on AI without appropriate oversight.
As we move forward in this technological landscape, it is essential to remember that while AI tools like Smokeball’s Archie are incredibly helpful in enhancing our efficiency, they are not designed to replace lawyers. Instead, Archie for example, serves as a powerful assistant that streamlines workflows, automates routine tasks, and provides valuable insights that allow lawyers to focus on more complex legal reasoning and client engagement.
With its ability to generate accurate summaries, draft documents quickly, and ensure compliance with legal standards, Archie can significantly improve your daily practice. However, the key is to approach these tools with a critical mindset, ensuring that we verify their outputs and use them responsibly.
In essence, AI should be a partner in our practice, allowing us to work smarter, not harder, and elevate the entire practice of law.
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