AI and the Coming Regulation

The Florida bar has jumped feet first into an amazingly complex topic: artificial intelligence. A special committee has been formed, which was featured in The Florida Bar News recently: AI Tools & Resources Committee to Draft Rules and an Ethics Opinion. It is reportedly addressing a multitude of potential issues.

In Complicated, Avril Lavigne rendered some advice that might be a consideration as we embark:

"Chill out, what ya yellin' for?

Lay back, it's all been done before

And if, you could only let it be, you will see"

Tech is not new. Disruption is not new. Ethics challenges are not new. Sure, technology helps you do things faster. Mitch Ratcliffe said, “A computer lets you make more mistakes faster than any other invention with the possible exceptions of handguns and Tequila.” And in the end, AI is all about computers. So now, perhaps we can make mistakes even more efficiently.

Nonetheless, there is varied interest in AI, ranging from ambivalence to curiosity, and anxiety. No one seems to know anything for sure. It is fine fodder for the water cooler, coffee room, or webinar (shameless plug, join us for The Point on September 28, 2023; we are discussing AI with some experts). Compared to me, anyone who can spell AI without help is pretty much an expert. 

The Bar expresses an overriding anticipation that AI may be able to enhance “access to justice." There is a persistent angst in the legal community that we must do more to democratize access to legal services. Not necessarily enough angst to trade in the Maserati for a Hyundai, but angst. For decades, it has been clear that each end of the human spectrum can achieve reasonable access. Those with money hire counsel and others qualify for appointed or volunteer counsel. But the middle class has been largely or wholly ignored in those pleas for democratization. How does a working person pay hundreds of dollars an hour for a will or to resolve a property dispute?

There is thus AI anticipation, appreciation, and hope for a “Brave New World.” But there is evidence of concern and anxiety. I have personally expended significant time experimenting with artificial intelligence (more on that below), see also Intelligence (November 2022); Artificial Intelligence in Our World (January 2017); AI and the Latest (June 2023). Despite that, and more, I am woefully unprepared for the coming revolution. 

What lies ahead fills me with a thrilling excitement, yet beneath it, a subtle undercurrent of fear hints at the unknown challenges that await on this uncertain journey. How many seminars have you attended regarding AI? How many articles have you read, how many conversations have you engaged in, and how much time have you invested? I can assure you, confidently, that, regardless of your answer to those questions, you have not done enough. Not worried? "You will be" (Yoda, Star Wars, The Empire Strikes Back, LucasFilm, 1980).

Some of the human reaction to the coming of our new robot overlords is downright humorous. The Florida Bar and others are carefully looking at ethical considerations, and their human rules (Rules of Professional Conduct). They have brought together their best legal minds to address the coming cataclysm. Or, perhaps they are that young man with flowers? (Men in Black, Columbia 1997).

Most have heard the stories of the recent intrepid ineptitude in the great state of New York. Mamma Always Said (June 2023). All have heard the story of these rocket scientists who chose to engage an AI tool to draft legal pleadings and elected not to proofread, or cite check. They billed their client for the effort, (over billed?), and filed their lazy "work" with the court. 

In response to that human debacle, courts around the country have begun entering orders requiring attorneys to sign certifications regarding the (non)engagement of AI. Organizations engaged in the licensure and discipline of attorneys are actively discussing rule or regulation amendments to regularly require such certifications. Remember Harry Potter and the Prisoner of Azkaban (J.K. Rowling, 2004)? - “I solemnly swear that I am up to no good.” I enjoy both affirmations and protestations.

Certifications are nothing new. The Florida Rules of Procedure include a requirement that litigants certify that they are using the correct font and pitch. Fla. R. App. P. 9.210. Every time I read that rule I think of Chico Marx (yes, I can see the font and likely can judge the pitch, but the certificate does perhaps remind me that I should care). There is a broader implication, without the label "certificate." Every time a Florida Lawyer signs a document, this is a "certification" under Fla. R. Gen. prac. Jud. Admin. 2.515. The lawyer's signature on the document is a certification that:

1. the attorney has read the document;
2. to the best of the attorney’s knowledge, information, and belief there is good ground to support the document;
3. the document is not interposed for delay; and
4. the document contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of rules 2.420 and 2.425.

