The Fifth U.S. Circuit Court of Appeals in New Orleans is contemplating a proposal that would require attorneys to confirm whether they employed artificial intelligence (AI) programs, including generative AI tools like OpenAI's ChatGPT, in drafting legal briefs. This proposed rule, issued on Nov. 21, marks what appears to be the first such rule among the 13 federal appeals courts in the United States. It aims to regulate the use of AI by lawyers appearing before the court.
Under the suggested regulation, attorneys and unrepresented litigants appearing before the court must confirm that if an AI program was utilized in creating a filing, both citations and legal analysis underwent a human review for accuracy. Attorneys providing false information about adherence to this rule could face invalidation of their submissions, accompanied by potential sanctions, according to the proposed rule. The public has the opportunity to provide feedback on the proposal until Jan. 4.
This proposed rule comes at a time when judges nationwide are addressing the rapid proliferation of generative AI programs like ChatGPT, considering the need for safeguards in integrating this evolving technology into courtrooms. The challenges associated with lawyers using AI gained attention in June when two New York attorneys faced sanctions for submitting a legal document containing six fabricated case citations generated by ChatGPT.
In October, the U.S. District Court for the Eastern District of Texas introduced a rule, effective Dec. 1, requiring lawyers using AI programs to "evaluate and authenticate any computer-generated content." The court emphasized that the output of such tools may be factually or legally incorrect, emphasizing that AI technology should not replace the abstract thinking and problem-solving capabilities of lawyers.
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