September 9, 2025 • 61 mins
In this CLE webinar, David Cunanan, John J. Park, and Phillip Sechler will discuss recent important developments in the realm of legal ethics and professional responsibility, including the recent adoption of changes to an Arizona rule restricting who can be a complainant for purposes of state bar ethics complaints, developments related to Rule 5.6(b) of the ABA Model Rules, and the expanding use (and misuse) of AI in the legal profession.
CLE Info
If you are not seeking CLE credit for participating in this webinar, you may register free of charge.
Featuring:
Hon. David Cunanan, Independent Bar Council, Arizona; Former Judge, Maricopa County Superior Court, Arizona
John J. Park, Jr., General Counsel, Indigo Energy
Philip A. Sechler, Senior Counsel, Alliance Defending Freedom
(Moderator) Hon. Jennifer Perkins, Arizona Court of Appeals, Division One
Cost:
No CLE - Free
CLE (Member) - $25
CLE (Non-Member) - $50
To register, click the link at the top of the page.
CLE Info
If you are not seeking CLE credit for participating in this webinar, you may register free of charge.
Featuring:
Hon. David Cunanan, Independent Bar Council, Arizona; Former Judge, Maricopa County Superior Court, Arizona
John J. Park, Jr., General Counsel, Indigo Energy
Philip A. Sechler, Senior Counsel, Alliance Defending Freedom
(Moderator) Hon. Jennifer Perkins, Arizona Court of Appeals, Division One
Cost:
No CLE - Free
CLE (Member) - $25
CLE (Non-Member) - $50
To register, click the link at the top of the page.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to fedsock Forums, a podcast of the Federal Societies
Practice Groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock form programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Well, and welcome this fedsalc Forum webminar call today, September third,
twenty twenty five. We're delighted to host our twenty twenty
five Ethics clee on recent developments in legal ethics and
professional responsibility. My name is Cala Kleist, and I'm Deputy
Director of Practice Groups here at the Federalist Society. As always,
please note that all expressions of opinion are those of
(00:39):
the experts on today's program, as the Federalist Society takes
no position on particular legal or public policy issues.
Speaker 3 (00:47):
Now in the ages of.
Speaker 2 (00:48):
Time, we will keep your introductions of our guest today brief,
certainly more brief than their careers will deserve, so I
highly recommend that, if you're interested, you check out their
impressive full bios at fedsock dot org. Today, we're fortunate
with us as our moderator judge Jennifer Perkins, who serves
on the Arizona Cord of Appeals for Division one. I
believe it to her to introduce our panel. I two
(01:08):
last notes before I get off your screen. The first
is that if you are seeking Sea Lee credit, you
will we will be posting a CLEE code in the
chat box at some time during this presentation. A slide
will also appear on screen to let you know that
the information has been posted in the chat box. If
(01:31):
you have any questions, please feel free to put those
in the chat box as well.
Speaker 3 (01:36):
And I'm happy to answer them.
Speaker 2 (01:39):
You'll need to take that code and write it down
so that you can submit it as part of our
webinar in our reporting form. Also a note for those
if you have questions throughout the panel, please do submit
those via the question and answer feature likely found at
the bottom of your zoom screen, so they will be
accessible when we get to that portion of today's webinar.
With that, thank you all for joining us today. Judge Perkins,
(01:59):
the floor is yours.
Speaker 3 (02:02):
Great.
Speaker 4 (02:02):
Thank you so much, Kayla, and thank you to the
Federal Society for host NCLLY. Thank you for our outstanding
speakers who really have quite a bit of information to
share with you, and so we're going to be moving
quickly through the subjects and to that end, my introductions
will be quite brief as discussed, but I encourage you
to explore our speakers very impressive biographies which are available online.
(02:26):
As Kayla mentioned, our plan is to allow some time
for audience questions. We will do that at the very
end of the program, not after each speaker. Please do
use the Q and A function. We'll be keeping an
eye on those and I'll do my best with those submissions.
Once our speakers conclude their remarks, We're going to kick
off today with Jack Park, who currently is with Indigo
(02:47):
Energy Partners and for our purposes importantly, is the chairman
of the Executive Committee for the Federalist Society's Professional Responsibility
and Legal Education Practice Group, which is the group sponsoring
this webinar. Jack will walk us through recent developments related
to Rule five point six B of the ABA Model Rules.
Speaker 3 (03:06):
Once Jack concludes, we.
Speaker 4 (03:07):
Will hear from David Cunanan, who currently serves as the
Independent Bar Council here in Arizona and is the retired
Superior Court judge. David will explore a recent change in
this state as to who may be designated a complainant
under our rule regarding state bar disciplinary complaints and why
that change may be something other states might want to consider.
(03:28):
That is my editorial comment, not mister Cananan's. And finally,
Phil Steckler, a senior counsel at the Alliance Defending Freedom,
is going to talk briefly, which will be impressive if
we can do it briefly about the expanding use and
misuse of artificial intelligence and the legal professions. Certainly a
(03:48):
large topic, but we will hit on it briefly. And
with that, Jack, the floor is yours.
Speaker 3 (03:54):
Thank you, Judge.
Speaker 5 (03:55):
As judge managed and chair the Professional Responsibility in Prep
and Legal Education Practice Group, and at the Lawyer's Convention,
I've introduced the practice group and one of the things
that we've consistently tried to do, albeit not perfectly, is
to offer ethics CLE for the lawyers and states that
(04:16):
requires CLE as part of their CLA obligation, and this
is the twenty five iteration of that effort. As Judge mentioned,
I'm going to talk about Rule five point six of
the Model Rules of Professional Conduct.
Speaker 3 (04:38):
It's a rule that.
Speaker 5 (04:40):
Is not often encountered, but it has come up in
litigation in Georgia that I.
Speaker 6 (04:48):
Have been involved in.
Speaker 5 (04:50):
It came up as part of the mediated settlement of
for medical malpractice cases, and the defendants demanded that the
Plane and Floyer refrain from suing them in the future.
Nobody looked at the rules and I'll explain later why
(05:13):
the rule is as it is. But the clients agreed
to the settlement and lawyer agreed to the restriction on
his future practice. Then he ran it to the bar
and the bar said, no, you can't do this. So
we're now involved in litigation where the other side is
(05:33):
trying to disqualify. Decide that I'm helping them with Georgia
Rule five point six B, which is identical to the
ABA model rule provides a lawyer shall not participate in
offering or making an agreement in which a restriction on
the lawyer's right to practice as part of the settlement
(05:54):
of a controversy between private parties. That's what happened the
mediated settlement. Comment to to the Georgia rule declares paragraph
be that five point six B prohibits the lawyer from
agreeing not to represent other persons in connection with settling
(06:14):
a claim on behalf of a client.
Speaker 3 (06:19):
In their.
Speaker 5 (06:23):
Legal Ethics Lawyers despot on Professional Responsibility, Ron Rotunda and
John Zankowski note that the rule is designed to protect
both attorney independents and the public's right to counsel. They
explained that if lawyers were forced to or were allowed
to force others to agree to restrictive covenants, then these
(06:46):
covenants would impose restraints not only on the lawyer's professional autonomy,
but also on the new client's freedom to choose a lawyer,
so that model rules justify Rule five point five six
B based on two rationales, lawyer freedom and client freedom.
(07:07):
Stephen Gillers and others have pointed out that when a
client comes to see a lawyer, the lawyer need not
take on the client as a client, prospective client, and
every perspective, client is free to seek another lawyer. That's
correct as far as it goes. However, the situation controlled
(07:28):
by Rule five point six B is different. Rotunda and
Zinkowski observed this type of constraint is different from a
lawyer's unencumbered decision to reject profit employment because of the
manner in which this restraint comes about. It is not
the result of the lawyer's voluntary forbearings. Third parties imposed
(07:50):
this restriction at the time of seven, and at this
point it's useful to keep in mind a lawyer shall
not participate and offer or making. So one party proposes,
both sides make, and it seems to me that it's
a two way street.
Speaker 3 (08:10):
That binds both of them.
Speaker 5 (08:13):
The inclusion of such a restriction also puts the lawyer
for the settling clients in a conflict of interest Rotundan's
zen Kowski. Again, a lawyer would be in an inherent
and inevitable conflict of interest situation whenever his client, the plaintiff,
wants to settle and agree to the opposing party's condition
(08:37):
that the lawyer not represent any future plaintiffs against this
defendant or not represent any future plaintiffs in this kind
of lawsuit, the restriction on the plane of lawyer's right
to practice costs.
Speaker 3 (08:49):
The plane iff nothing.
Speaker 5 (08:51):
It is as the saying goes no skin off the
planeiffs nos if the planeiff's lawyer must forego future restrictions
on that lawyer's right to practice, But it does limit
the lawyer's ability to practice and the ability of future
clients to hire that lawyer. So it is against public
policy that reflects the reality that it is the client
(09:15):
that decides whether to settle, not the lawyer, And if
the client agrees to the profit settlement, then that wraps
up that lawyer's.
Speaker 3 (09:28):
Activity on behalf of that client.
Speaker 5 (09:30):
Other than wrapping up the settlement, the rule applies to
lawyers on both sides of the transaction. A State Bar
of California opinion in nineteen eighty eight makes that clear,
and it said that ethics opinions have uniformly held that
the defendant's attorney may not directly or indirectly propose such
(09:54):
a provision, nor may a plaintiff's lawyer attorney accept it.
If that happens, both attorneys have violated Rule five point six.
A New York City formal Bar opinion likewise states that
New York's parallel to Rule five point six is directed
to lawyers on both sides of the transit restrictive agreement.
(10:18):
The North Carolina Bar declared that North Carolina is parallel
to Rule five point six prohibits a lawyer from offering
a settlement that contains a restriction on a lawyer's right
to practice as a condition of leader agreement, and Rotunda
and Zinkowski say that a lawyer may not ethically agree
(10:40):
to the restriction, and the opposing lawyer may not propose
or require it. The solution, according to the Solution, is
to make such an agreement void and unforcable, not simply unethical.
A comment in the statement third of Lawyer of Law
(11:01):
Governing Lawyers makes that clear. Sub Section two states the
prohibition against restrictive agreements made in settling a client's claim.
For example, a defendant, as a condition of settlement, may
insist that the lawyer representing the plaintiff agreeing not to
take action on behalf of other clients, such as filing
(11:23):
claim similar claims against a defendant. Proposing such an agreement
would tend to create conflicts of interest between the lawyer,
who would normally be opposed to such a limitation, and
the lawyer's present client, who may wish to achieve a
favorable settlement at the terms offered. The agreement would also
(11:44):
obviously affect the freedom of future clients to choose counsel
skilled in an error in a particular area of practice.
To prevent such effects, the agreements are void and unenforceable.
Two thousand Restatement of Law governing lawyers Section thirteen comments
(12:05):
see I'll make one last point. We might might suggest
that having agreed to a settlement in which a planner's
contingency lawyer gets his contingency, he may be a stop
from contesting it. Think about standing who is injured? Who
(12:27):
can complain about that is proceeding? Further, it is only
the defendant who proposed it in the defendant's client, And
if a stopple applied, then the rule would be swallowed.
Speaker 3 (12:46):
And so Redley, it's so.
Speaker 5 (12:51):
Rotunda into Sinkowski say estopple doesn't apply. With that, I
will yield my time. I think that puts me up.
Good morning everyone, Thanks for being.
Speaker 7 (13:13):
With us today and I appreciate the opportunity to present
to you today. I'm here to talk about some changes
in Arizona made to its professional conduct rules.
Speaker 3 (13:24):
Just a short time ago.
Speaker 7 (13:26):
Just as some background, Arizona kind of been a hotbed
of a lot of different types of litigation over the
elections and various other issues that rose up on a
national level, but it played out at the state level.
And what we were seeing is that we had a
influx of individuals who were filing complaints against various attorneys
(13:48):
in our state, some from out of state, some from
in state, but they were not individuals who were necessarily.
