Use with caution: Virginia judge slams attorney for AI abuse

Recently, a Virginia attorney submitted a brief containing case citations that didn’t exist, pointing to the use of artificial intelligence (AI) to pull the brief together. A federal judge in the Western District Court of Virginia considered sanctioning this attorney.

This incident raises critical questions about how legal professionals should use AI tools in their practice. As a plaintiff’s attorney, I see the immense potential of AI to streamline our work, but we must also recognize the responsibility that comes with it.

The incident: A cautionary tale

Iovino v. Michael Stapleton Assocs. is a case in the Western District of Virginia. The parties are embroiled in a discovery dispute which became so heated, that the judge granted a protective order.  The lawyer representing the plaintiff noted timely objections to the order; however, when she briefed the court on the issue, “[s]hockingly, her objections rely, in part, on citations to sources and quotations that appear not to exist.” This was called out in the reply brief by the defendant.  No reply was filed afterward. Ultimately, the court upheld the protective order, but that was not the end for the plaintiff’s attorney.

Federal Rule of Civil Procedure 11(c) allows district courts at the federal level to sanction parties that issue filings in bad faith, or without the necessary care in preparation.  As AI is used more and more in this area of practice, courts are increasingly consistent that, “[i]f counsel relies on artificial intelligence or other technology to draft a filing, the attorney is still responsible for ensuring the filing is accurate and does not contain fabricated caselaw or quotations.”

The judge has yet to make a final decision.

While AI tools can assist in drafting general documents, they are not a replacement for the attorney’s judgment and diligence. The consequences of submitting incorrect or fictional information to the court can be severe, which could lead to sanctions, damage to a lawyer’s reputation, and harm to the client’s case.

Can AI be a positive thing for lawyers?

Despite this cautionary tale, I believe that AI can be a valuable resource for attorneys when used responsibly. Here are a few ways it can enhance our work:

1. Initial drafting and idea generation: AI can assist in drafting initial versions of correspondence, marketing, or social media. By generating text based on prompts, it helps attorneys overcome writer’s block and quickly produces drafts that can be refined and perfected. This can save time and allow us to focus on more complex legal analysis and strategy.
2. Research assistance: AI can summarize case law, statutes, and legal principles, making it easier to understand complex topics. It can provide a starting point for research, helping attorneys to identify relevant areas of law. This takes place before lawyers conduct more in-depth searches, using verified legal databases like Westlaw or LexisNexis.
3. Client communication: AI tools can help attorneys draft client letters or emails in plain language, ensuring that our clients understand the legal process and the status of their case. This can improve client satisfaction and reduce the risk of misunderstandings.
4. Efficiency and cost-effectiveness: By automating certain aspects of legal work, AI can help reduce costs for clients. Attorneys can work more efficiently, which is especially important in cases with limited budgets.

How to use AI responsibly

To avoid pitfalls like the one referenced here, attorneys must use AI tools responsibly. Here are a few recommendations for how to integrate AI into legal practice while minimizing risks:

1. Verify all information: Treat AI as a tool for generating ideas – not for providing verified legal research. Always cross-check case citations, legal principles, and facts against reliable sources before including them in legal documents.
2. Limit AI use to non-critical tasks: Use AI for tasks that require creativity or basic drafting, but avoid relying on it for anything that requires precise legal analysis or interpretation. The attorney’s expertise should always be the guiding force behind legal decisions.
3. Keep AI-generated content confidential: Understand that AI-generated content may be subject to confidentiality concerns. Review and sanitize any content generated by AI before sharing it with clients or the court to ensure it meets professional and ethical standards. Be mindful that you are not putting sensitive client information into these resources.
4. Stay informed about AI limitations: AI is constantly evolving, and it’s crucial to stay informed about its capabilities and limitations. Understanding the weaknesses of AI, such as its inability to verify information or access up-to-date legal databases, is key to using it effectively and safely.

Chief Justice John G. Roberts, Jr. weighs in

On December 31, 2023, the Chief Justice for the United States Supreme Court issued a letter as a part of the Year-End Report on the Federal Judiciary.  In it, he recounted how far the legal profession has come with respect to technology.  He also made a specific plea to those of us using AI in the profession that we do so with humility and caution.  His examples included:

• Concern for lawyers relying on AI generating content during research because the AI software can create citations to content that does not exist
• Caution for lawyers introducing confidential information to AI software that may later be subject to privilege and/or privacy concerns
• Hesitancy for the use of AI in criminal cases due to its implications on due process, reliability, and potential bias

To read the full article click here.

Conclusion

The legal profession is evolving, and AI tools are becoming more prevalent. However, with innovation comes responsibility. As attorneys, we must use AI in ways that enhance our practice without compromising the quality of our work or the integrity of the legal system.

By approaching AI with caution and diligence, we can harness its potential to improve our efficiency, communication, and client service. But let this recent decision from the Western District Court of Virginia serve as a reminder: no tool, no matter how advanced, can replace the careful judgment and expertise of a skilled attorney.

Chief Justice Roberts said it best, “Machines cannot fully replace key actors in court…Nuance matters.”

For further reading on AI and legal ethics, check out the ABA’s recent guidance on the use of AI in legal practice here and this insightful analysis from the Stanford Law Review here.

AI is no replacement for a trial lawyer.  If you have been injured in a crash through no fault of your own, you may be entitled to compensation. For a free and confidential case evaluation, reach out to the experienced, compassionate, and fully human attorneys at Allen & Allen. Call today at 866-388-1307.