CHARLESTON – The use of artificial intelligence (AI) is becoming increasingly prevalent in all aspects of life, but West Virginia attorneys are urged to exercise caution and be transparent when using AI-based tools in their daily work .
West Virginia’s Office of Disciplinary Counsel (ODC) released a legal ethics opinion on the use of AI by attorneys in the state. The ODC upholds the Rules of Professional Conduct that govern the actions of attorneys, conducts investigations, and recommends discipline.
“Artificial intelligence… is an evolving technology, and as it becomes more advanced, the capabilities of AI and its users will continue to grow, and the legal field is no exception,” wrote Council President Nicole A. Cofer. Disciplinary Lawyer, who approved the legal ethics opinion on June 14.
The opinion differentiates between non-generative AI, which uses existing data to provide transparent predictions and analysis, and generative AI, whose algorithms are less transparent and creates its own content based on a user’s requests. New content can include text, images and videos.
“Lawyers use non-generative AI without even realizing it, such as in legal research tools or with spelling and grammar tools associated with word processing programs,” Cofer wrote. “Lawyers are increasingly using forms of AI in their practices to improve the efficiency and accuracy of the legal services they offer their clients.
“However, to continue to meet their ethical obligations, lawyers must not only be aware of AI’s ability to provide efficient legal services to clients, but must also be careful to exercise independent judgment, communicate with clients , maintain confidentiality, guarantee fees and costs. be reasonable, comply with advertising regulations and supervise the work done by AI,” Cofer continued.
In law, AI is becoming a common tool when investigating and preparing cases. In some cases, it can help speed up the investigation to cite past cases and precedents. But in other cases, lawyers have been cited for using generative AI programs to draft legal briefs in motions, where sometimes the cases cited by the AI program do not exist at all.
According to the Missouri Independent, a lawyer in that state was fined $10,000 after it was discovered that many of the citations he included in a legal brief using AI were false. The court was forced to spend time using its resources to investigate the subpoenas and determine whether they were correct or false.
There is also the problem of bias, even in AI-generated content. Amy Cyphert, a professor at West Virginia University School of Law, said during a presentation to members of the West Virginia Press Association last year that attorneys must constantly review information provided or created by AI.
“Machine learning systems are only as good as the data they are trained on,” Cyphert said. “The concept of computer science is ‘garbage in, garbage out,’ meaning that if you have flawed data, any results they produce will be flawed. In law, and especially in the field of artificial intelligence and law, academics say, ‘bias in, bias out.’ A system designed to predict the likelihood that someone will reoffend may have been trained on biased historical criminal justice data.”
The legal ethics opinion encourages the use of AI by lawyers, but not its use to replace their own legal reasoning. Lawyers should review all AI-generated content for accuracy and freedom from errors, receive approval from clients before using generative AI, avoid sharing confidential information with AI programs, be aware of the potential use of copyrighted material by AI programs, and never use AI as a primary source.
“Technology such as AI can be used to complement the work of a lawyer and, while there is nothing inherently inappropriate about the use of AI or generative AI, a lawyer’s duties to his clients, the courts and the profession under the Rules of Professional Conduct remain unchanged. ”wrote Cofer. “While AI can streamline mundane and time-consuming tasks, lawyers must still use its skills along with their individual moral and professional judgment and, in short, remain lawyers.”
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