Speaker 3 (13:55):
Involved in the litigation.
Speaker 7 (13:57):
Normally, when we think about bar complaints, those complaints come
from people within the litigation itself or the judge or
other someone who's actually directly associated with the litigation. But
a lot of these complaints were coming from outside the
litigation context, in terms of people who either saw a
news article or heard something or felt that something was
unjust in the way that it was being handled.
Speaker 3 (14:21):
The issue became who has access.
Speaker 7 (14:25):
To information, and really that was the crux of our
rule change under Arizona provisions. Normally, a complaintant is allowed
to or is required to receive a copy of a
respondence response, and a lot of times that has a
lot of sensitive information into it, and a lot of
information that is not readily available to the public because
(14:45):
it's part of the attorney's file and that has to
be disseminated to a complainant absence some type of protective order.
So to address that, and really the bar believe that
it was really unfair to provide all that information to
(15:06):
someone who was not a party to the litigation itself.
So we it made an effort to change that rule
somewhat in terms of Rule fifty three of the Addors
under Rules of Supreme Court, where we limited the access
of information once a complaint is filed, and we redefined
(15:27):
who is allowed to have that access.
Speaker 3 (15:29):
If you are still a.
Speaker 7 (15:30):
Complaintant as defined within Rule fifty three Subsection A, you
still get the same rights as any complaint would, since
you were in essence part of that litigation or had
an interest in that litigation. But if you are a
third party, the state bar becomes the complaintant and you
are not entitled to any other information which would normally
be associated with what a complaint gets under Rule fifty three.
(15:54):
In terms of balancing, it still allows people to make complaints,
It still allows them to come bring their complaints forth
because sometimes third party complaints are valid complaints, but it
doesn't allow access to information that they would not normally have.
As you can see from the materials in Arizona, was
(16:15):
a very controversial approach to controversial rule change. Normally we
don't get that kind of traffic on rule changes in Arizona,
but this one got a lot of traffic and a
lot of comments, and some people vigorously oppose that particular
change in the rules. In terms of numbers, we really
haven't seen any downturn in terms of transparency of the
(16:38):
other things that we would like within proceedings, but it
has shifted a focus to the underlying offenses versus the
public nature of the dispute, which was a goal that
we had. We obviously want to make sure that any
Bar associate member is adequate, is professional, and is in
(16:59):
complaint with the rules.
Speaker 3 (17:01):
But we also don't want to.
Speaker 7 (17:04):
A lack of a better way of put on a
public spectacle about what is going on in that underlying
bar complaint or charge. So we felt that was a
very good balancing of the interest that we have and
it protects the parties and the people who are part
of it instead of just kind of throwing complaints out there.
(17:24):
I will tell you that just as a general aside,
this is not only a problem for bar associations. We've
seen there's been a general attack on licensure in general.
For example, if an individual has a real estate license,
you can make a complaint against our real estate license.
Speaker 3 (17:40):
And that person goes through that as well. In the
judicial forum.
Speaker 7 (17:44):
We've seen out of state people make different types of
complaints against judicial officers who really have no underlying interest
in that case except that they read a news article
about it, and sometimes they file multiples. So it is
something that we are grappling with nationwide. But Arizona has
taken steps to what we believe is to balance those
interests and to be able to protect the parties that
(18:06):
need to be protected in the system that it needs.
Speaker 3 (18:08):
To be protected. So that is just a general overview.
Speaker 7 (18:12):
If anybody has any questions, I'll be happy to try
to answer them at the end, and I appreciate you
just getting the taking the time to listen to what
Arizona has done. If you need to refer to, please
do to refer to the material, because we have included
both all the objections as well as the changes to
the rule that we enacted a short time ago. With that,
I think we'll probably get on to what everyone's really interested.
Speaker 3 (18:34):
In, which is always AI.
Speaker 6 (18:41):
Thank you, Judge. I will be addressing AI and the
ethical use of artificial intelligence in the practice of law
has been a big topic at the ABA and in
state bar associations recently. The ABA model rules don't expressly
mentioned AI, and as far as I know none of
(19:01):
the state rules do either. But in July twenty twenty four,
the AVA issued Opinion number five twelve, which discusses how
AI can impact a lawyer's compliance with the professional rules
of conduct. And then over the last two years, at
least fourteen state bars and Ethics committees have issued opinions
(19:22):
on the use of AI. Many other states have published
informal guidance on the use of AI, and for the
most part, these opinions and the guidances don't have any dispute.
They all agree generally that the use of AI and
the practice of law does pose a number of ethical concerns.
Chief among those concerns are competence, candor, confidentiality, and supervision.
Speaker 3 (19:50):
And so in the next fifteen minutes, that's.
Speaker 6 (19:52):
What I'm going to talk about, competence, candor, confidentiality, and
supervision with respect to using AI in legal practice. So,
first competence, must a lawyer use AI to be competent.
We're probably all familiar with infamous comment eight from Model
one point one, which says lawyers must keep up with
(20:15):
changes in relevant technology to maintain professional competence. But in
Opinion number five twelve, the ABA said We're not yet
at the point where lawyers must use AI. The ABA noted,
it's conceivable that at some point in the future lawyers
will have to use AI to competently complete certain tasks,
(20:37):
but we're not there yet, and state bar associations say
the same thing, you don't need.
Speaker 3 (20:43):
To use AI.
Speaker 6 (20:44):
Even so, the ABA suggested that lawyers should at least
be aware of the available AI tools so they can
make an informed decision about whether to use them. So,
if you do use AI, what level of technical competence
is required? While the Texas Ethics Committee answered that question
like this, if a lawyer opts to use a generative
(21:06):
AI tool, the lawyer must have a reasonable and current
understanding of the technology.
Speaker 3 (21:11):
Because only then can the lawyer evaluate the risks of
hallucinations or inaccurate answers, the limitations that may be imposed
by the model's use of incomplete or inaccurate data, and
the potential for exposing confidential client information.
Speaker 6 (21:28):
As for the risk of an accurate answers, the DC
of the Ethics Committee had some good advice on that point.
It said, one, generative AI tools are not search engines,
lawyers should not assume that they are they're trained on
limited data sets and might not be complete or up
to date. Two they're not even programmed to accurately report
(21:51):
the content.
Speaker 3 (21:52):
Of information in a data set. Their purpose is to
predict content. Three AI products.
Speaker 6 (21:59):
Can hallucinate, which means they make things up that don't exist,
like fake case citations.
Speaker 3 (22:06):
For they build on prior interactions.
Speaker 6 (22:09):
So if they fabricate cases, those fictional cases will become
part of their data sets for future users. And five
AI products simply are not a reliable substitute for traditional
site checking. Other problems with AI, as noted by Kentucky
Ethics Opinion are six AI may struggle to grasp complex
(22:33):
legal concepts, which can produce misinterpretations. Seven, AI models trained
on bias data may perpetuate biases in legal decision making.
And eight AI tools lack transparency because they're essentially black boxes,
so it's hard to understand how they arrive at their conclusions.
(22:55):
So how can a lawyer gain technical competence and AI well?
In its opinion twelve, the ABA offer a disadvice. You
can read about AI tools focused on the legal profession.
You can attend cl programs targeted at AI tools. You
can consult others who are proficient with the technology, And
(23:17):
remember this is not a static exercise because there's a
fast paced evolution of technology, so lawyers must remain vigilant
as far as reading. The report issued by the New
York Bars AI Task Force has a great list of
resources to read to learn about AI in its Appendix B,
and the dc BAR also identified some things lawyers should
(23:40):
consider about the specific AI tools they're using. What is
in the news about the AI platform being used? Has
it been tested for its intended use by disinterested third parties?
Have other legal professionals you trust used it? And try this?
Ask it to do some something you've already done, and
(24:02):
compare the results. The bottom line is that a lawyer
cannot abdicate his or her responsibilities by relying solely on
an AI tool to perform tasks that rely on professional judgment,
and failure to engage in appropriate verification of AI output
violates Rule one point one our duty of competence, so
(24:25):
that brings us to candor. Can the lawyer violate the
duty of candor to the court by relying on AI
generated output without verification? The answer to that question is yes.
Rule three point three prohibits a lawyer from knowingly making
false statements of fact or law to a tribunal, and
Rule eight point four C prohibits a lawyer from conduct
(24:47):
involving any misrepresentation, and according to the ABA, even unintentional
misrepresentations generated by an AI tool are prohibited misrepresentations. Those
could include citations to non existent opinions, an accurate analysis
of authority, and use of misleading arguments. The ABA said
(25:11):
in Judicial Proceedings Duties to the Tribunal require lawyers, before
submitting materials to a court to review AI outputs, including
analysis and citation to authority, and to correct errors. And
the state ethics opinions on this issue say essentially the
same thing. Here's North Carolina. A lawyer's signature on the
(25:33):
pleading certifies the lawyer's good faith belief as to factual
and legal assertions Therein so, when a lawyer adopts an
AI tool's product as her own, she remains professionally responsible
for use of that product. Here's Alaska. Lawyers using generative
AI have an ethical duty to review the generative AI
(25:54):
output to ensure it is free from errors.
Speaker 3 (25:57):
And here's organ The most.
Speaker 6 (26:00):
Obvious way in which a lawyer could run a foul
of organ Rules three point three and four point one
is through the submission of and reliance on unverified and
fictitious cases, citations, quotes, or conclusions generated by AI. Of course,
there are many recent examples we all heard about where
(26:21):
lawyers are sanctioned for submitting AI output to the court
without checking it and the output ends up being false.
One of the first cases was Mada Versus Avianca comes
from the Southern District of New York in twenty twenty three.
They're a lawyer who submitted brief briefs that contained six
fictitious cases was sanctioned by the court with a fine
(26:43):
and the duty to notify his client and other judges
about the infraction. The lawyer thought that chat gpt is
a search engine with access to a comprehensive law library.
Speaker 3 (26:55):
It's not.
Speaker 6 (26:56):
When opposing counsel and the court raised questions about the
lawyer citations, what did he do?
Speaker 3 (27:02):
He asked cha gbt whether the cases were made up.
Speaker 6 (27:06):
Chat gpt told him they were not and could be
found on Westlaw that also was false.
Speaker 3 (27:12):
The judge was not impressed. A May twenty fourth article
in the Guardian cited a database that has identified one
hundred and six instances of AI hallucinations and false statements
in court documents.
Speaker 6 (27:29):
Those instances resulted in fines, suspensions from practice duties to
notify clients and others, an additional required clee. Indeed, Stanford
University researchers have found that large language model AI tools
hallucinate seventy five percent of the time. Now, two important
(27:49):
points about sanctions relating to AI. First, it's not just
the lawyers using the eye product who are on the hook,
it's every lawyer on the pleading. In February of this year,
the named partner of a prominent law firm was sanctioned
for the submission of fake AI generated authorities, even though
(28:10):
his only contribution to the brief was the basic idea
for the motion. Why was he sanctioned because his name
was on the pleading and under rule eleven, that's enough. Second,
it's not just legal argument that get arguments that get
lawyers into trouble. Lawyers have a similar responsibility over their
(28:31):
experts and other witnesses. Recently, the State of Minnesota, in
defending against a challenge to its defake law, submitted the
declaration of an expert on the dangers of AI and misinformation. Ironically,
that declaration cited two fake academic articles because the state's
(28:52):
expert on AI used AI to create the report and
didn't verify the output before submitting it, excluded the declaration
in its entirety and refuse the state's request to submit
an amended one. And the court then suggested that Rule
eleven imposes a duty on lawyers to ask witnesses whether
(29:12):
they have used AI in drafting their declarations and what
they have done to verify the truth of any AI
generated content. And again, it's not just court sanctions. AI
fabricated citations have caused attorneys to receive professional discipline. So,
for example, last year, the Middle District of Florida adopted
(29:35):
a Grievance committee's findings that a Florida lawyer violated Rule
one point three diligence and Rule three point three candor
by filing four separate pleadings with twenty six illegitimate case citations.