So, let's be honest. I am presented virtually weekly with the old "I did not know it said that judge, my (fill in "paralegal," "secretary," "law clerk," etc.) wrote this." That is fine. But, counsel, you signed it. Did you "read the document?" Did you make conclusions about it? And, let's be absolutely fair, the Fla. R. Gen. prac. Jud. Admin. do not apply to workers' compensation proceedings (perhaps this one should?). 

But, what of the Rules of Professional Responsibility? They apply to all lawyers in all proceedings. 

Rule 4.1 says lawyers will be "competent," which includes "knowledge, skill, thoroughness, and preparation." The comments to that rule clarify that this includes training, education, continuing education, and "inquiry into and analysis." 

Rule 4-1.3 says lawyers will be diligent. The Comment refers back to competency, see above. The lawyer should keep the client informed and engage them in discussion as regards "the means by which the client’s objectives are to be accomplished." Imagine informing the client you are going to bill them for some work, but have an LLM (Large Language Model, another name for AI) spit out the documents you will blithely and blindly file on their behalf. 

Rule 4-2 says "a lawyer shall exercise independent professional judgment and render candid advice." What the document says represents that judgment. 

Rule 4-3 says "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis in law and fact for doing so that is not frivolous . . ."

Rule 4-3.3 says "A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or . . . "

Rule 4-3.5 says "A lawyer shall not seek to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court."

Rule 4-5.3(b) says "(2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer:"

"knowledge, skill, thoroughness," combined with "inquiry and analysis," applied in an "indepdent," "professional" and "candid" manner. Through "judgment," within the "basis in law and fact," the lawyer will avoid false statements, correct inadvertent falsity, and alert the tribunal to what is known. And, the lawyer will be ultimately responsible for her/his own and the performance of her or his team in this effort overall. 

At the end of the day, I have to ask a quite simple question. I would appreciate you, taking it in the spirit, in which it is intended, and considering it deeply. It is simply this: who cares? Perhaps that seems flippant or irreverent. Apologies. Lawyers are delegating to non-lawyers every day, regularly submitting pleadings they claim to have never read, misrepresenting facts, and worse. This is known, too often accepted, and frankly ignored. Not all lawyers. Not by a long shot. I know a great many who take their oath, responsibilities, and the cited rules very seriously. But, every day sees violations in some corners of the state. 

Will a new certificate about AI change that? Will this new certificate impede those who scoff at and ignore the current rules? Or, will it merely burden and inconvenience the lawyers who strive to be compliant, professional, and thorough already? Too often, America reacts to perceived challenges with new laws or regulations rather than enforcing what is already on the books. The new regulation route is easier, quicker, and seems positive. New regulations can signal action but won't make us face the current sloppy practice. Certify we did not use AI?

Let us consider a parallel. Do we expect accountants to sign certificates that this filing (say a tax return) was (or not) created with the help of QuickBooks? Do we ask engineers to certify that the calculations for this bridge were created with the help of Microsoft Excel? As the age of enlightenment has dawned upon us, have we ever even imagined asking someone to certify that the foregoing blog post benefited from the employment of Google searches, spellcheck, grammar check, Brief Catch, etc., etc., etc.? I hope you get the picture. How did I write this? Where did I glean the perspective, the citation, the conclusions? 

You see, perhaps many are going to foist upon you, an unlikely, illogical, and factually false premise, that AI is new. It is not. In fact, a great many of the lawyers, paralegals, doctors, engineers, accountants, and other professionals with whom I have worked over the last millennia have, in fact, been artificial intelligence. Sorry, that is demeaning and dismissive. But, if you met them, if you just talked to them (heavy sigh). In fact, we might make a valid argument that some of them weren’t "intelligence" at all. I re-read that sentence, and I find that it is utterly insulting, abrasive, and accurate. My apologies to all, but read on. 

Back in the day, I used to go to a place called a “courthouse“ in which records were stored. In order to keep my clients abreast of the various litigations, I would inquire there of a human being, who would retrieve a large bundle of papers related to a particular case. We called it a "file." I would sit at a table, and I would observe those documents while furiously scribbling notes on something we called a “legal pad." Sometimes I would read the documents into a tape recorder. 

