Article

JurisdictionUtah,United States
Pages18
CitationVol. 36 No. 5 Pg. 18
Publication year2023
Article
Vol. 36 No. 5 Pg. 18
Utah Bar Journal
October, 2023

September, 2023

Artificial Intelligence Applications and the Rules of Professional Conduct

by Romaine C. Marshall and Gregory Cohen

Last November's arrival of generative artificial intelligence (AI) via ChatGPT and the multiple chatbots that followed has ushered in a global tidal wave of proposed laws and regulations focused on safety, reliability, and other risks. In addition, endless blueprints, white papers, and "studies" from the private sector have ensued, many predicting the myriad ways AI will accelerate digital transformation for industries that collect, maintain, and store data, especially personally identifiable and sensitive information.

Readiness for Al's promise or peril will be challenging. Utah is more ready than the majority of other states given its progressive stance on data innovation, privacy, and security legislation. Within the last five years, Utah has enacted the Electronic Information or Data Privacy Act (2019), the Cybersecurity Affirmative Defense Act (2021), the Consumer Privacy Act (2022), and Decentralized Autonomous Organization Act (2023). It stands to reason that AI legislation is on Utah's horizon.

The Utah State Bar has issued guidance for the use of AI. See Beth Kennedy, Using ChatGPT in Our Practices: Ethical Considerations, UtahBar, https://www.utahbar.org/bar-issues-ethics-guidance-on-chatgpt-and-artificial-intelligence/ (May 31, 2023). Indeed, we have a responsibility to adhere to the Utah Rules of Professional Conduct (Rules) that govern the practice of law and interaction with clients. The burgeoning use of AI intersects with and implicates the Rules in a variety of ways. This article will discuss several issues that attorneys need to be cognizant of as they consider integrating AI applications into their practice.

A Cautionary Tale

Attorney Steven Schwartz was handling a tort claim on behalf of a passenger allegedly injured on an Avianca Airlines flight to Kennedy Airport in New York. Schwartz initially filed the complaint in state court, and Avianca removed it to federal court and sought dismissal based on the statute of limitations. Because Avianca had previously filed for bankruptcy, Schwartz attempted to demonstrate that under the Montreal Convention, which governs international flights, the bankruptcy stayed the running of the statute of limitations.

Schwartz used ChatGPT to draft his brief in opposition to Avianca's motion to dismiss. Unbeknownst to Schwartz at the time, ChatGPT fabricated fictitious cases that it cited in the draft brief that it had written for Schwartz. Schwartz filed the brief without verifying the case law or the citations. Avianca's counsel responded that it was unable to locate the cases and expressed concern that the cited case law was not real. Instead of verifying the previously cited case law using more traditional methods, Schwartz went back to ChatGPT and asked it if the cases were real and to provide copies of them and ChatGPT obliged with fictitious snippets of the purported cases that it had previously cited.

Ultimately, following an Order to Show Cause, Schwartz...

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