The discipline imposed on that lawyer included a one year
suspension from practice and completion of extra cle and counseling.
(29:58):
So turn into confidentiality. Does AI pose a risk to
the confidentiality of client information.
Speaker 3 (30:06):
The answer to that is yes. If you input.
Speaker 6 (30:09):
Information relate into a representation into an AI tool, it
could be disclosed to others in your firm for use
in other matters, It could be disclosed to people outside
the firm, and it could be retained by the AI
tool for an indefinite period of time. As the Texas
Ethics Opinion said, these are self learning tools which, by
(30:32):
their very nature store and incorporate user inputs into existing
data sets to improve their operation. The tools policies usually
even say that. For example, chat EBTs privacy policy makes
clear that it stores your input and may use it
later to provide services to other customers. Thus, lawyers who
(30:54):
input client information on or their own mental impressions about
the matter violate their duties of risk, violate violating their
duties of confidentiality. They could disclose information in violations number
one point six, and they could end up waiving the.
Speaker 3 (31:13):
Attorney client privilege. So how should a lawyer handle that risk?
Speaker 6 (31:18):
Well, first evaluate the risk that information will be disclosed.
Speaker 3 (31:22):
It's a fact driven analysis. Because each AI tool is different.
Speaker 6 (31:26):
Some tools do have a zero data retention policy in
which they retain either the inputs nor the outputs of
an interaction. Second, a lawyer would be well advised to
consult with IT experts in considering the security of an
AI tool, And third, lawyers should use reasonable care in
selecting AI vendors. As the North Carolina Ethics Opinion suggested,
(31:50):
a lawyer should ask one what is the experience, reputation,
and stability of the company, Two what security measures are
in place? And three what will happen to any information
if the company goes out of business, changes ownership, or
services are terminated. The ABA said is a baseline, all
(32:11):
lawyers should read and understand the terms of service, the
privacy policy, and contractual terms of any AI tool they use.
And if client information is to be shared with an
AI tool, then Rule one point six requires that a
lawyer get informed consent from the client. That requires the
(32:31):
lawyer to explain why the tool is being used, the
extent of any risk to the client, the particulars about
the kind of client information that will be disclosed, and
the ways that others might use that information to the
client's disadvantage. But the DC bar said clients typically should
not even be asked to consent to wide ranging disclosures
(32:53):
that could weigh the attorney client privilege, or make very
sensitive information available to third parties. Let's turn to supervision.
Rule five point one, of course, requires those running a
law firm to make reasonable efforts so that the firm
has reasonable assurance that all lawyers are complying with the rules.
(33:16):
Given the scores of problems that we've seen with lawyers
improperly using AI in violation of ethical duties, do you
think a firm is required to adopt AI policies to
address the use of AI by its lawyers and staff.
The answer to that also is yes. The new Jersey
Bar Task Force on AI issue to report, and it
(33:37):
says all law firms should adopt an organizational AI policy,
and it attaches as appendix two a sample policy. A
California ethics opinion likewise says managerial and supervisory lawyers should
establish clear policies regarding the permissible uses of generative AI
(33:57):
and otherwise make reasonable efforts to ensure a overall compliance
with the rules. The Kentucky Bar said, at a minimum,
those policies must make verification of every AI generated citation mandatory.
Kentucky also said although policies are an important step, they
(34:17):
are not the end of the firm's duties. A firm
should create a culture of security and privacy, and the
firm must train everyone on its policies. So in conclusion,
when using AI, please keep those four issues in mind competence, candor, confidentiality,
(34:39):
and supervision.
Speaker 3 (34:41):
And remember those are not all.
Speaker 6 (34:43):
Of the ethical issues that have been identified when you're
using AI, so be sure to check the specific guidance
in your jurisdiction regarding the use of AI and legal practice.
Speaker 3 (34:54):
And that's it on AI. Great, thank you to all
of our speakers.
Speaker 4 (35:03):
We've only got a couple of questions in the Q
and A function, so I just got to remind the
audience that if you have questions generated by any of this,
one of the pending questions is about the materials, and
I do not have the answer for that, but I'm
gonna just mention that if Kayla, if you want to
take up that question in the Q and A to
let folks know where they can get the materials, that
would be great. I'm going to take moderators progative and
(35:26):
kick off with a couple of questions that I had.
Speaker 3 (35:29):
Jack, your.
Speaker 4 (35:32):
Discussion about the model rule was kind of tied to
a particular case out of it sounded like Georgia primarily,
And I guess I'm just wondering if, in the course
of litigating that case, have you gotten any any sense
for how I guess how common this type of agreement
is across different jurisdictions. Is there a sort of a
(35:56):
proliferating problem here or is this a unique case that
you're experiencing.
Speaker 5 (36:00):
I don't think. I don't think it's a proliferating problem, Judge.
But you know, these guys have gone at each other
for a while, and the defendants don't want to litigate
with this plan of lawyer any longer, so they came
up with this in the course of a mediation, and
(36:22):
Georgia changed its rule to the current rule in two
thousand and one. I don't think there's been a lot
of litigation involving it when it comes up. The rule
seems to be unambiguous, so we don't have a trial
court ruling yet in either of two cases or two
(36:44):
and a half cases. But you know, I think that
the rules should be applied to both parties and the
agreement held avoid and unenforceable.
Speaker 4 (37:00):
Great, thanks Juck.
Speaker 3 (37:03):
David.
Speaker 4 (37:04):
I think something interesting about the Arizona rule. You know,
when when folks have discussed changes to address the problem
that the Arizona Rule highlights in terms of sort of
out of state non parties, folks who are just reading
media reports. To address the problem of those proliferating complaints,
(37:28):
they've talked about changes to standing, changes to standing to
bring a complaint, which of course is not what Arizona's
rule address. As you highlighted, why would you say that
Arizona's approach is the better approach or do you think
maybe there's more work to be done here in actually
(37:49):
closing off access to those types of complainants.
Speaker 3 (37:53):
Thank you, Judge Perkinson.
Speaker 7 (37:55):
There is a school of thought out there that would
like to see a standing requirement for bringing a bar complaint.
Speaker 3 (38:04):
In other words, you.
Speaker 7 (38:04):
Are directly part of that litigation, and it would foreclose
third parties from bringing any type of bar charge. I
will say that there are many instances where a third
party is a valid source of information for a bar
to make sure that the bar members are staying in
(38:25):
compliance and ethically compliant. I mean, I'll give you an
example of that trust account case in Arizona. If you
overdraw your trust account that bank is required to send
the bar a notice of overdrawn trust account and then
the bar will investigate why that account was overdrawn. And
they are obviously a third party. They're not part of
any litigation. They're not on either side, they're not a
(38:48):
testifying witness, they're not somebody's grandmother who's involved in the litigation.
Speaker 3 (38:52):
They are truly a third party.
Speaker 7 (38:55):
And we still want to get that information because that
could affect any clients if there's something financially improper going
on within the firm, and allow the bar to investigate that.
So there are Another example of that is drug and
alcohol abuse. A lot of times we get complaints that
are not necessarily someone that's a client, but someone's associated
(39:18):
with that attorney or that group of attorneys that has
issues with drug.
Speaker 3 (39:23):
Or alcohol abuse.
Speaker 7 (39:24):
And without that information, we would not be able to
make sure to get help to that individual who might
need it very much at that time. So, uh oh,
we've got the code. Everybody get the code now. Although
I see l Egos air way, I'm going to give
(39:45):
you a second to write that down and I'll continue,
all right, So we would not be able to get
(40:07):
that information otherwise. So from Arizona's perspective, And from my perspective,
I think that we still want to be able to
get that information, but we also don't want to involve
third parties in proceedings where they really have no vested
interests in the information other than that complaint.
Speaker 3 (40:25):
And we were seeing that a lot.
Speaker 7 (40:27):
We were seeing instances where things would be disclosed through
responses and all of a sudden they would go out
to the public realm, and albeit without that response and
viewing that response, it would have never been put into
the public purview because there are no confidentiality rules once
that complaintant gets that response on.
Speaker 3 (40:47):
Where there are, and there are various other protections that
are in place otherwise.
Speaker 7 (40:52):
So from my perspective, I think that Arizona's rule again
balances those interests to making sure that the bar can
step in and investigate something.
Speaker 3 (40:59):
It needs to invest gate.
Speaker 7 (41:00):
But on the other hand, it doesn't provide a free
flow of information that a person normally would not be
entitled to since they were not involved in the litigation itself.
So I'm going to step back for just a second,
because I understand that there was some issue with regard
in the materials, and I'm going to tell you what
Rule fifty three was amended to be, just so you
have kind of a background.
Speaker 3 (41:22):
Rule fifty three Subsection.
Speaker 7 (41:23):
A states an individual or entity will be a complaintant
regarding a charge if they have had an attorney client
relationship with the responderant, direct and specific first hand knowledge
of the conduct described in the charge, or became aware
of the conduct.
Speaker 3 (41:37):
In their role as a judicial officer.
Speaker 7 (41:40):
If a charge is submitted by the individual entity that
does not meet one of these criteria, the state bar
will be the complaint and pursue the matter accordingly. And
it goes on to talk about the different types of things,
but you can see we really limit access to information
if you are not part of that litigation, and we
want the focus to be on what happened, not necessarily
(42:01):
a free flow of information, and open up an attorney's file,
because a lot of times, in order to respond to
a charge, the attorney really has to go into detail
about who their clients are, what happened, some kind of
thoughts and impressions, and a lot of information that obviously
is not normally out within the public realm. So we
think we balance those interests in Arizona. And if I
could just have a second.
Speaker 3 (42:21):
I was going to answer something about on the AI issue.
Speaker 7 (42:23):
As well, because we've seen a really big spike in
complaints regarding AI usage by the attorneys. I think what
everybody should keep in mind on that is that AI
is a tool. It is not a substitute for an
attorney's judgment and input. It is just a tool, and
you really need to treat it like that, because if
(42:43):
you don't sitecheck, if you don't independently site check outside
of that, we see that's the spike in cases people
are using that and just filing those pleadings, and of
course the judicial officer catches it and it always generates
a complaint right after that. So keep in mind that
it is a tool, not a substitute for your judgment
(43:06):
as an attorney, you should always check as soon as
you sign, you should always check.
Speaker 3 (43:10):
The other issue that I kind of just would like
to touch on on that is that a.
Speaker 7 (43:13):
Lot of times also disclose you to your client that
the firm or the attorney is going to use AI
is also a good idea because sometimes we also see
complaints that on billing issues about how that AI is
built out and how that and who is going to
be responsible for the AI costs and what those costs
are going to be. So disclosure in putting that in
(43:34):
a place with your client prior to representation or part
of the representation agreement is a good idea so you
don't generate those subsequent complaints.
Speaker 3 (43:43):
Thank you, Judge Perkins.
Speaker 4 (43:46):
Thanks David phil Unsurprisingly, a significant number of the pending
questions relate to AI, so I'm just going to drop
in that rather than asking my own. But one of
the early questions did address something that I think is
a broad question and it's one that I've had. You know,
you've given us some cautionary guardrail kind of areas to
(44:07):
think about in using AI, And the question asked, you know,
based on these concerns and the findings, is it currently
unethically risky per se for an attorney to involve generative
AI in legal practice.
Speaker 6 (44:24):
Yeah, that's a good question, given everything we just talked
about in all the cases that you see. But as
Judge caunan and just said, it is a tool, and
I think it's a very effective, powerful tool.
Speaker 3 (44:34):
I don't think it's too risky to use, but you
just need to verify the output.