Many of today’s acolytes and fledglings will suggest how much easier it would have been to simply snap a picture of those documents with my handy cell phone. However, in those days, “phone meant something different.“ (Jumanji, Welcome to the Jungle, Sony 2017). Yes, Virginia, there were no camera phones. Admittedly, many of us had cellular phones, but they were bolted to our vehicles. They were dependent upon our vehicle’s battery and were only useful for making calls to people. Weird, huh?

Later, back at the Batcave, I would read my notes into a tape recorder  or put them into a "file." If recorded, someone across the hall, and down the way, would listen to my droning, obnoxious voice, and transcribe those thoughts onto paper (using a typewriter, word processor, or eventually a personal computer ). 

In my process of dictation, I would augment my lack of intellect by cheating. I’m ashamed to admit it, but coming clean now seems appropriate. Back years ago, I had obtained a book, a book of knowledge, in which I could reference words, and find other words that sounded more supercilious and pompous. We called it a Thesaurus. I used those words, as if they were my own, and inserted them into those documents, in order to create the impression that my intellect was greater than it was. Not of my intellect, but borrowed. Of course, subject to my judgment.

When my resulting document would come back to me for proofreading (back in those days, lawyers, actually read documents before sending them or filing them), I would carefully look for errors in grammar, punctuation, and even spelling. In the spirit of full disclosure, I often cheated using another "book" called Strunk and White, a dictionary, or another publication. Again, not mine, but my judgment. 

But, we proofread. Nothing went out the door without being checked. That was another era. Lawyers today don’t proofread, they don’t use “books,“ whatever that word means. That is because for decades, as documents are now created in computers, suggestions have been made regarding spelling, grammar, and word use. We have all come to both expect and accept the help of these genies in the machines. Their intelligence is not real, and it is not new, but it has never seemingly worried us. That fundamental AI has been with us for years.

We similarly received help from secretaries, paralegals, other lawyers, and more. We asked folks to read, react, and opine. We took their input (or tolerated it) and perhaps made changes to the original output that was our own. But, yet again, my judgment. You could suggest I tone down the insulting, abrasive, and accurate, but whether to leave it or delete it is my judgment. I can use you, and pick your brain, but in the end, I decide what is in this blog and what is not. 

Lawyers perhaps became lazy, spoiled, and dependent. There’s a very good chance that without these tools, most of us would be unable to find our way to the bathroom by ourselves. Do you know where your dictionary is? Do you even remember when you saw it last? If the electronic age ground to a halt, Would you be able to handwrite a document, find an envelope, calculate the postage, or figure out where to mail it? Technology is a huge benefit, but I gotta admit it’s making us all somewhat dependent and less abled.

In those forays to the courthouse, I encountered fantastic verbiage. I read compelling arguments, eloquently stated, and effectively presented. Don't tell anyone, but I used what I found. I copied. I plagiarized words and relied upon the fantastic and exceptional research and writing that I perceived (In college, using other's work like that is plagiarism, but in the practice of law it is merely the highest form of flattery). That said, I checked every one of those case or statute citations before using (judgment). I used those lawyers' work without attribution, but I remained "independent" and applied "judgment." I used my own "inquiry and analysis" in deciding what I would harvest, what I would use, and how. 

That said, that research was not all mine. The interpretations and arguments were not all mine. I was standing (carefully) on the shoulders of others who had come before me. I was benefitting from others who had already plowed similar fields. I was benefitting from their intellect and their work. But, and this is critical, I never counted on it, blindly accepted it, or substituted it for my own judgment. And, in truth, I frequently found seemingly trail-blazing and amazing stuff that turned out upon closer examination to be fanciful, forced, or even false. That stuff I threw away (judgment). Those authors' conclusions and arguments did not meet my standards and did not rise to my acceptance or reliance. 

The Florida Bar rules already require lawyers to be frank and honest. They stipulate that when a lawyer signs her or his name, they are certifying the document contents. Despite this, many lawyers have abandoned that responsibility. Many would be absolutely shocked and appalled at the sloppy, inconsistent, illogical, and false representations that appear above the signatures of revered and respected attorneys. Those lawyers do not respect your rules. They do not fear your rules. They do not care about your expectations or seek your approval. They could care less about your scorn. They perhaps decided long ago that the only line that matters is the bottom line; is it "all about the Benjamins?" (Puff Daddy, 1997, Atlantic Records). 

