A month ago, I spent some time with ChatGPT and related my findings in You're Only Human (May 2023). At the end of the day, suffice it to say that the results I found were inaccurate, unreliable, and at times arguably fictitious. The "intelligence" was a misnomer.
Then came a story from New York, reported by the British Broadcasting Corporation (BBC). In it, we hear of two intrepid New York lawyers, Harry and Lloyd. Harry had a client that wanted to sue an airline. It sounds like Harry filed a lawsuit and was confronted by a motion to dismiss or for summary judgment. Lawyers in those settings are likely to file motions, responses, and legal memoranda. It is, as they say downtown, "what lawyers do."
But, it appears Harry was busy that week and so he recruited a lawyer down the hall, Lloyd, to write a "brief" in support of the cause. Lloyd, with his 30 years of legal experience and expertise, "used ChatGPT to look for similar previous cases" to bolster the one filed by Harry. The opposing lawyers did what any ethical and competent lawyer does when confronted with an opponent's filing, they looked up the cases and other authority cited by Lloyd.
"Aye, there's the rub." (Billy Shakespeare, Hamlet, 1599).
The airline's lawyers could not find those cited cases. The authors of the BBC article say they "wrote to the judge" about their inability (we hope that is an error and they instead filed a motion or response to make this assertion). The judge concluded that "Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations."
Now Harry and Lloyd may face repercussions. The judge in the case is considering further action. A hearing is to occur today, June 8, 2023.
Now, in Lloyd's defense, he says he was "unaware that its content could be false." Lawyers refer to this as the "I didn't know defense." It is not known for working. He explained that "he had never used (the chatbot) for legal research before." And he expressed he "greatly regrets relying on the chatbot." Remorse and contrition are often advocated by good lawyers, "just tell them you're sorry, and make them believe it."
The BBC concludes that
"There have been concerns over the potential risks of artificial intelligence (AI), including the potential spread of misinformation and bias."
Sloppy? There is an increasing volume of sloppy, incomplete, and frankly incompetent legal work being filed. Every lawyer seems focused on their perceptions. They think they are Abraham Lincoln or Thurgood Marshall. They often argue of their great expertise and reputation. What they file is a testament to inadvertence at best and neglect at worst.
Lawyers are supposed to be diligent (Preamble, Rules Regulating The Florida Bar, Chapter 4). See also Rule 4-1.3.
Lawyers are not supposed to make false statements to judges. Rules Regulating The Florida Bar, Rule 4-3.3. The Comments to that rule include "Representations by a lawyer," "Misleading legal argument," and "Fraud on the Court." The Comments proceed to cite some other rules such as:
"Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so.""Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice."
Harry and Lloyd may face different rules. Certainly, the Rules of Professional Conduct are adopted by various states. They are each largely modeled on the proposals of the American Bar Association (a voluntary organization to which some lawyers belong). Thus, the rules in New York may be different. But, whether there is punishment for Harry and Lloyd or not, there are lessons here.
First, you cannot trust artificial intelligence. The same is true for the brilliant memo or brief you are "borrowing" from today. You have to check the citations and actually read the cited statutes, rules, and cases.
Second, Harry should have been managing his own case. You can delegate the work, but never the responsibility. Harry is in a tough spot due to Lloyd's failures.
Third, when a lawyer files something, it is incumbent on the other lawyer(s) to check those citations also, and to read the authorities. Clients that forbid their attorneys from "wasting" time on such effort are shortsighted, careless, and gambling.
Fourth, old age and experience are not the be-all and end-all. Experienced lawyers make dumb mistakes. Through hubris, haste, or habit, the old are as prone to laze and indifference as any.
Fifth, you cannot trust artificial intelligence (I know, I repeat myself). The machine feeds you answers. It misrepresents the accuracy and dependability of its answers. It blatantly and persistently conveys untrue information.
When the lawyer expects to demand the best in remuneration, she/he should put fort the best effort. When the lawyer yearns for the best reputation, she/he must remember it is earned. When a lawyer looks in the mirror, she/he should strive to drop the facade that is desired and strive to see what others see. It may be alarming for the Harrys and Lloyds of the world, but self-awareness is critical.