Speaker 6 (44:39):
But still think about how much work you can do
to get a head start on the research, on the writing,
on reviewing documents. As long as you review the output
and verify it in a reasonable way, you can save
a lot of time with this tool. So I don't
think it's risky. I do think it requires understan in
(45:00):
the tool that you're using exp limitations and then using
it accordingly.
Speaker 3 (45:08):
Thanks.
Speaker 4 (45:09):
We're going to pop back to Jack's topic for a moment.
We have a question that notes that you know, we've
used the language imposed, which is slippery. If a defendant
asks as part of settlement negotiation and the lawyer agrees,
should we consider that to be you know, quote unquote imposed.
What are your thoughts, Jack, Sorry, Jack, you're muted.
Speaker 6 (45:39):
Yes, I think that.
Speaker 5 (45:42):
Keep in mind what the rule starts with a lawyer
shall not participate in offering or making such an agreement,
and the dynamics of the settlement favor the client's interests
or the lawyer's interests in pursuing future litigate So I
think I.
Speaker 6 (46:03):
Think imposed is kind of.
Speaker 5 (46:06):
The way Rotundan and Zinkowski think about it.
Speaker 3 (46:10):
And if you want a settlement then you may have.
Speaker 5 (46:14):
Then the client doesn't care whether you represent somebody against
that defendant down the road or may not care but
really has nothing to say about it. So I think
the answer is if the defendant asks this part of
settlement agreement and the lawyer agrees, that is imposed or
(46:35):
otherwise in violation of the rule because somebody offered and
both parties made an agreement.
Speaker 3 (46:45):
Great, Thank you, Jack.
Speaker 6 (46:48):
David.
Speaker 4 (46:49):
We've had a question, are there any practical mechanisms to
insulate political or partisan court officers attorneys general? I know
there's been a significant increase in complaint against DJ line attorneys.
I was the subject of one of these complaints in
an election case. The judge it as well. What are
(47:10):
the practical mechanisms to insulate these sort of folks from
politically driven bar complaints? How do we prevent such complaints
from hamstringing elected officials jobs?
Speaker 7 (47:22):
In terms of practical mechanisms in Arizona, I don't think
there's a practical mechanism that says you can't file the
bar complaint. We have always allowed anybody who wants to
file the bar cleping to do that. What I think
our rule does is it takes the complainants out of
the equation and it just allows the bar to look
at the charge itself, and that is important because instead
(47:48):
of becoming a complaint driven issue, it becomes a bar
driven issue, and we are just able to focus more
in on the conduct and what happened versus the political
nature of the background and whether you are on one
side of the aisle or the other side of the aisle,
because from a bar's perspective, that should not be part
(48:08):
of the equation. It should really be based on conduct
and what you did, not who you are or what
you're aspiring or what you're touting at that particular time.
And sometimes that's a hard distinction for a lot of
people to make. I mean, I wouldn't disagree that sometimes
based upon the bar itself, it could have different connotations
(48:29):
and different implications. But we as someone who looks at
these charges, should always be driven by the facts, not
by political implications of what we do or how we
do it. So it was a very long way of
saying I don't think there's anything practical, but a lot
of that rests with the discretion of the bar people
(48:50):
themselves and being able to say I'm going to look
at the facts and not get worked up about the
political nature of that because in Arizona we had a
lot of that political nature coming through, and it was
up to the bar to kind of sort through that
and be able to only talk about if there's a
legible conduct, not the politics behind that kind of drew
(49:14):
a lot of those independent complaints.
Speaker 4 (49:19):
Thanks Steven, Phil Coming back to you, this is an
interesting question. Do you think that sports and or state
bars will eventually treat minor hallucinations as forgivable site checking errors?
It seems that there needs to be some allowance for
AI error if there is going to be widespread adoption
(49:40):
of generative AI by attorneys. And I'll just say this
is particularly interesting to me because I recently had a
case in which an entire section of an attorney's brief
made an argument that I just knew to be legally wrong,
and literally every citation in the section was either or
incorrect statement about what was in the in that section.
(50:05):
So I'm not feeling particularly forgivable about something like that.
It was a lot of extra legwork for us to
run that down. But there is an interesting point here
about the widespread adoption of generative AI by attorneys.
Speaker 3 (50:16):
What are your thoughts?
Speaker 6 (50:18):
Yeah, I think actually it could be the other way,
I think courts and bar associations might look at the
failure to verify AI output as unforgivable. And I know
some courts are having issuing orders, So the Northern District
of Texas is one where they have their own order
(50:39):
on the use of AI and what you have to do.
You have to disclose it you're using it, and there
are some other requirements as well. So definitely, if you're practicing,
make sure you're aware whether or not the court you're
before or the judger before has any special rules or
orders governing the use of AI. But I do think
(51:00):
think as AI becomes more and more of a thing,
it's going to be incumbent upon anyone relying on it
to verify each source. So I think it's different from
like a typo or some other forgivable error. If you
literally have a case that cited that doesn't exist, I
think one strike is going to be enough.
Speaker 3 (51:27):
And Judge Ferkins John mute, thank.
Speaker 4 (51:30):
You, right. So I think arguably a follow up to that,
assuming AI can be ethically used and that and that
we're going to have to operate within these bounds and
there's going to be this sort of strict nature of
the of the use. It's it's I think Jeff and
(51:51):
Trell points out this as going to be a part
of our billing in the future. What does that look like?
So how do you build for the purported time saving?
Can you incorporate value bill scenario? And to the point
that I think Judge Cananan had raised, what are your
thoughts on disclosure at the outset of the representation as
(52:11):
AI use for purposes of billing?
Speaker 6 (52:15):
So I'll address the billing question first, Judge Perkins, because
it's a good one. At the beginning, I noted that
for the most part, these state opinions agree, but I
think i'm billing is one area where there is an agreement.
In fact, Virginia the Supreme Court now has before a
proposed rule on AI that would allow lawyers to benefit
(52:44):
from the time savings and not forget about it, like
if they decide to invest in AI, they can recapture
some of the.
Speaker 3 (52:52):
Value and cost of that investment.
Speaker 6 (52:56):
Other jurisdictions are not as flexible, and they.
Speaker 3 (53:00):
Really suggest that lawyers.
Speaker 6 (53:01):
Should not if they have time saving that should entirely
be written off. Essentially, Now, as Judge cunan and mentioned,
there might be occasions where you actually build a client
for particular AI tools, similar to some firms billing for
Westlaw usage. But apart from that, if you literally are
now doing something in ten minutes which used to take
(53:25):
ten hours. Most jurisdictions have addressed that saying, look, you
can only build for ten minutes, and I think the
Virginia approach is a little more flexible. So the bottom
line is on billing, definitely pays to find the guidance
in your jurisdiction, whether it's an opinion or just some
advisory material, to see what the state thinks about billing issues.
Speaker 4 (53:53):
So following a little up a little bit on the
disclosure element to that. You know, as you noted filed,
there are some places that have local rules on point.
Occasionally it's for a particular judge, if not the entire court,
requiring disclosure and certification for use of AI. Have you
(54:13):
seen much in the way of guidance or directives in
the absence of such mandating rules for what type of
disclosure is required or should be done?
Speaker 6 (54:24):
I guess so what I've seen in the state advisory
opinions and other guidance is really a discussion of disclosure
of the client.
Speaker 3 (54:36):
As Judge q Nanon said.
Speaker 6 (54:38):
You know, we do have a duty to keep your
client informed, and part of that is to let your
client know if you're using AI, especially if it could
be material to the representation in terms of decisions being
made in actions being taken.
Speaker 3 (54:52):
I haven't seen much written up in terms of.
Speaker 6 (54:55):
Disclosure to a court if the court doesn't have rules,
and I don't I'd be interested to hear what Judge
Canana thinks about this, but I don't know that you'd
have any kind of ethical responsibility.
Speaker 3 (55:06):
To disclose use of AI in the absence of rules
saying you do. And just one quick thought, you know, Westlaw's.
Speaker 6 (55:17):
Natural language searching, which has been around for a long time,
is a form of AI that we've all been using
for quite a while.
Speaker 3 (55:25):
So I don't know.
Speaker 6 (55:26):
It seems to me that the more sophisticated AI we
have now is just an extension of that, And I
don't think it would have to be disclosed unless the
court said we want to know.
Speaker 3 (55:38):
So there are particular.
Speaker 7 (55:41):
Judges and particular jurisdictions that have very specific rules. For
my years on the bench, I didn't care how you
produced it, just that it was accurate, and it was
true because that's what you were signing to when you
signed it, right, And whether your associate did it or
whether you did it, or whether your paralegal help with it,
however it worked out, you were the one signing and
(56:03):
you were the one responsible, and so as long as
it complied with that, that's all that I really required
to be disclosed. But there are there judges who take
a different view of that, and other jurisdictions that take
a different view of that.
Speaker 3 (56:16):
It, you know, part of.
Speaker 7 (56:18):
The billing issues that we see, and we had a
couple of cases like.
Speaker 3 (56:22):
This where they were you're right.
Speaker 7 (56:25):
Kind of value billing, and what they were doing was
they were billing at the partner's hourly rate for AI work.
And it came through on what we call as a
China doll Alphia David, which means that's something now we
submit to the court, submitted to the court in terms
of attorney's fees of ward against another party. And so
immediately the other side was investigating that and countering that
(56:46):
with you know, why am I paying for this when
it was AI generated or AI produced. It did take
a little more digging to get to that and that's
when an inquiry had to happen that normally would not
have to happen in front of the court. So you
should be careful in the way that you build, how
you do, and what your disclosures are.
Speaker 3 (57:04):
But in terms of the.
Speaker 7 (57:06):
Ethical obligations, I think at this point, based upon the rules,
you don't have to disclose that to the court. You
have a little bit of different duty to your client
as to how you do and how you bill. But
I haven't seen any courts that are requiring that to
be disclosed apps in a specific order that they do
in their scheduling order or in their standing orders of
the court, depending upon the division that you're in front of.
Speaker 4 (57:30):
So Charles Wilson asks, will the court supports sanctions and
compensation to the other side for time spent checking the
opponent's bad AI generated documents?
Speaker 3 (57:42):
So interesting question, you know, Phil or.
Speaker 4 (57:45):
David, if you want to have thoughts, I will tell
you if if I have to spend a bunch of
time running down false sites are to be more clear,
if my law clerks have to do that, I am
probably going to be at least favorably inclined towards that
sort of fee request. But that Phil, have you seen
anything along those lines or do you have any thoughts
(58:05):
on that from the research you've done, And.
Speaker 6 (58:07):
That's good to know, Judge. So I do what I've
seen in the opinions on the issue of monetary sanctions
is typically judges looking at the market, meaning what have
other courts imposed for fake citations, maybe even per citation.
But there does seem to be some desire whether it's
(58:30):
ten thousand dollars somewhere around there per fake citation. But
I've seen judges express some concern that they want to
be consistent and I haven't really seen it so far
based on the amount of time that the opposing party
took to identify and correct it.
Speaker 3 (58:48):
But maybe in Arizona that would be that would work.
Speaker 7 (58:54):
So I think that it depends upon the type of
scene you're talking about. I have seen individuals lit sanctions
that relate to a particular motion and being able to
address having to respond to that motion that had hallucinations
in it or fake citations versus an overall of ward
of attorneys fees, and I think those are two kinds
of different things, and I've seen them more on the
(59:15):
individual basis, and I've seen judges that have awarded that
based upon having to what when Esson's turned out to
be a frivolous motion or a frieblest basis. So I
think they could be inclined to do that on an
individualized motion based practice, but maybe maybe a little different
story in terms of an overall case approach.
Speaker 4 (59:35):
Great, well, we are bumping up the top of the
next hour, and so I will just say thank you
to all the speakers and ask Kayla if there is
any closing information you'd like to provide to our attendees.
Speaker 2 (59:49):
Well, thank you so much. I'd like to start with
thanks to our panel. We really appreciate you all joining
us and sharing our expertise and insight on these topics.