I respectfully submit, that no one needs additional rules regarding artificial intelligence. In the first instance, AI is here, and it is inevitable (Thanos, Avengers Endgame, 2019, Marvel). The rules already cover the challenges. Does it matter where a lawyer gets data, phraseology, grammar, or arguments? The fact is that whether this comes from a partner, paralegal, some other lawyer's filings, or an AI, the lawyer remains responsible for exercising independent judgment, being analytical and critical, and producing the ultimate product. We certify that when we sign. The source or origin is not novel in that it is an AI. That is a distinction without a difference. "Build a bridge, and . . ." 

When lawyers don't exercise judgment, why not take some action? When lawyers inappropriately and blithely defer to paralegals, ignorantly or unthoughtfully cut and paste from some LLM, or even plagiarise some other lawyer's wretched refuse, why not merely discipline them for failure to comply with our existing rules? The fact is that too much has been delegated, deferred, and ignored already. Most (perhaps all) lawyers know it. It is not a secret. There are simply not enough troopers on the information superhighway to pull them all over. Only the most egregious scofflaws ever get stopped. Few of them are ever punished. 

Perhaps we "don't want the truth because deep down in places you don't talk about at parties," (A Few Good Men, Columbia 1992) you need to rely on paralegals. Perhaps one cannot earn a living in this profession without such economic leverage? Perhaps an honest day's work for a day's pay simply won't suffice? I have heard some interesting representations over the years about how much a lawyer "can't" operate an office on. 

My all-time favorite occasion was at a meeting, and that same lawyer offered me a ride back to the airport in his hand-made Morgan. Perhaps the bottom line is the overriding truth and the be-all and end-all? And if so, then why not just ignore the existing rules as well. But, if the rules matter, then respectfully, the existing rules quite handily cover any bad behavior that might come from engaging Artificial Intelligence.

In the interest of full disclosure, this blog post was prepared through dictation to an iPhone, it has been enhanced through the use of Chat, GPT (one paragraph was composed by it), and other LLM, and it has benefited from automated spellcheck, grammar check, dictionary, thesaurus, been manipulated on a Microsoft Surface using Microsoft Word and similar programs. Ultimately, it was processed onto this World Wide Web with the assistance of programs such as Grammarly and more. Despite that, for the most part, it’s my work. In the end, the judgment (or you might say lack of it) is all mine. Yes, Virginia, some of the foregoing was included merely to touch your nerves and keep you engaged. 

And, so that we are clear, if I had not told you the truth about all that technology I engaged, you would likely not have been able to discern it (which paragraph above is not mine?). You see, students have been extensively using AI for a while, and professors (the smart ones called "doctor" and "distinguished," and more) cannot really tell. So say the students. So say the Doctors. You see when someone turns in or files garbage, the source does not matter, the lack of judgment does. And, if they produce and present impeccable work, do we care beyond the fact that they are either brilliant or savvy enough to be skillful borrowers? In college, absolutely. But in practice?

So, we can learn how to use this next iteration of the Age of Enlightenment, or not. But we cannot kill AI. We cannot prevent it or hide from it. AI is here. We simply cannot "go upstairs and book a conference room." We cannot "talk (AI) to death." (Bourne Identity, Universal 2002). My certificate and disclosure above add nothing. Let's admit that the other certificates don't add much either.

If you are going to add a certification, why not make it simply "By signing, I certify I have complied with all rules regulating The Florida Bar." Perhaps that focus on the existing rules would move us forward? If it won't, I would suggest no other certification will either. Some will argue that such a certificate adds nothing (see above re fonts), but such a certification might just remind some lawyer why she/he should care?

If you agree with me, good for you. If you disagree, please attribute that to the evil and awful AI that created the parts of the foregoing that you find bothersome. We can be productive or we can sit back and "harumph" through this. In the end, AI will come. As you ruminate, know that will be true. It will come whether you steal the "Who-feast" or not (The Grinch that Stole Christmas, Universal 2000). We know that because it is already here, and perhaps so well disguised that you didn't even notice.

It will all be alright. The world will not end. For more on the topic, consult someone smarter than me. See Is Skynet Near (Pamela Langham 2023) and AI for Legal Risk Management (Pamela Langham 2023). Be patient, be observant, and be aware. AI is here and it will make practice and business better. It might even help to increase the bottom line. See you all on the other side.