Technology has been a boon to many industries, saving costs, streamlining tasks, keeping data secure and paperless, and introducing new career opportunities. Law offices use technology to draft emails, to provide easy and instant access to extensive client information, e-file documents, and write briefs and motions in litigation. However, artificial intelligence (AI) can have pitfalls if attorneys fail to monitor the tasks for which AI is used.
High school and college students undoubtedly use AI to write essays or other research papers for them unless they are told not to. While it is not necessarily improper to use AI for such tasks, failure to do the required research or to check for errors or false representations can have consequences.
AI and Legal Malpractice
In the past year or so, national news reported that an attorney used AI to write a brief that was filed and presented in court. The judge quickly noted that the brief contained false citations and fabricated quotations. The attorney was sanctioned, but it could have led to a legal malpractice claim if the attorney’s client suffered substantial harm or damages as a result.
Like all professionals, attorneys are held to a certain standard of care. They must use or possess the reasonable skills, competence, and knowledge ordinarily possessed by other members of the legal community. This includes maintaining communication with clients, promptly responding to client inquiries, keeping them updated on the status of their case, and advising them of offers or other material developments. It also means doing the necessary research, knowing the applicable law, and applying that to properly advise clients and to advocate for them.
Using AI to write a motion or brief can benefit a client so long as the attorney carefully reviews and checks the contents and is assured that the work meets the standards of a reasonably competent brief. If AI can research applicable case law and statutes and create arguments to meet the facts of the case, then the client may save in legal costs and benefit from a well-written, thoroughly researched document.
How AI Can Lead to Legal Malpractice
In the example of the attorney who used AI to write a brief that contained fabricated case law and quotes, the court could have not only sanctioned the attorney but dismissed the case or ruled in favor of the opposing party, which could have had disastrous results. For instance, if material evidence that either would not have been admitted or should have been omitted if a properly written and argued motion had been made, the client may have lost a claim or been forced into an unfavorable result he had an excellent chance of winning or obtaining and suffered significant damages.
Attorneys can avoid legal malpractice claims when using AI by following some common sense practices:
- Thoroughly check the work. See if the cases cited exist and support the arguments and position for which you are advocating.
- AI may use or leak sensitive or confidential information to third parties or expose legal strategies that were used or intended to be used in negotiations or settlements. Carefully reviewing the contents to ensure that no trade secrets, privileged information, or other information that was not meant to be exposed is essential.
Not all improperly used or exposed client information warrants a legal malpractice claim. You or your legal malpractice attorney must show:
- An attorney-client relationship existed between the client and the attorney
- The attorney breached his duty of care by not reviewing the contents of a legal document that contained false information, and which was presented in court or used to misrepresent facts
- The misleading or fabricated contents and their use were the proximate cause of damages to the client
- The client suffered significant damage or harm as a result that can be verified and is not speculative
Consult a Legal Malpractice Attorney from Burns and Jain
If you discover that your attorney sent confidential information to another party or lost a motion or case because of the misuse of AI or other technology, consult a legal malpractice attorney from Burns and Jain. We can assess your claim and properly advise you on whether you have a valid legal malpractice claim.