Thanks also to our audience for joining. And there is
a last cle comment for those seeking CL tenants. The
attendance reporting form has just been dropped in the chat.
Please open that and plead it. Following this webinar, a
(01:00:11):
CoA with your calculated CL credit will be emailed to
the email address you provide within a week, along with
any pertinent CL credit reporting information that you need for
your state. If you do not receive the follow up
or have issues opening the link, Please reach out to
us at CLEE at fedsoc dot org and we will
get in touch with you. We also welcome listener to
(01:00:31):
feedback on our general programming at fedsoc Forms at fedsoc
dot org. And with that we can wrap up. Thank
you all again, we really appreciate you joining us today.
This program is adjourned.
Speaker 1 (01:00:42):
Thank you for listening to this episode of fedsoc Forms,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot or org
Welcome to fedsock Forums, a podcast of the Federal Societies
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Speaker 2 (00:18):
Well, and welcome this fedsalc Forum webminar call today, September third,
twenty twenty five. We're delighted to host our twenty twenty
five Ethics clee on recent developments in legal ethics and
professional responsibility. My name is Cala Kleist, and I'm Deputy
Director of Practice Groups here at the Federalist Society. As always,
please note that all expressions of opinion are those of
(00:39):
the experts on today's program, as the Federalist Society takes
no position on particular legal or public policy issues.
Speaker 3 (00:47):
Now in the ages of.
Speaker 2 (00:48):
Time, we will keep your introductions of our guest today brief,
certainly more brief than their careers will deserve, so I
highly recommend that, if you're interested, you check out their
impressive full bios at fedsock dot org. Today, we're fortunate
with us as our moderator judge Jennifer Perkins, who serves
on the Arizona Cord of Appeals for Division one. I
believe it to her to introduce our panel. I two
(01:08):
last notes before I get off your screen. The first
is that if you are seeking Sea Lee credit, you
will we will be posting a CLEE code in the
chat box at some time during this presentation. A slide
will also appear on screen to let you know that
the information has been posted in the chat box. If
(01:31):
you have any questions, please feel free to put those
in the chat box as well.
Speaker 3 (01:36):
And I'm happy to answer them.
Speaker 2 (01:39):
You'll need to take that code and write it down
so that you can submit it as part of our
webinar in our reporting form. Also a note for those
if you have questions throughout the panel, please do submit
those via the question and answer feature likely found at
the bottom of your zoom screen, so they will be
accessible when we get to that portion of today's webinar.
With that, thank you all for joining us today. Judge Perkins,
(01:59):
the floor is yours.
Speaker 3 (02:02):
Great.
Speaker 4 (02:02):
Thank you so much, Kayla, and thank you to the
Federal Society for host NCLLY. Thank you for our outstanding
speakers who really have quite a bit of information to
share with you, and so we're going to be moving
quickly through the subjects and to that end, my introductions
will be quite brief as discussed, but I encourage you
to explore our speakers very impressive biographies which are available online.
(02:26):
As Kayla mentioned, our plan is to allow some time
for audience questions. We will do that at the very
end of the program, not after each speaker. Please do
use the Q and A function. We'll be keeping an
eye on those and I'll do my best with those submissions.
Once our speakers conclude their remarks, We're going to kick
off today with Jack Park, who currently is with Indigo
(02:47):
Energy Partners and for our purposes importantly, is the chairman
of the Executive Committee for the Federalist Society's Professional Responsibility
and Legal Education Practice Group, which is the group sponsoring
this webinar. Jack will walk us through recent developments related
to Rule five point six B of the ABA Model Rules.
Speaker 3 (03:06):
Once Jack concludes, we.
Speaker 4 (03:07):
Will hear from David Cunanan, who currently serves as the
Independent Bar Council here in Arizona and is the retired
Superior Court judge. David will explore a recent change in
this state as to who may be designated a complainant
under our rule regarding state bar disciplinary complaints and why
that change may be something other states might want to consider.
(03:28):
That is my editorial comment, not mister Cananan's. And finally,
Phil Steckler, a senior counsel at the Alliance Defending Freedom,
is going to talk briefly, which will be impressive if
we can do it briefly about the expanding use and
misuse of artificial intelligence and the legal professions. Certainly a
(03:48):
large topic, but we will hit on it briefly. And
with that, Jack, the floor is yours.
Speaker 3 (03:54):
Thank you, Judge.
Speaker 5 (03:55):
As judge managed and chair the Professional Responsibility in Prep
and Legal Education Practice Group, and at the Lawyer's Convention,
I've introduced the practice group and one of the things
that we've consistently tried to do, albeit not perfectly, is
to offer ethics CLE for the lawyers and states that
(04:16):
requires CLE as part of their CLA obligation, and this
is the twenty five iteration of that effort. As Judge mentioned,
I'm going to talk about Rule five point six of
the Model Rules of Professional Conduct.
Speaker 3 (04:38):
It's a rule that.
Speaker 5 (04:40):
Is not often encountered, but it has come up in
litigation in Georgia that I.
Speaker 6 (04:48):
Have been involved in.
Speaker 5 (04:50):
It came up as part of the mediated settlement of
for medical malpractice cases, and the defendants demanded that the
Plane and Floyer refrain from suing them in the future.
Nobody looked at the rules and I'll explain later why
(05:13):
the rule is as it is. But the clients agreed
to the settlement and lawyer agreed to the restriction on
his future practice. Then he ran it to the bar
and the bar said, no, you can't do this. So
we're now involved in litigation where the other side is
(05:33):
trying to disqualify. Decide that I'm helping them with Georgia
Rule five point six B, which is identical to the
ABA model rule provides a lawyer shall not participate in
offering or making an agreement in which a restriction on
the lawyer's right to practice as part of the settlement
(05:54):
of a controversy between private parties. That's what happened the
mediated settlement. Comment to to the Georgia rule declares paragraph
be that five point six B prohibits the lawyer from
agreeing not to represent other persons in connection with settling
(06:14):
a claim on behalf of a client.
Speaker 3 (06:19):
In their.
Speaker 5 (06:23):
Legal Ethics Lawyers despot on Professional Responsibility, Ron Rotunda and
John Zankowski note that the rule is designed to protect
both attorney independents and the public's right to counsel. They
explained that if lawyers were forced to or were allowed
to force others to agree to restrictive covenants, then these
(06:46):
covenants would impose restraints not only on the lawyer's professional autonomy,
but also on the new client's freedom to choose a lawyer,
so that model rules justify Rule five point five six
B based on two rationales, lawyer freedom and client freedom.
(07:07):
Stephen Gillers and others have pointed out that when a
client comes to see a lawyer, the lawyer need not
take on the client as a client, prospective client, and
every perspective, client is free to seek another lawyer. That's
correct as far as it goes. However, the situation controlled
(07:28):
by Rule five point six B is different. Rotunda and
Zinkowski observed this type of constraint is different from a
lawyer's unencumbered decision to reject profit employment because of the
manner in which this restraint comes about. It is not
the result of the lawyer's voluntary forbearings. Third parties imposed
(07:50):
this restriction at the time of seven, and at this
point it's useful to keep in mind a lawyer shall
not participate and offer or making. So one party proposes,
both sides make, and it seems to me that it's
a two way street.
Speaker 3 (08:10):
That binds both of them.
Speaker 5 (08:13):
The inclusion of such a restriction also puts the lawyer
for the settling clients in a conflict of interest Rotundan's
zen Kowski. Again, a lawyer would be in an inherent
and inevitable conflict of interest situation whenever his client, the plaintiff,
wants to settle and agree to the opposing party's condition
(08:37):
that the lawyer not represent any future plaintiffs against this
defendant or not represent any future plaintiffs in this kind
of lawsuit, the restriction on the plane of lawyer's right
to practice costs.
Speaker 3 (08:49):
The plane iff nothing.
Speaker 5 (08:51):
It is as the saying goes no skin off the
planeiffs nos if the planeiff's lawyer must forego future restrictions
on that lawyer's right to practice, But it does limit
the lawyer's ability to practice and the ability of future
clients to hire that lawyer. So it is against public
policy that reflects the reality that it is the client
(09:15):
that decides whether to settle, not the lawyer, And if
the client agrees to the profit settlement, then that wraps
up that lawyer's.
Speaker 3 (09:28):
Activity on behalf of that client.
Speaker 5 (09:30):
Other than wrapping up the settlement, the rule applies to
lawyers on both sides of the transaction. A State Bar
of California opinion in nineteen eighty eight makes that clear,
and it said that ethics opinions have uniformly held that
the defendant's attorney may not directly or indirectly propose such
(09:54):
a provision, nor may a plaintiff's lawyer attorney accept it.
If that happens, both attorneys have violated Rule five point six.
A New York City formal Bar opinion likewise states that
New York's parallel to Rule five point six is directed
to lawyers on both sides of the transit restrictive agreement.
(10:18):
The North Carolina Bar declared that North Carolina is parallel
to Rule five point six prohibits a lawyer from offering
a settlement that contains a restriction on a lawyer's right
to practice as a condition of leader agreement, and Rotunda
and Zinkowski say that a lawyer may not ethically agree
(10:40):
to the restriction, and the opposing lawyer may not propose
or require it. The solution, according to the Solution, is
to make such an agreement void and unforcable, not simply unethical.
A comment in the statement third of Lawyer of Law
(11:01):
Governing Lawyers makes that clear. Sub Section two states the
prohibition against restrictive agreements made in settling a client's claim.
For example, a defendant, as a condition of settlement, may
insist that the lawyer representing the plaintiff agreeing not to
take action on behalf of other clients, such as filing
(11:23):
claim similar claims against a defendant. Proposing such an agreement
would tend to create conflicts of interest between the lawyer,
who would normally be opposed to such a limitation, and
the lawyer's present client, who may wish to achieve a
favorable settlement at the terms offered. The agreement would also
(11:44):
obviously affect the freedom of future clients to choose counsel
skilled in an error in a particular area of practice.
To prevent such effects, the agreements are void and unenforceable.
Two thousand Restatement of Law governing lawyers Section thirteen comments
(12:05):
see I'll make one last point. We might might suggest
that having agreed to a settlement in which a planner's
contingency lawyer gets his contingency, he may be a stop
from contesting it. Think about standing who is injured? Who
(12:27):
can complain about that is proceeding? Further, it is only
the defendant who proposed it in the defendant's client, And
if a stopple applied, then the rule would be swallowed.
Speaker 3 (12:46):
And so Redley, it's so.
Speaker 5 (12:51):
Rotunda into Sinkowski say estopple doesn't apply. With that, I
will yield my time. I think that puts me up.
Good morning everyone, Thanks for being.
Speaker 7 (13:13):
With us today and I appreciate the opportunity to present
to you today. I'm here to talk about some changes
in Arizona made to its professional conduct rules.
Speaker 3 (13:24):
Just a short time ago.
Speaker 7 (13:26):
Just as some background, Arizona kind of been a hotbed
of a lot of different types of litigation over the
elections and various other issues that rose up on a
national level, but it played out at the state level.
And what we were seeing is that we had a
influx of individuals who were filing complaints against various attorneys
(13:48):
in our state, some from out of state, some from
in state, but they were not individuals who were necessarily.
Speaker 3 (13:55):
Involved in the litigation.
Speaker 7 (13:57):
Normally, when we think about bar complaints, those complaints come
from people within the litigation itself or the judge or
other someone who's actually directly associated with the litigation. But
a lot of these complaints were coming from outside the
litigation context, in terms of people who either saw a
news article or heard something or felt that something was
unjust in the way that it was being handled.
Speaker 3 (14:21):
The issue became who has access.
Speaker 7 (14:25):
To information, and really that was the crux of our
rule change under Arizona provisions. Normally, a complaintant is allowed
to or is required to receive a copy of a
respondence response, and a lot of times that has a
lot of sensitive information into it, and a lot of
information that is not readily available to the public because
(14:45):
it's part of the attorney's file and that has to
be disseminated to a complainant absence some type of protective order.
