Old McDonald had a Dell: AI, AI, Oh!

by Ken Greene

Ken Greene is an attorney at his SoCal firm, the Law Office of Kenneth Charles Greene. He began his career with BankAmerilease in 1981 and has been a partner in several firms, including Ross & Ivanjack, one of the first law firms devoted exclusively to the equipment finance industry. He continues representation of lenders, lessors and brokers in contract preparation, compliance, licensing, litigation and transactions. Greene is presently General Counsel to the AACFB, has served twice on the BOD of NEFA and was its Legal Committee Chairman, Legal Line Editor, Regional Committee Chair and Conference Chairman. He was Leasing News Legal Editor since early 2022. Greene received his BA from Brandeis University and his JD from Santa Clara University School of Law. He is frequent writer and speaker on matters of leasing law. Greene’s passions are family, music, travel and more. In his “spare” time, he plays and records with several bands and produces concerts and charity events.

Kicking off 2024, Ken Greene of the Law Offices of Kenneth Charles Greene dives into Artificial Intelligence and its implications in business settings. With a pinch of caution and a dash of reality, Greene shares some secrets of the sauce that is AI.

I admit that once, I thought that AI was a steak sauce. My mi-steak! It may be a special sauce, but I do not recommend pouring it into your computer. In fact, despite its ubiquity and influencer-type popularity, I caution against the use of generative artificial intelligence for certain tasks, especially in business, and recommend proceeding with vigilance in its use in that space.

By now, almost everyone has heard the sorry tale of the two attorneys who used AI in their court briefs. In January 2023, a federal judge imposed $5000 fines on two attorneys and a law firm for submitting fictitious legal research. It happened again a few months later in New York. More recently, the infamous Michael Cohen did the same thing.

These are not isolated cases of plagiarism. They are examples of a growing trend in using “hallucinations,” i.e., cases that don’t exist, to convince a court to rule in your favor.

AI is not much different from Google or any other search engine; it relies on information that may not be verified or even verifiable. It could be based on “fake news.” I imagine this is a tech glitch that one day will be rectified, but as far as I know, it has not. But in some ways, AI is more dangerous if its models are improperly trained, incomplete, or biased, creating incorrect predictions or “hallucinating.”

On November 16, 2023, the State Bar of California acted, the first in the nation. The following are guidelines, not amendments to the Rules of Professional Conduct, but they can be used in disciplinary hearings. The guidelines include:

  • Lawyers must not input confidential client information into any generative AI solution lacking adequate confidentiality and security protections.
  • Lawyers must anonymize client information and avoid entering details that can be used to identify the client.
  • Lawyers must not input confidential client information into a generative AI solution unless the lawyer knows that the provider will not share the information with others or use the information for itself.
  • A lawyer must ensure competent use of technology, including the associated benefits and risks, and apply diligence and prudence concerning facts and law.
  • A lawyer’s professional judgment cannot be delegated to generative AI and always remains the lawyer’s responsibility. A lawyer should take steps to avoid over-reliance on generative AI to such a degree that it hinders critical attorney analysis fostered by traditional research and writing. For example, a lawyer may supplement any AI-generated research with human-performed research and supplement any AI-generated argument with critical, human-performed analysis and review of authorities.
  • The lawyer should consider disclosing to their client that they intend to use generative AI in the representation, including how the technology will be used and the benefits and risks of such use.
  • A lawyer may use generative AI to create work product more efficiently and charge for actual time spent (e.g., crafting or refining generative AI inputs and prompts, or reviewing and editing generative AI outputs). A lawyer must not charge hourly fees for the time saved using generative AI.
  • A fee agreement should explain the basis for all fees and costs, including those associated with the use of generative AI.

There are other guidelines, but this provides a reasonable outline of what the agencies overseeing attorneys’ conduct will look at over the next few years, which I imagine will extend far beyond California.

The bottom line is that AI is not a steak sauce, but it can enhance your presentation. However, it comes with restrictions that should be heeded lest you want to face the consequences of unethical conduct.

The Law Office of Kenneth Charles Greene presents this article. All copyrightable text, the selection, arrangement, and presentation of all materials (including information in the public domain), and the overall design of this presentation are the property of the Law Office of Kenneth Charles Greene. All rights reserved. Permission is granted to download and reprint materials from this article to view, read, and retain them for reference. Any other copying, distribution, retransmission, or modification of information or materials from this article, whether in electronic or hard copy form, without the express prior written permission of Kenneth C. Greene is strictly prohibited. The materials available from this article are for informational purposes only and not to provide legal advice. You should contact your attorney for advice on any particular issue or problem. Using and accessing these materials does not create an attorney-client relationship between the Law Office of Kenneth Charles Greene and the user or viewer. The opinions expressed herein are the opinions of the individual author.

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