The US Court of Appeals for the Fifth Circuit made history on Tuesday by being the first US appeals court to suggest a novel rule requiring attorneys to confirm that they either did not utilize generative artificial intelligence (AI) programs, such as Chat GPT, for drafting filings, or that humans reviewed AI-generated content. The purpose of this proposal is to establish transparency and accountability in the use of AI in legal processes.
While AI, as noted in a report by law firm software company Clio, offers advantages like speed, efficiency, and cost-effectiveness, it also introduces risks such as errors, ethical concerns, regulatory issues, and algorithm bias. In February, the law firm Allen & Overy integrated Harvey, an AI platform specializing in machine learning and data analytics, into its global practice.
In a legal context, the use of AI brings challenges such as “hallucinations,” unpredictability, and response divergence. Hallucinations refer to incorrect outputs that might lead to legal liabilities, harm to consumers, or regulatory violations. Unpredictability arises from a lack of transparency, making it difficult to verify whether the model meets quality and accountability standards. Response divergence is another concern, given that AI models may provide multiple answers to the same question. To address these risks, researchers propose the implementation of explainable artificial intelligence (XAI) models, which can offer reasoning behind AI-generated predictions or recommendations, enabling users to assess whether AI is providing accurate justifications.
In June, Judge Brantley D. Starr of the US District Court for the Northern District of Texas banned the use of AI in his courtroom, emphasizing that generative artificial intelligence is created by humans without having taken an oath to set aside personal biases. Another proposed AI-related rule from the same court underscores that, despite the helpfulness of technology, it can never substitute for abstract thinking and problem-solving.
Under the new rule, attorneys found misrepresenting their compliance with the court’s requirements could face consequences, including having their filings removed and sanctions imposed. The 5th Circuit is accepting public comments on the proposed rule until January 4.