So to address that, and really the bar believe that
it was really unfair to provide all that information to
(15:06):
someone who was not a party to the litigation itself.
So we it made an effort to change that rule
somewhat in terms of Rule fifty three of the Addors
under Rules of Supreme Court, where we limited the access
of information once a complaint is filed, and we redefined
(15:27):
who is allowed to have that access.
Speaker 3 (15:29):
If you are still a.
Speaker 7 (15:30):
Complaintant as defined within Rule fifty three Subsection A, you
still get the same rights as any complaint would, since
you were in essence part of that litigation or had
an interest in that litigation. But if you are a
third party, the state bar becomes the complaintant and you
are not entitled to any other information which would normally
be associated with what a complaint gets under Rule fifty three.
(15:54):
In terms of balancing, it still allows people to make complaints,
It still allows them to come bring their complaints forth
because sometimes third party complaints are valid complaints, but it
doesn't allow access to information that they would not normally have.
As you can see from the materials in Arizona, was
(16:15):
a very controversial approach to controversial rule change. Normally we
don't get that kind of traffic on rule changes in Arizona,
but this one got a lot of traffic and a
lot of comments, and some people vigorously oppose that particular
change in the rules. In terms of numbers, we really
haven't seen any downturn in terms of transparency of the
(16:38):
other things that we would like within proceedings, but it
has shifted a focus to the underlying offenses versus the
public nature of the dispute, which was a goal that
we had. We obviously want to make sure that any
Bar associate member is adequate, is professional, and is in
(16:59):
complaint with the rules.
Speaker 3 (17:01):
But we also don't want to.
Speaker 7 (17:04):
A lack of a better way of put on a
public spectacle about what is going on in that underlying
bar complaint or charge. So we felt that was a
very good balancing of the interest that we have and
it protects the parties and the people who are part
of it instead of just kind of throwing complaints out there.
(17:24):
I will tell you that just as a general aside,
this is not only a problem for bar associations. We've
seen there's been a general attack on licensure in general.
For example, if an individual has a real estate license,
you can make a complaint against our real estate license.
Speaker 3 (17:40):
And that person goes through that as well. In the
judicial forum.
Speaker 7 (17:44):
We've seen out of state people make different types of
complaints against judicial officers who really have no underlying interest
in that case except that they read a news article
about it, and sometimes they file multiples. So it is
something that we are grappling with nationwide. But Arizona has
taken steps to what we believe is to balance those
interests and to be able to protect the parties that
(18:06):
need to be protected in the system that it needs.
Speaker 3 (18:08):
To be protected. So that is just a general overview.
Speaker 7 (18:12):
If anybody has any questions, I'll be happy to try
to answer them at the end, and I appreciate you
just getting the taking the time to listen to what
Arizona has done. If you need to refer to, please
do to refer to the material, because we have included
both all the objections as well as the changes to
the rule that we enacted a short time ago. With that,
I think we'll probably get on to what everyone's really interested.
Speaker 3 (18:34):
In, which is always AI.
Speaker 6 (18:41):
Thank you, Judge. I will be addressing AI and the
ethical use of artificial intelligence in the practice of law
has been a big topic at the ABA and in
state bar associations recently. The ABA model rules don't expressly
mentioned AI, and as far as I know none of
(19:01):
the state rules do either. But in July twenty twenty four,
the AVA issued Opinion number five twelve, which discusses how
AI can impact a lawyer's compliance with the professional rules
of conduct. And then over the last two years, at
least fourteen state bars and Ethics committees have issued opinions
(19:22):
on the use of AI. Many other states have published
informal guidance on the use of AI, and for the
most part, these opinions and the guidances don't have any dispute.
They all agree generally that the use of AI and
the practice of law does pose a number of ethical concerns.
Chief among those concerns are competence, candor, confidentiality, and supervision.
Speaker 3 (19:50):
And so in the next fifteen minutes, that's.
Speaker 6 (19:52):
What I'm going to talk about, competence, candor, confidentiality, and
supervision with respect to using AI in legal practice. So,
first competence, must a lawyer use AI to be competent.
We're probably all familiar with infamous comment eight from Model
one point one, which says lawyers must keep up with
(20:15):
changes in relevant technology to maintain professional competence. But in
Opinion number five twelve, the ABA said We're not yet
at the point where lawyers must use AI. The ABA noted,
it's conceivable that at some point in the future lawyers
will have to use AI to competently complete certain tasks,
(20:37):
but we're not there yet, and state bar associations say
the same thing, you don't need.
Speaker 3 (20:43):
To use AI.
Speaker 6 (20:44):
Even so, the ABA suggested that lawyers should at least
be aware of the available AI tools so they can
make an informed decision about whether to use them. So,
if you do use AI, what level of technical competence
is required? While the Texas Ethics Committee answered that question
like this, if a lawyer opts to use a generative
(21:06):
AI tool, the lawyer must have a reasonable and current
understanding of the technology.
Speaker 3 (21:11):
Because only then can the lawyer evaluate the risks of
hallucinations or inaccurate answers, the limitations that may be imposed
by the model's use of incomplete or inaccurate data, and
the potential for exposing confidential client information.
Speaker 6 (21:28):
As for the risk of an accurate answers, the DC
of the Ethics Committee had some good advice on that point.
It said, one, generative AI tools are not search engines,
lawyers should not assume that they are they're trained on
limited data sets and might not be complete or up
to date. Two they're not even programmed to accurately report
(21:51):
the content.
Speaker 3 (21:52):
Of information in a data set. Their purpose is to
predict content. Three AI products.
Speaker 6 (21:59):
Can hallucinate, which means they make things up that don't exist,
like fake case citations.
Speaker 3 (22:06):
For they build on prior interactions.
Speaker 6 (22:09):
So if they fabricate cases, those fictional cases will become
part of their data sets for future users. And five
AI products simply are not a reliable substitute for traditional
site checking. Other problems with AI, as noted by Kentucky
Ethics Opinion are six AI may struggle to grasp complex
(22:33):
legal concepts, which can produce misinterpretations. Seven, AI models trained
on bias data may perpetuate biases in legal decision making.
And eight AI tools lack transparency because they're essentially black boxes,
so it's hard to understand how they arrive at their conclusions.
(22:55):
So how can a lawyer gain technical competence and AI well?
In its opinion twelve, the ABA offer a disadvice. You
can read about AI tools focused on the legal profession.
You can attend cl programs targeted at AI tools. You
can consult others who are proficient with the technology, And
(23:17):
remember this is not a static exercise because there's a
fast paced evolution of technology, so lawyers must remain vigilant
as far as reading. The report issued by the New
York Bars AI Task Force has a great list of
resources to read to learn about AI in its Appendix B,
and the dc BAR also identified some things lawyers should
(23:40):
consider about the specific AI tools they're using. What is
in the news about the AI platform being used? Has
it been tested for its intended use by disinterested third parties?
Have other legal professionals you trust used it? And try this?
Ask it to do some something you've already done, and
(24:02):
compare the results. The bottom line is that a lawyer
cannot abdicate his or her responsibilities by relying solely on
an AI tool to perform tasks that rely on professional judgment,
and failure to engage in appropriate verification of AI output
violates Rule one point one our duty of competence, so
(24:25):
that brings us to candor. Can the lawyer violate the
duty of candor to the court by relying on AI
generated output without verification? The answer to that question is yes.
Rule three point three prohibits a lawyer from knowingly making
false statements of fact or law to a tribunal, and
Rule eight point four C prohibits a lawyer from conduct
(24:47):
involving any misrepresentation, and according to the ABA, even unintentional
misrepresentations generated by an AI tool are prohibited misrepresentations. Those
could include citations to non existent opinions, an accurate analysis
of authority, and use of misleading arguments. The ABA said
(25:11):
in Judicial Proceedings Duties to the Tribunal require lawyers, before
submitting materials to a court to review AI outputs, including
analysis and citation to authority, and to correct errors. And
the state ethics opinions on this issue say essentially the
same thing. Here's North Carolina. A lawyer's signature on the
(25:33):
pleading certifies the lawyer's good faith belief as to factual
and legal assertions Therein so, when a lawyer adopts an
AI tool's product as her own, she remains professionally responsible
for use of that product. Here's Alaska. Lawyers using generative
AI have an ethical duty to review the generative AI
(25:54):
output to ensure it is free from errors.
Speaker 3 (25:57):
And here's organ The most.
Speaker 6 (26:00):
Obvious way in which a lawyer could run a foul
of organ Rules three point three and four point one
is through the submission of and reliance on unverified and
fictitious cases, citations, quotes, or conclusions generated by AI. Of course,
there are many recent examples we all heard about where
(26:21):
lawyers are sanctioned for submitting AI output to the court
without checking it and the output ends up being false.
One of the first cases was Mada Versus Avianca comes
from the Southern District of New York in twenty twenty three.
They're a lawyer who submitted brief briefs that contained six
fictitious cases was sanctioned by the court with a fine
(26:43):
and the duty to notify his client and other judges
about the infraction. The lawyer thought that chat gpt is
a search engine with access to a comprehensive law library.
Speaker 3 (26:55):
It's not.
Speaker 6 (26:56):
When opposing counsel and the court raised questions about the
lawyer citations, what did he do?
Speaker 3 (27:02):
He asked cha gbt whether the cases were made up.
Speaker 6 (27:06):
Chat gpt told him they were not and could be
found on Westlaw that also was false.
Speaker 3 (27:12):
The judge was not impressed. A May twenty fourth article
in the Guardian cited a database that has identified one
hundred and six instances of AI hallucinations and false statements
in court documents.
Speaker 6 (27:29):
Those instances resulted in fines, suspensions from practice duties to
notify clients and others, an additional required clee. Indeed, Stanford
University researchers have found that large language model AI tools
hallucinate seventy five percent of the time. Now, two important
(27:49):
points about sanctions relating to AI. First, it's not just
the lawyers using the eye product who are on the hook,
it's every lawyer on the pleading. In February of this year,
the named partner of a prominent law firm was sanctioned
for the submission of fake AI generated authorities, even though
(28:10):
his only contribution to the brief was the basic idea
for the motion. Why was he sanctioned because his name
was on the pleading and under rule eleven, that's enough. Second,
it's not just legal argument that get arguments that get
lawyers into trouble. Lawyers have a similar responsibility over their
(28:31):
experts and other witnesses. Recently, the State of Minnesota, in
defending against a challenge to its defake law, submitted the
declaration of an expert on the dangers of AI and misinformation. Ironically,
that declaration cited two fake academic articles because the state's
(28:52):
expert on AI used AI to create the report and
didn't verify the output before submitting it, excluded the declaration
in its entirety and refuse the state's request to submit
an amended one. And the court then suggested that Rule
eleven imposes a duty on lawyers to ask witnesses whether
(29:12):
they have used AI in drafting their declarations and what
they have done to verify the truth of any AI
generated content. And again, it's not just court sanctions. AI
fabricated citations have caused attorneys to receive professional discipline. So,
for example, last year, the Middle District of Florida adopted
(29:35):
a Grievance committee's findings that a Florida lawyer violated Rule
one point three diligence and Rule three point three candor
by filing four separate pleadings with twenty six illegitimate case citations.
The discipline imposed on that lawyer included a one year
suspension from practice and completion of extra cle and counseling.
(29:58):
So turn into confidentiality. Does AI pose a risk to
the confidentiality of client information.
Speaker 3 (30:06):
The answer to that is yes. If you input.
