From Competence to Excellence: How Utah's Law Schools Are Training Tomorrow's Ai-savvy Lawyers

• Publication year: 2024
• Citation: Vol. 37 No. 4 Pg. 50
• Pages: 50

From Competence to Excellence: How Utah�s Law Schools Are Training Tomorrow�s AI-Savvy Lawyers Vol. 37 No. 4 Pg. 50 Utah Bar Journal July 2024

Article

by Nick Hafen

Last fall, a Massachusetts lawyer asked his associate and two law clerks to draft memoranda of law opposing four motions to dismiss filed by the defendants. See generally Findings, Rulings and Order Imposing Sanction, Smith v. Farwell, Mass. Super. Ct., No. 2282CV01197 (Norfolk County Feb. 12, 2024), available at https://masslawyersweekly.com/wp-content/blogs.dir/1/files/2024/ 02/12-007-24.pdf. He reviewed, signed, and filed the papers. Id. at 6. When the attorney arrived in court for oral argument on the motions, the judge informed him that the court had been unable to locate several of the cited cases. See id. at 4-5. Upon investigation, the lawyer learned that his associate had used a generative AI tool in preparing the memoranda. See id. at 6. He disclosed the situation to the court and apologized, explaining that he was "unfamiliar with AI systems and was unaware .. that AI systems can generate false or misleading information." Id. at 6-7. While the court was sympathetic to the situation, it imposed sanctions in the amount of $2,000 for the attorney's violation of Rule 11 of the Rules of Civil Procedure. See id. at 14.

The Ethical Imperative to Understand Generative AI

This lawyer is not alone. Generative AI (genAI) tools predict statistically likely sequences of words to produce convincing - but not always accurate - summaries of and citations to case law. See, e.g., People v. Zachariah C. Crabill, No. 23PDJ067 (Colo. Nov. 22, 2023) (suspending a lawyer for citations to fictitious cases), available at https://coloradosupremecourt.com/PDl/Decisions/Crabill,%20 Stipulation%20to%20Discipline,%2023PDJ067,%2011-22-23.pdf; Mata v. Avianca, Inc., 678 F.Supp.3d 443, 466 (S.D.N.Y. June 22, 2023) (imposing a $5,000 sanction for citations to fictitious cases). At first glance, these cases may appear to require that attorneys personally check every citation in every filing they sign, but a close reading of the Massachusetts case reveals an important distinction. According to the court, Rule 11 required the disciplined attorney to "review the case citations . for accuracy, or at least ensure that someone else in his office did." Farwell, No. 2282CV01197, at 14 (emphasis added). Attorneys can delegate certain responsibilities, but they must "know whether AI technology is being used" and "ensure that appropriate steps are being taken to verify the truthfulness and accuracy of any AI-generated content." Id. at 15. In other words, ignoring AI is not an option, even for attorneys who do not use or plan to use generative AI tools.

Rule 1.1 of Utah's Rules of Professional Conduct requires lawyers to provide competent representation, and comment 8 to the rule explains that competent...