The Oklahoma Bar Journal August 2023

privilege. Consider that ChatGPT contains a warning that “[c]onver sations may be reviewed by our AI trainers to improve our systems.” 10 (“Conversations” is what gener ative AI creations are called and how they are cited.) Do we breach client confidence if AI trainers are effectively listening in? Who are those people? Some contend that using AI may constitute the unauthorized practice of law, 11 and some warn the use of AI may also potentially violate goals the bar association has collectively agreed are worth protecting, like diversity and inclusion. 12 AI looks for patterns in large data pools. The “train ing” of AI is “a statistical process” and “will have biases,” says Dr. Tonya Custis, a research director at Thomson Reuters who leads a team of research scientists devel oping natural language and search technologies for legal research. 13 “AI requires data – data about actions and decisions made by humans,” explains David Curle, director of the technology and innovation platform at the Legal Executive Institute of Thomson Reuters. 14 “If you have a system that’s reliant on hundreds of thousands or millions of human decisions, and those humans had biases, there’s a risk that the same bias will occur in the AI.” 15 As an example relevant to the legal world, David Lat, founder of Above the Law, says, “In the judicial system, one prominent example is judges making sen tencing decisions based in part on AI-driven software that claims to predict recidivism, the likelihood of committing further crimes. There is concern over how the factors used in the algorithms of such software could correlate

enough you could see them skip from wave tip to wave tip until they joined a broad collar of golden coin that was collecting half a mile out and would even tually be a dazzling sunset. 3 When I asked AI to write some thing about a “dazzling sunset and blue ocean,” it wrote: As I stood on the beach, the sky was painted with a stunning array of colors. The sun slowly sank below the horizon, casting a warm glow across the sky. The ocean was a deep shade of blue, and the waves gently lapped at the shore. It was a moment of pure serenity, and I felt com pletely at peace in the midst of such natural beauty. The daz zling sunset and blue ocean were a perfect reminder of the beauty that surrounds us every day. 4 Mr. Fitzgerald’s prose is a good example for us to consider because the best legal writing contains an element of poetry. Consider this poetic quote by United States Supreme Court Associate Justice Louis Brandeis: Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disin fectants; electric light the most efficient policeman. 5 When asked to compose a quote about exposing wrongdo ing, AI suggested: When we expose wrongdoing, we not only hold those respon sible accountable, but we also pave the way for a more just and honest society. 6

Generative AI is not Mr. Fitzgerald or Justice Brandeis, but it is not bad, and one can see why attorneys are tempted to use it. AI is able to clean up the woefully inadequate syntax, grammar, sentence structure and the mother of all failings, logical flow, in legal briefs. Moreover, AI does not ask for vacation days or 401(k) contributions.

GENERATIVE ARTIFICIAL INTELLIGENCE WITH

CATASTROPHIC CONSEQUENCES

Although using AI may be more affordable than hiring a brief writer, it is not always so, however. Consider its catastrophic cost in a case in New York, wherein a lawyer submitted a brief that cited phony cases (generated by ChatGPT) and was, as a result, publicly exposed and monetarily sanctioned for offering the court fake “law.” 7 Not surprisingly, that lawyer “greatly regrets” using AI, citing his surprise that generative AI could create false content. 8 Problematic AI is likely to rear its ugly head with more regularity in the coming days. Scholars and practitioners are already sounding alarm bells regarding AI’s creation of ethical dilemmas for lawyers, citing potential violations of our duties of competence, diligence and supervision. 9 Was the New York lawyer who offered bogus cases competent? Diligent? That would be a hard case to make. Did he “supervise” the drafting properly? No, AI had free reign here. Certainly, nothing about his submission adhered to standard duties of candor toward the tribu nal or the offering of meritorious claims and contentions. AI may also compromise our duties of confidentiality and

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL