The Oklahoma Bar Journal August 2023

of judges. Lawyers, on the other hand, are advocates who swear oaths of zealous representation, which is supposed to be tempered by duty, honor, truth and justice. Judge Starr further opines that AI programs are “[u]nbound by any sense of duty, honor or jus tice” and “act according to com puter code rather than conviction, based on programming rather than principle.” True enough, but that implies attorneys are always bound by duty, honor and justice and act according to conviction. Although our ethics code man dates that we act with honor and conviction in the pursuit of justice, 22 we are witnessing more and more often these days that the oath and the mandate are not backed by the important part – the actual doing it part. To misquote Jerry Seinfeld: “See, you know

Or checked by “a human being” – like all of us – who are known to miss things, too.

citations, paraphrased assertions, and legal analysis – will be checked for accuracy, using print reporters or traditional legal databases, by a human being before it is submitted to the Court. I understand that any attorney who signs any filing in this case will be held responsible for the contents thereof according to Federal Rule of Civil Procedure 11, regardless of whether genera tive artificial intelligence drafted any portion of that filing.” 20 When interviewed about his new requirement, Judge Starr explained, “We’re at least putting lawyers on notice, who might not otherwise be on notice, that they can’t just trust those databases. They’ve got to actu ally verify it themselves through a traditional database.” 21 A traditional database – like our current online tools – which have failed us all.

A WIDER PROBLEM

Judge Starr’s premise is that generative AI should not be trusted because it is “prone to hallucinations and bias.” Some might respond that hallucinations and bias are not an AI-specific problem but can also be charac teristics of people with an agenda, like litigants and those paid to represent them. Judge Starr insists that human drafting, or at least double-checking, is preferable to AI-generated briefing because attorneys “swear an oath to set aside their personal prejudices, biases and beliefs to faithfully uphold the law.” One may ques tion whether that is the oath of lawyers, although that is the oath

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