Speaker 6 (30:09):
Information relate into a representation into an AI tool, it
could be disclosed to others in your firm for use
in other matters, It could be disclosed to people outside
the firm, and it could be retained by the AI
tool for an indefinite period of time. As the Texas
Ethics Opinion said, these are self learning tools which, by
(30:32):
their very nature store and incorporate user inputs into existing
data sets to improve their operation. The tools policies usually
even say that. For example, chat EBTs privacy policy makes
clear that it stores your input and may use it
later to provide services to other customers. Thus, lawyers who
(30:54):
input client information on or their own mental impressions about
the matter violate their duties of risk, violate violating their
duties of confidentiality. They could disclose information in violations number
one point six, and they could end up waiving the.
Speaker 3 (31:13):
Attorney client privilege. So how should a lawyer handle that risk?
Speaker 6 (31:18):
Well, first evaluate the risk that information will be disclosed.
Speaker 3 (31:22):
It's a fact driven analysis. Because each AI tool is different.
Speaker 6 (31:26):
Some tools do have a zero data retention policy in
which they retain either the inputs nor the outputs of
an interaction. Second, a lawyer would be well advised to
consult with IT experts in considering the security of an
AI tool, And third, lawyers should use reasonable care in
selecting AI vendors. As the North Carolina Ethics Opinion suggested,
(31:50):
a lawyer should ask one what is the experience, reputation,
and stability of the company, Two what security measures are
in place? And three what will happen to any information
if the company goes out of business, changes ownership, or
services are terminated. The ABA said is a baseline, all
(32:11):
lawyers should read and understand the terms of service, the
privacy policy, and contractual terms of any AI tool they use.
And if client information is to be shared with an
AI tool, then Rule one point six requires that a
lawyer get informed consent from the client. That requires the
(32:31):
lawyer to explain why the tool is being used, the
extent of any risk to the client, the particulars about
the kind of client information that will be disclosed, and
the ways that others might use that information to the
client's disadvantage. But the DC bar said clients typically should
not even be asked to consent to wide ranging disclosures
(32:53):
that could weigh the attorney client privilege, or make very
sensitive information available to third parties. Let's turn to supervision.
Rule five point one, of course, requires those running a
law firm to make reasonable efforts so that the firm
has reasonable assurance that all lawyers are complying with the rules.
(33:16):
Given the scores of problems that we've seen with lawyers
improperly using AI in violation of ethical duties, do you
think a firm is required to adopt AI policies to
address the use of AI by its lawyers and staff.
The answer to that also is yes. The new Jersey
Bar Task Force on AI issue to report, and it
(33:37):
says all law firms should adopt an organizational AI policy,
and it attaches as appendix two a sample policy. A
California ethics opinion likewise says managerial and supervisory lawyers should
establish clear policies regarding the permissible uses of generative AI
(33:57):
and otherwise make reasonable efforts to ensure a overall compliance
with the rules. The Kentucky Bar said, at a minimum,
those policies must make verification of every AI generated citation mandatory.
Kentucky also said although policies are an important step, they
(34:17):
are not the end of the firm's duties. A firm
should create a culture of security and privacy, and the
firm must train everyone on its policies. So in conclusion,
when using AI, please keep those four issues in mind competence, candor, confidentiality,
(34:39):
and supervision.
Speaker 3 (34:41):
And remember those are not all.
Speaker 6 (34:43):
Of the ethical issues that have been identified when you're
using AI, so be sure to check the specific guidance
in your jurisdiction regarding the use of AI and legal practice.
Speaker 3 (34:54):
And that's it on AI. Great, thank you to all
of our speakers.
Speaker 4 (35:03):
We've only got a couple of questions in the Q
and A function, so I just got to remind the
audience that if you have questions generated by any of this,
one of the pending questions is about the materials, and
I do not have the answer for that, but I'm
gonna just mention that if Kayla, if you want to
take up that question in the Q and A to
let folks know where they can get the materials, that
would be great. I'm going to take moderators progative and
(35:26):
kick off with a couple of questions that I had.
Speaker 3 (35:29):
Jack, your.
Speaker 4 (35:32):
Discussion about the model rule was kind of tied to
a particular case out of it sounded like Georgia primarily,
And I guess I'm just wondering if, in the course
of litigating that case, have you gotten any any sense
for how I guess how common this type of agreement
is across different jurisdictions. Is there a sort of a
(35:56):
proliferating problem here or is this a unique case that
you're experiencing.
Speaker 5 (36:00):
I don't think. I don't think it's a proliferating problem, Judge.
But you know, these guys have gone at each other
for a while, and the defendants don't want to litigate
with this plan of lawyer any longer, so they came
up with this in the course of a mediation, and
(36:22):
Georgia changed its rule to the current rule in two
thousand and one. I don't think there's been a lot
of litigation involving it when it comes up. The rule
seems to be unambiguous, so we don't have a trial
court ruling yet in either of two cases or two
(36:44):
and a half cases. But you know, I think that
the rules should be applied to both parties and the
agreement held avoid and unenforceable.
Speaker 4 (37:00):
Great, thanks Juck.
Speaker 3 (37:03):
David.
Speaker 4 (37:04):
I think something interesting about the Arizona rule. You know,
when when folks have discussed changes to address the problem
that the Arizona Rule highlights in terms of sort of
out of state non parties, folks who are just reading
media reports. To address the problem of those proliferating complaints,
(37:28):
they've talked about changes to standing, changes to standing to
bring a complaint, which of course is not what Arizona's
rule address. As you highlighted, why would you say that
Arizona's approach is the better approach or do you think
maybe there's more work to be done here in actually
(37:49):
closing off access to those types of complainants.
Speaker 3 (37:53):
Thank you, Judge Perkinson.
Speaker 7 (37:55):
There is a school of thought out there that would
like to see a standing requirement for bringing a bar complaint.
Speaker 3 (38:04):
In other words, you.
Speaker 7 (38:04):
Are directly part of that litigation, and it would foreclose
third parties from bringing any type of bar charge. I
will say that there are many instances where a third
party is a valid source of information for a bar
to make sure that the bar members are staying in
(38:25):
compliance and ethically compliant. I mean, I'll give you an
example of that trust account case in Arizona. If you
overdraw your trust account that bank is required to send
the bar a notice of overdrawn trust account and then
the bar will investigate why that account was overdrawn. And
they are obviously a third party. They're not part of
any litigation. They're not on either side, they're not a
(38:48):
testifying witness, they're not somebody's grandmother who's involved in the litigation.
Speaker 3 (38:52):
They are truly a third party.
Speaker 7 (38:55):
And we still want to get that information because that
could affect any clients if there's something financially improper going
on within the firm, and allow the bar to investigate that.
So there are Another example of that is drug and
alcohol abuse. A lot of times we get complaints that
are not necessarily someone that's a client, but someone's associated
(39:18):
with that attorney or that group of attorneys that has
issues with drug.
Speaker 3 (39:23):
Or alcohol abuse.
Speaker 7 (39:24):
And without that information, we would not be able to
make sure to get help to that individual who might
need it very much at that time. So, uh oh,
we've got the code. Everybody get the code now. Although
I see l Egos air way, I'm going to give
(39:45):
you a second to write that down and I'll continue,
all right, So we would not be able to get
(40:07):
that information otherwise. So from Arizona's perspective, And from my perspective,
I think that we still want to be able to
get that information, but we also don't want to involve
third parties in proceedings where they really have no vested
interests in the information other than that complaint.
Speaker 3 (40:25):
And we were seeing that a lot.
Speaker 7 (40:27):
We were seeing instances where things would be disclosed through
responses and all of a sudden they would go out
to the public realm, and albeit without that response and
viewing that response, it would have never been put into
the public purview because there are no confidentiality rules once
that complaintant gets that response on.
Speaker 3 (40:47):
Where there are, and there are various other protections that
are in place otherwise.
Speaker 7 (40:52):
So from my perspective, I think that Arizona's rule again
balances those interests to making sure that the bar can
step in and investigate something.
Speaker 3 (40:59):
It needs to invest gate.
Speaker 7 (41:00):
But on the other hand, it doesn't provide a free
flow of information that a person normally would not be
entitled to since they were not involved in the litigation itself.
So I'm going to step back for just a second,
because I understand that there was some issue with regard
in the materials, and I'm going to tell you what
Rule fifty three was amended to be, just so you
have kind of a background.
Speaker 3 (41:22):
Rule fifty three Subsection.
Speaker 7 (41:23):
A states an individual or entity will be a complaintant
regarding a charge if they have had an attorney client
relationship with the responderant, direct and specific first hand knowledge
of the conduct described in the charge, or became aware
of the conduct.
Speaker 3 (41:37):
In their role as a judicial officer.
Speaker 7 (41:40):
If a charge is submitted by the individual entity that
does not meet one of these criteria, the state bar
will be the complaint and pursue the matter accordingly. And
it goes on to talk about the different types of things,
but you can see we really limit access to information
if you are not part of that litigation, and we
want the focus to be on what happened, not necessarily
(42:01):
a free flow of information, and open up an attorney's file,
because a lot of times, in order to respond to
a charge, the attorney really has to go into detail
about who their clients are, what happened, some kind of
thoughts and impressions, and a lot of information that obviously
is not normally out within the public realm. So we
think we balance those interests in Arizona. And if I
could just have a second.
Speaker 3 (42:21):
I was going to answer something about on the AI issue.
Speaker 7 (42:23):
As well, because we've seen a really big spike in
complaints regarding AI usage by the attorneys. I think what
everybody should keep in mind on that is that AI
is a tool. It is not a substitute for an
attorney's judgment and input. It is just a tool, and
you really need to treat it like that, because if
(42:43):
you don't sitecheck, if you don't independently site check outside
of that, we see that's the spike in cases people
are using that and just filing those pleadings, and of
course the judicial officer catches it and it always generates
a complaint right after that. So keep in mind that
it is a tool, not a substitute for your judgment
(43:06):
as an attorney, you should always check as soon as
you sign, you should always check.
Speaker 3 (43:10):
The other issue that I kind of just would like
to touch on on that is that a.
Speaker 7 (43:13):
Lot of times also disclose you to your client that
the firm or the attorney is going to use AI
is also a good idea because sometimes we also see
complaints that on billing issues about how that AI is
built out and how that and who is going to
be responsible for the AI costs and what those costs
are going to be. So disclosure in putting that in
(43:34):
a place with your client prior to representation or part
of the representation agreement is a good idea so you
don't generate those subsequent complaints.
Speaker 3 (43:43):
Thank you, Judge Perkins.
Speaker 4 (43:46):
Thanks David phil Unsurprisingly, a significant number of the pending
questions relate to AI, so I'm just going to drop
in that rather than asking my own. But one of
the early questions did address something that I think is
a broad question and it's one that I've had. You know,
you've given us some cautionary guardrail kind of areas to
(44:07):
think about in using AI, And the question asked, you know,
based on these concerns and the findings, is it currently
unethically risky per se for an attorney to involve generative
AI in legal practice.
Speaker 6 (44:24):
Yeah, that's a good question, given everything we just talked
about in all the cases that you see. But as
Judge caunan and just said, it is a tool, and
I think it's a very effective, powerful tool.
Speaker 3 (44:34):
I don't think it's too risky to use, but you
just need to verify the output.
Speaker 6 (44:39):
But still think about how much work you can do
to get a head start on the research, on the writing,
on reviewing documents. As long as you review the output
and verify it in a reasonable way, you can save
a lot of time with this tool. So I don't
think it's risky. I do think it requires understan in
(45:00):
the tool that you're using exp limitations and then using
it accordingly.
Speaker 3 (45:08):
Thanks.
Speaker 4 (45:09):
We're going to pop back to Jack's topic for a moment.
We have a question that notes that you know, we've
used the language imposed, which is slippery. If a defendant
asks as part of settlement negotiation and the lawyer agrees,
should we consider that to be you know, quote unquote imposed.
What are your thoughts, Jack, Sorry, Jack, you're muted.
Speaker 6 (45:39):
Yes, I think that.
Speaker 5 (45:42):
Keep in mind what the rule starts with a lawyer
shall not participate in offering or making such an agreement,
and the dynamics of the settlement favor the client's interests
or the lawyer's interests in pursuing future litigate So I
think I.
