Navigating the Era of Artificial Intelligence in Law
Christopher S. Gontarz, Esq.
President, Rhode Island Bar Association
"...AI tools are a first draft, not the final product.”
Artificial intelligence (AI) has become an integral part of our daily lives, profoundly transforming various aspects, including the practice of law.
It has been a major topic of discussion at the last two National Conferences of Bar Presidents
as well as the recent New England Bar Association Annual Meeting in October 2024. An executive order1 issued in October 2024 by the Rhode Island Supreme Court has established the Com mittee on Artificial Intelligence and the Court, chaired by Justice Erin Lynch Prata and Justice Brian Stern, to examine artificial intelligence and its impact on the practice of law. In the same month, President Biden issued the first national security memorandum detailing how national security institutions should use and protect arti ficial intelligence technology.2
As Chief Justice John Roberts of the United States Supreme Court noted in his annual report3 released on December 31, 2023, AI “obviously has great potential to dramatically increase access to key information for lawyers and non lawyers alike.”
There are essentially two models of AI, non generative and generative. Nongenerative AI models perform computations based on input data and focus on tasks such as classifications, predic tions, and decisionmaking. Generative AI can generate text, images, videos, or other data using generative models, often in response to prompts. Examples are ChatGPT, Vincent AI, and chatbots.
Chief Justice Roberts focused on artificial intel ligence after ChatGPT, an AI tool, passed several law school exams at the University of Minnesota.4 The use of AI can also be fraught with peril. In June 2023, a US District Court Judge imposed sanctions on two New York lawyers who submit ted a legal brief that included six fictitious case citations generated by an AI chatbot. In imposing sanctions, the Judge noted the Code of Profession al Responsibility imposes a gatekeeping role on attorneys to ensure the accuracy of their filings.5
There are nine significant Ethics opinions on generative artificial intelligence and the Rules of Professional Responsibility. They are ABA Formal Opinion 512; California – Practical Guidance For the Use of Generative Artificial Intelligence in the Practice of Law; D.C. Bar Ethics Opinion 388; Florida Bar Ethics Opinion 241; Report and Rec ommendations of the New York State Bar Associa tion Task Force on Artificial Intelligence; New York City Bar Formal Opinion 202405; Philadelphia Bar Association Joint Formal Opinion 2024200; State Bar of Michigan Ethics Opinion JI155; and West Virginia Legal Ethics Opinion 2401.
All of the noted opinions emphasize the follow ing rules of the Code of Professional Responsibility to be considered when utilizing AI.
Rule 1.6 Duty of Confidentiality
Without client consent a lawyer must not input confidential client information into any generative AI system that will share the inputted confidential information with third parties.
Rules 1.7 through 1.12 Conflicts of Interest
Lawyers must ensure that the system implements any ethical screens required under the Rules.
Rule 1.1 & 1.3 Duties of Competence and Diligence
Lawyers must be aware that generative AI may include information that is false, inaccurate or biased.
Rules 7.1 & 7.3 Advertising and Solicitation
AI cannot be used in a way that would circum vent the rules regarding marketing and solicitation.
Rule 8.4 & 1.2(d) Duty to Comply with the Law
Lawyers need to be aware of privacy laws, crossborder transfer data transaction laws, intellectual property and cybersecurity concerns.
Rules 5.1, 5.2, 5.3 & 8.4 Duty to Supervise Lawyers and Non-Lawyers
Supervising lawyers must establish clear policies regarding permissible uses of AI and ensure subor dinates conduct complies with the Rules.
Rules 1.4 & 1.2 Communication Regarding Generative AI Use
Lawyers should consider disclosing to the client the intent to use AI that is not routinely used as part of the representation.
Rules 1.2(c), 3.1, 3.3 & 1.16 Candor Toward the Tribunal
Generative AI has fabricated or “hallucinat ed” precedent. Lawyers need to check rules and orders issued by the Court that may necessitate the disclosure of AI.
Rule 1.5 Charging for Work Produced by AI and AI Costs
Lawyers must not charge hourly fees for the time that would otherwise have been spent absent the use of generative AI.
Rule 8.4 Prohibition on Discrimination
Lawyers need to be aware of possible biases and the risks they may create when using AI to screen potential bots or employees.
All members of the Rhode Island Bar have free access to Fastcase, which offers access to cases, statutes, and regulations. In November 2024, members gained access to vLex Fast case, a global legal intelligence company that includes an upgrade featuring some capabilities of Vincent AI, a research assistant to enhance ing on wellestablished legal authorities. The Continuing Legal Education (CLE) Committee of the RIBA is committed to priori tizing programming on AI and its impact on the legal profession to ensure our members stay informed of developments and advancements in this rapidly advancing field. And remember, members may contact Jared Correia, our Law Practice Management Consultant, who is avail able for virtual consultations free of charge to answer questions about using practical AI software tools. Additionally, the Law Practice Management page on the Bar’s website features noncredit programs on three popular AI tools that members can view at their convenience.
We have entered the Artificial intelligence era, and while the courts and bar associations continue to assess the fastevolving challenges using AI, there are many implications that may affect how you utilize it. The best advice I’ve heard from AI experts is that all AI tools are a first draft, not the final product. Attorneys must carefully review and analyze any data generated by AI when doing their research.
Endnotes
1 RI Supreme Court Executive Order No. 2024-03.
2 The New York Times, October 25 2024, page A18.
3 2023 Year-End Report on the Federal Judiciary.
4 Samatha Kelly, CNN BusiNess, January 2023.
5 Mata v. Avianca, 1:22-cv-1461 PKC, US District Court for Southern District of NY.