Courts are continuing to implement or consider certification rules regarding the use of AI. One judge published a call for education over regulation.

The judge in question is Judge Scott U. Schlegel, who is a Louisiana state court judge and was recently elected to the Louisiana Fifth Circuit Court of Appeal, taking office back in August. His bio says: “During Judge Scott Schlegel’s decade on the trial court, he designed and managed ‘what may be one of the most advanced courts in the country for delivering justice online,’ according to one leading legal tech journalist.”

Judge Schlegel’s open letter – A Call for Education Over Regulation (available here) – was written a couple of weeks ago, but I just found out about it via a LinkedIn share from Nick Wittenberg (hat tip here!). Here’s how the letter begins (links added to rules references):

“Dear Colleagues –

In my humble opinion, an order specifically prohibiting the use of generative AI or requiring a disclosure of its use is unnecessary, duplicative, and may lead to unintended consequences. And I say this as a sitting Judge in the State of Louisiana, who frequently speaks on the topic.

The legal profession is already guided by stringent ethical standards and professional responsibilities. Rules 1.1, 1.6, and 3.3 of the ABA Model Rules of Professional Conduct adequately address issues of competence, confidentiality, and candor, all of which are pertinent to the use of generative AI technologies. And Comment 8 to Model Rule 1.1 even includes explicit guidance on lawyers’ use of technology. Further, Rule 11 of the Federal Rules of Civil Procedure (and each state equivalent) already mandates that anyone who files a pleading or motion with the court must certify its correctness and veracity by way of signature. An additional, AI-specific order is not only redundant but could also create confusion given the rapid adoption of such tools in everyday products, like Westlaw, Lexis and Microsoft Office. Will the court require a certification if a lawyer simply uses generative AI to clean up a few paragraphs that don’t even contain a single case citation?

Moreover, the rapid evolution of AI technology means any specific order could quickly become outdated, limiting its practical utility. Over regulation in this area might also inadvertently stifle innovation and discourage the legal profession from leveraging beneficial technologies.  It is crucial that lawyers retain the ability to exercise judgment in how best to incorporate generative AI tools, adhering to our existing ethical framework. This approach encourages a balanced integration of technology, fostering innovation while upholding the core values of our profession.

In summary, while the intention behind an AI-specific order is understandable, I believe our current rules are sufficiently robust to encompass the challenges and opportunities presented by generative AI. A focus on education and adaptability within these existing frameworks would be a more effective way forward.”

Great points, right? I think so. What Judge Schlegel discloses next might be surprising:

“By the way, in the spirit of full transparency, I wanted to let you know that I drafted this letter using ChatGPT-4. And I assume that such a revelation might now prompt you to reevaluate my comments with a more skeptical lens, which underscores my final point: the concern that judges may inherently be dismissive of arguments that are drafted with the assistance of generative AI, perceiving them as less authentic or persuasive. However, this perspective overlooks a crucial aspect. Generative AI, much like any tool, is only as effective as the legal expertise guiding it. The value of content generated through AI parallels that of a first draft by a junior associate or law clerk. We don’t mandate disclosures for such assistance because the ultimate responsibility for the accuracy of the filing rests with the attorney or self-represented litigant.”

I love that he disclosed the use of GPT-4 in the letter! Proper use of generative AI tools – treating them as tools, with the output to be reviewed and verified – is and should be OK. Misuse of generative AI tools – including expecting them to do your work for you without reviewing for accuracy – will never be OK.

See the difference? Judge Schlegel does – and demonstrated that he does.

So, what do you think of Judge Schlegel’s open letter A Call for Education Over Regulation? Do you agree? Please share any comments you might have or if you’d like to know more about a particular topic.

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