Speaker 6 (46:03):
Think imposed is kind of.
Speaker 5 (46:06):
The way Rotundan and Zinkowski think about it.
Speaker 3 (46:10):
And if you want a settlement then you may have.
Speaker 5 (46:14):
Then the client doesn't care whether you represent somebody against
that defendant down the road or may not care but
really has nothing to say about it. So I think
the answer is if the defendant asks this part of
settlement agreement and the lawyer agrees, that is imposed or
(46:35):
otherwise in violation of the rule because somebody offered and
both parties made an agreement.
Speaker 3 (46:45):
Great, Thank you, Jack.
Speaker 6 (46:48):
David.
Speaker 4 (46:49):
We've had a question, are there any practical mechanisms to
insulate political or partisan court officers attorneys general? I know
there's been a significant increase in complaint against DJ line attorneys.
I was the subject of one of these complaints in
an election case. The judge it as well. What are
(47:10):
the practical mechanisms to insulate these sort of folks from
politically driven bar complaints? How do we prevent such complaints
from hamstringing elected officials jobs?
Speaker 7 (47:22):
In terms of practical mechanisms in Arizona, I don't think
there's a practical mechanism that says you can't file the
bar complaint. We have always allowed anybody who wants to
file the bar cleping to do that. What I think
our rule does is it takes the complainants out of
the equation and it just allows the bar to look
at the charge itself, and that is important because instead
(47:48):
of becoming a complaint driven issue, it becomes a bar
driven issue, and we are just able to focus more
in on the conduct and what happened versus the political
nature of the background and whether you are on one
side of the aisle or the other side of the aisle,
because from a bar's perspective, that should not be part
(48:08):
of the equation. It should really be based on conduct
and what you did, not who you are or what
you're aspiring or what you're touting at that particular time.
And sometimes that's a hard distinction for a lot of
people to make. I mean, I wouldn't disagree that sometimes
based upon the bar itself, it could have different connotations
(48:29):
and different implications. But we as someone who looks at
these charges, should always be driven by the facts, not
by political implications of what we do or how we
do it. So it was a very long way of
saying I don't think there's anything practical, but a lot
of that rests with the discretion of the bar people
(48:50):
themselves and being able to say I'm going to look
at the facts and not get worked up about the
political nature of that because in Arizona we had a
lot of that political nature coming through, and it was
up to the bar to kind of sort through that
and be able to only talk about if there's a
legible conduct, not the politics behind that kind of drew
(49:14):
a lot of those independent complaints.
Speaker 4 (49:19):
Thanks Steven, Phil Coming back to you, this is an
interesting question. Do you think that sports and or state
bars will eventually treat minor hallucinations as forgivable site checking errors?
It seems that there needs to be some allowance for
AI error if there is going to be widespread adoption
(49:40):
of generative AI by attorneys. And I'll just say this
is particularly interesting to me because I recently had a
case in which an entire section of an attorney's brief
made an argument that I just knew to be legally wrong,
and literally every citation in the section was either or
incorrect statement about what was in the in that section.
(50:05):
So I'm not feeling particularly forgivable about something like that.
It was a lot of extra legwork for us to
run that down. But there is an interesting point here
about the widespread adoption of generative AI by attorneys.
Speaker 3 (50:16):
What are your thoughts?
Speaker 6 (50:18):
Yeah, I think actually it could be the other way,
I think courts and bar associations might look at the
failure to verify AI output as unforgivable. And I know
some courts are having issuing orders, So the Northern District
of Texas is one where they have their own order
(50:39):
on the use of AI and what you have to do.
You have to disclose it you're using it, and there
are some other requirements as well. So definitely, if you're practicing,
make sure you're aware whether or not the court you're
before or the judger before has any special rules or
orders governing the use of AI. But I do think
(51:00):
think as AI becomes more and more of a thing,
it's going to be incumbent upon anyone relying on it
to verify each source. So I think it's different from
like a typo or some other forgivable error. If you
literally have a case that cited that doesn't exist, I
think one strike is going to be enough.
Speaker 3 (51:27):
And Judge Ferkins John mute, thank.
Speaker 4 (51:30):
You, right. So I think arguably a follow up to that,
assuming AI can be ethically used and that and that
we're going to have to operate within these bounds and
there's going to be this sort of strict nature of
the of the use. It's it's I think Jeff and
(51:51):
Trell points out this as going to be a part
of our billing in the future. What does that look like?
So how do you build for the purported time saving?
Can you incorporate value bill scenario? And to the point
that I think Judge Cananan had raised, what are your
thoughts on disclosure at the outset of the representation as
(52:11):
AI use for purposes of billing?
Speaker 6 (52:15):
So I'll address the billing question first, Judge Perkins, because
it's a good one. At the beginning, I noted that
for the most part, these state opinions agree, but I
think i'm billing is one area where there is an agreement.
In fact, Virginia the Supreme Court now has before a
proposed rule on AI that would allow lawyers to benefit
(52:44):
from the time savings and not forget about it, like
if they decide to invest in AI, they can recapture
some of the.
Speaker 3 (52:52):
Value and cost of that investment.
Speaker 6 (52:56):
Other jurisdictions are not as flexible, and they.
Speaker 3 (53:00):
Really suggest that lawyers.
Speaker 6 (53:01):
Should not if they have time saving that should entirely
be written off. Essentially, Now, as Judge cunan and mentioned,
there might be occasions where you actually build a client
for particular AI tools, similar to some firms billing for
Westlaw usage. But apart from that, if you literally are
now doing something in ten minutes which used to take
(53:25):
ten hours. Most jurisdictions have addressed that saying, look, you
can only build for ten minutes, and I think the
Virginia approach is a little more flexible. So the bottom
line is on billing, definitely pays to find the guidance
in your jurisdiction, whether it's an opinion or just some
advisory material, to see what the state thinks about billing issues.
Speaker 4 (53:53):
So following a little up a little bit on the
disclosure element to that. You know, as you noted filed,
there are some places that have local rules on point.
Occasionally it's for a particular judge, if not the entire court,
requiring disclosure and certification for use of AI. Have you
(54:13):
seen much in the way of guidance or directives in
the absence of such mandating rules for what type of
disclosure is required or should be done?
Speaker 6 (54:24):
I guess so what I've seen in the state advisory
opinions and other guidance is really a discussion of disclosure
of the client.
Speaker 3 (54:36):
As Judge q Nanon said.
Speaker 6 (54:38):
You know, we do have a duty to keep your
client informed, and part of that is to let your
client know if you're using AI, especially if it could
be material to the representation in terms of decisions being
made in actions being taken.
Speaker 3 (54:52):
I haven't seen much written up in terms of.
Speaker 6 (54:55):
Disclosure to a court if the court doesn't have rules,
and I don't I'd be interested to hear what Judge
Canana thinks about this, but I don't know that you'd
have any kind of ethical responsibility.
Speaker 3 (55:06):
To disclose use of AI in the absence of rules
saying you do. And just one quick thought, you know, Westlaw's.
Speaker 6 (55:17):
Natural language searching, which has been around for a long time,
is a form of AI that we've all been using
for quite a while.
Speaker 3 (55:25):
So I don't know.
Speaker 6 (55:26):
It seems to me that the more sophisticated AI we
have now is just an extension of that, And I
don't think it would have to be disclosed unless the
court said we want to know.
Speaker 3 (55:38):
So there are particular.
Speaker 7 (55:41):
Judges and particular jurisdictions that have very specific rules. For
my years on the bench, I didn't care how you
produced it, just that it was accurate, and it was
true because that's what you were signing to when you
signed it, right, And whether your associate did it or
whether you did it, or whether your paralegal help with it,
however it worked out, you were the one signing and
(56:03):
you were the one responsible, and so as long as
it complied with that, that's all that I really required
to be disclosed. But there are there judges who take
a different view of that, and other jurisdictions that take
a different view of that.
Speaker 3 (56:16):
It, you know, part of.
Speaker 7 (56:18):
The billing issues that we see, and we had a
couple of cases like.
Speaker 3 (56:22):
This where they were you're right.
Speaker 7 (56:25):
Kind of value billing, and what they were doing was
they were billing at the partner's hourly rate for AI work.
And it came through on what we call as a
China doll Alphia David, which means that's something now we
submit to the court, submitted to the court in terms
of attorney's fees of ward against another party. And so
immediately the other side was investigating that and countering that
(56:46):
with you know, why am I paying for this when
it was AI generated or AI produced. It did take
a little more digging to get to that and that's
when an inquiry had to happen that normally would not
have to happen in front of the court. So you
should be careful in the way that you build, how
you do, and what your disclosures are.
Speaker 3 (57:04):
But in terms of the.
Speaker 7 (57:06):
Ethical obligations, I think at this point, based upon the rules,
you don't have to disclose that to the court. You
have a little bit of different duty to your client
as to how you do and how you bill. But
I haven't seen any courts that are requiring that to
be disclosed apps in a specific order that they do
in their scheduling order or in their standing orders of
the court, depending upon the division that you're in front of.
Speaker 4 (57:30):
So Charles Wilson asks, will the court supports sanctions and
compensation to the other side for time spent checking the
opponent's bad AI generated documents?
Speaker 3 (57:42):
So interesting question, you know, Phil or.
Speaker 4 (57:45):
David, if you want to have thoughts, I will tell
you if if I have to spend a bunch of
time running down false sites are to be more clear,
if my law clerks have to do that, I am
probably going to be at least favorably inclined towards that
sort of fee request. But that Phil, have you seen
anything along those lines or do you have any thoughts
(58:05):
on that from the research you've done, And.
Speaker 6 (58:07):
That's good to know, Judge. So I do what I've
seen in the opinions on the issue of monetary sanctions
is typically judges looking at the market, meaning what have
other courts imposed for fake citations, maybe even per citation.
But there does seem to be some desire whether it's
(58:30):
ten thousand dollars somewhere around there per fake citation. But
I've seen judges express some concern that they want to
be consistent and I haven't really seen it so far
based on the amount of time that the opposing party
took to identify and correct it.
Speaker 3 (58:48):
But maybe in Arizona that would be that would work.
Speaker 7 (58:54):
So I think that it depends upon the type of
scene you're talking about. I have seen individuals lit sanctions
that relate to a particular motion and being able to
address having to respond to that motion that had hallucinations
in it or fake citations versus an overall of ward
of attorneys fees, and I think those are two kinds
of different things, and I've seen them more on the
(59:15):
individual basis, and I've seen judges that have awarded that
based upon having to what when Esson's turned out to
be a frivolous motion or a frieblest basis. So I
think they could be inclined to do that on an
individualized motion based practice, but maybe maybe a little different
story in terms of an overall case approach.
Speaker 4 (59:35):
Great, well, we are bumping up the top of the
next hour, and so I will just say thank you
to all the speakers and ask Kayla if there is
any closing information you'd like to provide to our attendees.
Speaker 2 (59:49):
Well, thank you so much. I'd like to start with
thanks to our panel. We really appreciate you all joining
us and sharing our expertise and insight on these topics.
Thanks also to our audience for joining. And there is
a last cle comment for those seeking CL tenants. The
attendance reporting form has just been dropped in the chat.
Please open that and plead it. Following this webinar, a
(01:00:11):
CoA with your calculated CL credit will be emailed to
the email address you provide within a week, along with
any pertinent CL credit reporting information that you need for
your state. If you do not receive the follow up
or have issues opening the link, Please reach out to
us at CLEE at fedsoc dot org and we will
get in touch with you. We also welcome listener to
(01:00:31):
feedback on our general programming at fedsoc Forms at fedsoc
dot org. And with that we can wrap up. Thank
you all again, we really appreciate you joining us today.
This program is adjourned.
Speaker 1 (01:00:42):
Thank you for listening to this episode of fedsoc Forms,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot or org
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